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MONDAY, 20 OCTOBER 2014
Lambretta in General Court (Part 2)
Following up on the case reported last Friday on Lambretta and "IP translator", the case T-132/12 Scooters India v OHMI was about a cancellation action for
revocation for non-use of CTM LAMBRETA
for goods in Classes 6, 7 and 28, and the interpretation on the assessment of
evidence before OHIM.
The applicant appealed to the GC because the Board of Appeal examined the
evidence submitted to it in isolation and not in conjunction with the evidence
already provided to the Cancellation Division, inter alia the statement of
Mr W., the President of the Lambretta Club of Great Britain.
In its brief to the BoA, the applicant submitted that
the documents provided had been assessed in an overly harsh way, ‘given that
the previous evidence was filed under an explanatory witness statement of [Mr
W.]’. That submission clearly showed that the applicant continued to rely,
before the BoA on the evidence previously provided and, in particular, on
Mr W.’s statement.
After examining the admissibility of the
new evidence submitted by the two parties before it, the Board of Appeal
exclusively set out and assessed that new evidence. By contrast, it did not
even mention the evidence previously submitted to the Cancellation Division.
Furthermore, the Board of Appeal did not, in general terms, adopt the
assessment made by the Cancellation Division.
Thus the General Court upheld the first
complaint put forward by the applicant and held that the Board of Appeal
infringed its obligation to carry out a global assessment which took into
account all the relevant factors of the particular case. Consequently, contrary to what OHIM and Brandconcern maintained, the
applicant was entitled to put forward before the Court that evidence, as well
as the complaint alleging that the Board of Appeal failed to take it into
account. The GC annulled the contested decision of the BoA.
Posted by: Laetitia Lagarde @ 18.22
General Court, Lambretta, revocation for non-use, assessment evidence, OHIM,
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