- Alert: Court of Justice dismisses appeal, clarifies scope of IP Translator (EUIPO v Cactus)
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IP analysis: The Court of Justice has followed the opinion of the Advocate General and dismissed an appeal by the EUIPO against a decision by the General Court in an opposition case concerning the figurative sign CACTUS OF PEACE CACTUS DE LA PAZ. The Court of Justice’s decision clarifies the scope of its earlier decisions in IP Translator (Case C-307/10) and Praktiker Bau (Case C-418/02). The opposition was based on earlier trade marks, pursuant to Article 8(1)(b) of Council Regulation (EC) 207/2009 (EUTMR). The General Court had annulled a decision of the EUIPO annulling the decision of the Opposition Division to the extent that it had found that genuine use of earlier trade marks had been established. The EUIPO’s first ground of appeal was that the General Court’s judgment breached Article 28 EUTMR, read in conjunction with Rule 2 of Regulation (EC) 2868/95, because it equated the coverage of the class heading in class 35 with all the services belonging to that class. The EUIPO’s second ground of appeal was that the judgment breached Articles 42(2) and 15(1) EUTMR, because the General Court found that the use of the figurative element, namely a logo depicting a stylised cactus, without the word element, did not alter the distinctive character of the figurative trade mark as registered. The Court of Justice held that the General Court had not committed an error in holding that the designation of the class heading of class 35 covered all services included in that class, including services consisting of the retail of goods. It also confirmed that the General Court had not erred in holding that the use of the stylised cactus alone without the element ‘cactus’ did not alter the distinctive character of the earlier figurative trade mark. Accordingly, the appeal was dismissed.
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