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Case C-206/15 P - Sun Mark Ltd and Bulldog Energy Drink Ltd the other party/parties to the proceedings being Red Bull GmbH (synopsis)

At the end of November the Court of Justice handed down a decision that finally dealt with the question of whether a party who was not involved in the proceedings before the General Court – but...

...had a direct interest in those proceedings as the applicant for the CTM ‘BULLDOG’ – could appeal a ruling of the General Court setting aside an OHIM BoA decision to the Court of Justice, under Article 56 of the Statute of the Court of Justice, albeit that provision must be read in conjunction with Article 134 of Title IV to the Rules of Procedure.

The Appellants’ case before the CJ rested on the fact that wording of those Articles is “passive and / or permissive …. rather than being framed as mandatory terms; such as “shall”, “must” or “unless””. If they were debarring provisions they would say so – and they do not.

However, the CJ did not accept that line of argument and held that the Appellants were not intervenors before the General Court because they:

“…did not propose their own forms of order before the General Court and failed to indicate whether they supported those of one or other of the parties. In that connection, the fact that they did not respond to the originating application cannot be interpreted as meaning that they supported OHIM's forms of order before the General Court.” (at para 33)

And as such there was no right to bring an appeal before the Court of Justice.

The message from this decision is clear – trade mark applicants cannot leave OHIM to fight their corner in in the GC (in order to avoid costs) and then expect to be allowed to appeal to the CJ. At the very least a party would need to suggest a form of order or indicate its support for OHIM’s position to have any hope of being an “intervenor” for the purposes of Article 134 of the Rules of Procedure and hence have the right to appeal to the CJ.

For a fuller analysis of the case click here.

Dr Tim Sampson / 18th Dec 2015


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