ORDER OF THE GENERAL COURT (Third Chamber)

24 October 2014(*)

(Community trade mark – Revocation proceedings – Three-dimensional Community mark – Shape of a toy figure – Article 60 of Regulation (EC) No 207/2009 – Inadmissibility of the appeal before the Board of Appeal – Statement of the grounds of the appeal – Action manifestly lacking any foundation in law)

In Case T‑398/14,

Best-Lock (Europe) Ltd, established in Colne (United Kingdom), represented by W. Krahl, lawyer,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being

Lego Juris A/S, established in Billund (Denmark), represented by V. von Bomhard, lawyer,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 4 April 2014 (Case R 1896/2013‑4) concerning revocation proceedings between Best-Lock (Europe) Ltd and Lego Juris A/S,

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas (Rapporteur), President, N. J. Forwood and E. Bieliūnas, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the General Court on 5 June 2014,

makes the following

Order

 Background to the dispute

1        On 23 June 2000, the intervener, Lego Juris A/S, obtained registration of a Community trade mark from the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) on the basis of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

3        The goods for which registration was obtained are in Classes 9, 25 and 28 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and since the partial surrender made during the proceedings before OHIM they correspond, for each of those classes, to the following description:

–        Class 9: ‘decorative magnets; computer games for download; recorded data and information media’;

–        Class 25: ‘Clothing, footwear, headgear’;

–        Class 28: ‘Games, toys; decorations for Christmas trees’.

4        On 7 May 2012, the applicant, Best-Lock (Europe) Ltd, filed an application for revocation of the contested mark on the basis of Article 51(1)(a) of Regulation No 207/2009. That application was directed against all the goods referred to in paragraph 3 above.

5        On 2 August 2013, the Cancellation Division revoked the contested mark for ‘decorations for Christmas trees’ in Class 28 and dismissed the application for revocation of the contested mark for the other goods referred to in paragraph 3 above.

6        On 26 September 2013 the applicant filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Cancellation Division.

7        On 7 November 2013, the applicant produced a two-page written statement in which it ‘provided further clarification of the appeal’.

8        By decision of 4 April 2014 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal as inadmissible. It found, in essence, that the written statement lodged by the applicant on 7 November 2013 was not a written statement setting out the grounds of appeal for the purposes of Article 60 of Regulation No 207/2009. According to the Board of Appeal, that written statement did not make it possible to identify the complaints in relation to which it was to examine the legality of the decision of the Cancellation Division. In particular, it stated that the arguments relating to the distinctive character of the contested mark did not relate to the object of the proceedings, as it was not based on an infringement of Article 7(1)(b) of Regulation No 207/2009. It also stated that the arguments relating to the technical formatting of the contested mark and the complaint relating to the monopolisation of the technical configurations was not linked to the object of the appeal, but concerned parallel proceedings for a declaration of invalidity. Moreover, it found that the arguments were not clear.

 Forms of order sought

9        The applicant claims that the Court should:

–        annul the decision of 4 April 2014 and revoke the contested mark for the goods in Class 28;

–        order OHIM to pay the costs.

 Law

10      As set out in Article 111 of the Rules of Procedure of the General Court, where the action is manifestly lacking any foundation in law, the Court may by reasoned order, and without taking further steps in the proceedings, give a decision on the action.

11      In the present circumstances, the Court considers that it has sufficient information from the documents before it and has decided, in accordance with that article, to give a decision on the action by reasoned order without taking further steps in the proceedings.

12      In support of its action, the applicant essentially raises a single plea in law, alleging infringement of Article 51(1)(a) of Regulation No 207/2009.

13      However, as is clear from paragraph 8 above, the Board of Appeal dismissed the appeal as inadmissible on the ground that the written statement lodged by the applicant on 7 November 2013 was not a written statement setting out the grounds of appeal for the purposes of Article 60 of Regulation No 207/2009, given that it did not make it possible to identify the complaints in relation to which it was to examine the legality of the decision of the Cancellation Division.

14      The plea raised by the applicant in its application does not seek to challenge those reasons. That plea relates to the alleged lack of genuine use of the contested mark for the goods in class 28 and the extent of the protection of that mark. The applicant advances arguments relating only to the contested mark, and that includes referring to its written submissions in parallel proceedings. However, it does not advance any argument seeking to demonstrate that the Board of Appeal was wrong to dismiss the appeal as inadmissible by finding that its written statement of 7 November 2013 could not be regarded as a written statement setting out the grounds of appeal. Moreover, that written statement is not even cited in the application.

15      In those circumstances, that plea is ineffective and must be dismissed.

16      It follows from the foregoing that the action must be dismissed as manifestly lacking any foundation in law.

 Costs

17      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Best-Lock (Europe) Ltd to pay the costs.

Luxembourg, 24 October 2014.

E.  Coulon

      S. Papasavvas

Registrar

      President