«(Community trade mark – Invalidity proceedings – Article 52(1)(a) of Regulation (EC) No 40/94 – Earlier figurative and word marks containing the word GIORGI – Application for Community word mark GIORGIO AIRE – Relative ground for refusal – Article 8(1)(b) of Regulation No 40/94 – Proof of use – Article 56(2) and (3) of Regulation No 40/94)»

1.. Community trade mark – Surrender, revocation and invalidation – Consideration of the application – Proof of use of the earlier mark – Genuine use – Meaning (Council Regulation No 40/94, Art. 56(2))

2.. Community trade mark – Surrender, revocation and invalidation – Consideration of the application – Proof of use of the earlier mark – Genuine use – Criteria for assessment – Particular circumstances of owners – Not relevant (Council Regulation No 40/94, Art. 56(2); Commission Regulation No 2868/95, Art. 1, Rules 22(2) and 40(5))

3.. Community trade mark – Surrender, revocation and invalidation – Causes of relative invalidity – Existence of an earlier identical or similar mark registered for identical or similar products or services – Risk of confusion with the earlier mark – Word mark GIORGIO AIRE and figurative marks including the word GIORGI (Council Regulation No 40/94, Arts 8(1)(b) and 52(1)(a))

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) 9 July 2003 (1)

((Community trade mark – Invalidity proceedings – Article 52(1)(a) of Regulation (EC) No 40/94 – Earlier figurative and word marks containing the word GIORGI – Application for Community word mark GIORGIO AIRE – Relative ground for refusal – Article 8(1)(b) of Regulation No 40/94 – Proof of use – Article 56(2) and (3) of Regulation No 40/94))

In Case T-156/01,

applicant,

v

defendant, the other party to the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) being

ACTION brought against the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 11 April 2001 (Case R 258/2000-1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: V. Tiili, President, P. Mengozzi, and M. Vilaras, Judges,

Registrar: B. Pastor, Deputy Registrar,

having regard to the written procedure and further to the hearing on 22 January 2003,

gives the following

3. Paragraph 2 shall apply to earlier national trade marks referred to in Article 8(2)(a), by substituting use in the Member State in which the earlier national trade mark is protected for use in the Community.

First plea in law: infringement of Article 56(2) and (3) of Regulation No 40/94

Arguments of the parties

Findings of the Court

Second plea in law: infringement of Article 52(1)(a) of Regulation No 40/94

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber),

hereby:

Tiili

Mengozzi

Vilaras

Delivered in open court in Luxembourg on 9 July 2003.

H. Jung

V. Tiili

Registrar

President