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Case T-708/18: Judgment of the General Court of 24 October 2019 — ZPC Flis v EUIPO — Aldi Einkauf (FLIS Happy Moreno choco) (EU trade mark — Opposition proceedings — Application for EU figurative mark FLIS Happy Moreno choco — Earlier national figurative marks MORENO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Substitution of the list of goods covered by the earlier national figurative marks — Rectification of the decision of the Board of Appeal — Article 102(1) of Regulation 2017/1001 — Legal basis — Previous decision-making practice — Legal certainty — Legitimate expectations)
ECLI:EU:UNKNOWN:62018TA0708
62018TA0708
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23.12.2019
Official Journal of the European Union
C 432/51
(Case T-708/18) (*)
(EU trade mark - Opposition proceedings - Application for EU figurative mark FLIS Happy Moreno choco - Earlier national figurative marks MORENO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) - Substitution of the list of goods covered by the earlier national figurative marks - Rectification of the decision of the Board of Appeal - Article 102(1) of Regulation 2017/1001 - Legal basis - Previous decision-making practice - Legal certainty - Legitimate expectations)
(2019/C 432/60)
Language of the case: English
Parties
Applicant: ZPC Flis sp.j. (Radziejowice, Poland) (represented by: M. Kondrat, lawyer)
Defendant: European Union Intellectual Property Office (represented by: K. Kompari and H. O’Neill, acting as Agents)
Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Aldi Einkauf GmbH & Co. OHG (Essen, Germany) (represented by: N. Lützenrath, U. Rademacher, C. Fürsen and M. Minkner, lawyers)
Re:
Action brought against the decision of the First Board of Appeal of EUIPO of 13 September 2018 (Case R 2113/2017-1), relating to opposition proceedings between Aldi Einkauf and ZPC Flis.
Operative part of the judgment
The Court:
1.Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 September 2018 (Case R 2113/2017-1) in so far as it refuses registration of the mark applied for in respect of the following goods: ‘coffee substitutes; tea; cocoa; cocoa products; chocolate-based beverages, all aforementioned goods also as instant form’, with the exception of cocoa as regards the latter;
2.Upholds the opposition in respect of all the goods and services referred to in the application for registration, with the exception of the services in Class 35 corresponding to the following description: ‘Retailing or wholesaling of cookie molds; wholesaling and retailing of cookie molds via the internet’;
3.Dismisses the action as to the remainder;
4.Orders each party to bear its own costs.
(*) Language of the case: English.
(1) OJ C 44, 4.2.2019.