13.1.2020

Official Journal of the European Union

C 10/30

(Case T-276/17) (*)

(EU trade mark - Invalidity proceedings - EU figurative mark Tropical - Earlier national word mark TROPICAL - Relative ground for refusal - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001) - Similarity of the goods - Likelihood of confusion - Coexistence of the marks)

(2020/C 10/40)

Language of the case: English

Parties

Applicant: Tadeusz Ogrodnik (Chorzów, Poland) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

Defendant: European Union Intellectual Property Office (represented by: J. Ivanauskas, acting as Agent)

Other party to the proceedings before the Board of Appeal of EUIPO: Aviário Tropical, SA (Loures, Portugal)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 14 February 2017 (Case R 2125/2016 1), relating to invalidity proceedings between Aviário Tropical and Mr Ogrodnik.

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 14 February 2017 (Case R 2125/2016-1) in so far as, in that decision, the Board of Appeal upheld the application for a declaration of invalidity in respect of ‘products and preparations for the breeding of birds, reptiles, amphibians’ in Class 31 and ‘veterinary, therapeutic, disinfecting and sanitary products and preparations for use in terraristics’ in Class 5;

2.Dismisses the appeal brought by Aviário Tropical, SA, against the decision of the Cancellation Division of EUIPO of 15 July 2013 (No 6029C) in so far as that appeal seeks the annulment of the trade mark TROPICAL in respect of ‘products and preparations for the breeding of birds, reptiles, amphibians’ in Class 31 and ‘veterinary, therapeutic, disinfecting and sanitary products and preparations for use in terraristics’ in Class 5;

3.Dismisses the action as to the remainder;

4.Orders Mr Ogrodnik to pay half of EUIPO’s costs and half of his own costs;

5.Orders EUIPO to pay half of Mr Ogrodnik’s costs and half of its own costs.

(*)

OJ C 213, 3.7.2017.