16.4.2018

EN

Official Journal of the European Union

C 134/30

(Case T-90/18)

(2018/C 134/43)

Language in which the application was lodged: Spanish

Parties

Applicant: Ramón Guiral Broto (Marbella, Spain) (represented by: J. de Castro Hermida, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Gastro & Soul GmbH (Hildesheim, Germany)

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 ‘Café del Sol’ — European Union trade mark No 6 104 608

Procedure before EUIPO: Opposition proceedings

Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 4 December 2017 in Case R 1096/2017-4

Form of order sought

The applicant claims that the Court should:

—Annul the contested decision and declare the opposition based on the earlier trade mark belonging to the opponent, Mr Ramón Guiral Broto, Spanish trade mark No 2348110, in Class 42 of the International Classification, well founded.

—Uphold the decision of the Opposition Division refusing Community trade mark application No 6 104 608, filed by the German company gastro & soul GmbH, in respect of ‘services for the provision of food and drink, temporary accommodation, catering’ in Class 43 of the International Classification, on the ground that there is a likelihood of confusion on the part of consumers as a result of the coexistence of the marks at issue given the strong verbal similarity and the identity in terms of their application. In the alternative, if the General Court lacks jurisdiction in that regard, it should refer the matter back to the Board of Appeal of the Office for Harmonisation in the Internal Market, provided that the opposition is deemed to be well founded.

—In the further alternative, (i) annul the contested decision because of inconsistency and infringement of the applicant’s rights of defence and legal certainty by having expressly denied him the possibility of submitting a full translation of the opponent’s earlier trade mark in the context of Case R 1096/2017-4, thereby defeating one of the main purposes of the referral of the case back to EUIPO’s Board of Appeal ordered by the General Court on 13 December 2016 in Case T-549/15, and (ii) order a further referral back to EUIPO’s Board of Appeal to remedy that situation and settle the dispute.

Plea in law

—Infringement of Article 8(1)(b) of Regulation No 2017/1001.