10.9.2018

Official Journal of the European Union

C 319/12

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(Case C-320/18 P)

(2018/C 319/15)

Language of the case: English

Parties

Appellant: Crocs, Inc. (represented by: J. Guise, Solicitor, D. Knight, Solicitor)

Other parties to the proceedings: European Union Intellectual Property Office, Gifi Diffusion

Form of order sought

The appellant claims that the Court should:

—annul the contested decision.

—In the event that the Court of Justice upholds the first plea in law, the appellant requests that the Court additionally annuls the Board of Appeal Decision and upholds the First Instance Decision.

—In the event that the Court of Justice upholds the second plea in law, the appellant requests that the contested decision be set aside and the General Court be instructed to restrict its consideration to the factual and legal questions addressed in the Board of Appeal Decision. If the General Court concludes that it cannot uphold the Board of Appeal Decision when the Website Disclosures are considered in isolation, then the appellant requests that it refer the matter back to the Board of Appeal for further consideration as to whether, in light of the evidence provided, the Fort Lauderdale Disclosures and Sales Disclosures fall within the Article 7 exception.

—In the event that the Court of Justice upholds the third plea in law, the appellant requests that the Contested Decision be set aside as regards the application of Article 7 and the General Court be instructed to re-assess the evidence giving proper force to the wording of Article 7 and applying a balance of probabilities test.

—In the event that the Court of Justice upholds the fourth plea in law, the appellant requests that the Contested Decision be annulled and the matter remitted to a different Chamber of the General Court for further consideration.

—The appellant further requests that the Court of Justice makes an award of costs in its favour pursuant to Article 137 and 184 the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

1)First Plea in Law — Infringement of Article 63 CDR

The General Court erred in its interpretation and application of Article 63 by failing to annul the Board of Appeal Decision as far as it allowed admission of new evidence.

2)Second Plea in Law — Infringement of Article 61 CDR

The General Court infringed Article 61 by in effect determining factual questions which had not been determined by the Board of Appeal in its decision and were not within the scope of the appeal. As such the General Court went outside of its jurisdiction to annul or alter the Board of Appeal Decision.

3)Third Plea in Law — Infringement of Article 7 CDR

The General Court infringed Article 7 by applying the wrong standard of proof. In doing so, the General Court also suggested that the test requires specific items of evidence, rather than applying the legal test to the evidence as filed in the proceedings. Finally, the General Court incorrectly dismissed the appellant's argument that a quantitative factor may be taken into consideration when applying Article 7.

4)Fourth Plea in Law — Irregular Constitution of the General Court (Seventh Chamber)

The Seventh Chamber of the General Court was improperly constituted. Judge Kornezov had been appointed to the General Court from the Civil Service Tribunal in 2016. However, it has since been found that Judge Kornezov's appointment to the Civil Service Tribunal was vitiated by a procedural error. Had Judge Kornezov not been sitting on the Civil Service Tribunal in 2016, his appointment to the General Court would not have been possible before 2019. As such, it appears that his appointment to the General Court is also vitiated by a procedural error. The Contested Decision must therefore be set aside and the matter remitted back to a different Chamber of the General Court.

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Article 7 of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002, L 3, p. 1) (‘CDR’).

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