18.9.2023

EN

Official Journal of the European Union

C 329/30

(Case T-442/23)

(2023/C 329/42)

Language in which the application was lodged: English

Parties

Applicant: Giuliani SpA (Milano, Italy) (represented by: S. de Bosio, lawyer)

Defendant: European Union Intellectual Property Office

Other party to the proceedings before the Board of Appeal: Health and Happiness (H&H) Hong Kong Ltd (Hong Kong, China)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: European Union figurative mark Swisse (Colours red, black and white) — European Union trade mark No 3 252 152

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the First Board of Appeal of EUIPO of 31 May 2023 in Case R 2185/2019-1 RENV

Form of order sought

The applicant claims that the Court should:

—annul the contested decision;

—uphold the application for declaration of invalidity of the trade mark at issue;

—order that defendant and the EUTM Proprietor to jointly and severally pay all costs.

Pleas in law

—The contested decision is held ultra petita and in disregard of the res judicata on the factual assessments of the Cancellation Division and of the first Board of Appeal decision;

—Infringements of Article 41 of the Charter of Fundamental Rights of the European Union, of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, of Article 32(i) of Commission Delegated Regulation (EU) 2018/625 and of Articles 71(1) and 94(1) of Regulation (EU) 2017/1001 of the European Parliament and of the Council;

—Infringement of Article 7(1)(g) of Council Regulation (EC) No 40/94;

—Infringement of Article 51(1)(b) of Council Regulation (EC) No 40/94.