7.9.2013

EN

Official Journal of the European Union

C 260/39

Appeal brought on 19 July 2013 by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) against the judgment of the General Court (First Chamber) delivered on 14 May 2013 in Case T-249/11 Sanco v OHIM — Marsalman (representation of a chicken)

(Case C-411/13 P)

2013/C 260/70

Language of the case: Spanish

Parties

Appellant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo and A. Folliard-Monguiral, acting as Agents)

Other party to the proceedings: Sanco, SA

Form of order sought

The appellant claims that the Court should:

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set aside the judgment under appeal;

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deliver a fresh judgment on the substance of the case, dismissing the action brought against the contested decision, or refer the case back to the General Court;

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order the applicant in the proceedings before the General Court to pay the costs.

Pleas in law and main arguments

1.The General Court infringed Article 8(1)(b) CTMR ( 1 ) since it took as its basis an incorrect interpretation of the scope of the services covered by the trade mark applied for in Classes 35 and 39 of the Nice Classification. The analysis of the similarity of the goods and services is incorrect because the General Court did not take into account that the activities which an operator offers for its own account in relation to its own goods are not included among the services covered by the trade mark applied for. The question whether such services, within the meaning of the Nice Classification, have to be supplied on behalf of third parties is a question of law which must be clarified by the Court of Justice.

2.The General Court infringed Article 8(1)(b) CTMR since it examined the complementarity of goods and services by reference to the importance of a product or a service ‘for the purchase’ of another product or service from the point of view of the relevant public. The General Court failed to consider whether the complementarity of the goods and services is based on an interaction which is such that their use in conjunction with one another is, in strictly objective terms, necessary or desirable.

3.The General Court infringed Article 8(1)(b) CTMR in concluding that certain complementary goods and services are automatically similar, despite the low degree of similarity in question, without ascertaining whether the differences arising from other factors were such as to neutralise that complementarity.

( 1 ) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) ( OJ 2009 L 78, p. 1 ).