[Editor's note] Like most countries and regions in the world, The rulings of the Court of Justice of the European Union have important guiding significance and predictive value for understanding the legal norms of the European Union. Esabaril (ELZABURU) At the beginning of each year, typical cases of the Court of Justice of the European Union in the previous year are summarized and published, And a brief review of each case, In order to help customers and partners to understand the EU intellectual property norms. Given the importance of Chinese customers and partners, We try to publish the Chinese version of typical cases on a weekly basis, It is convenient for Chinese partners to learn the latest information in a timely manner.
　　 [background]
　　The European Union's Intellectual Property Office has approved a three-dimensional trademark for Nestle "KIT KAT" Application for registration, Specify use in the No 30 commodity, The logo is shown below:
　　Cadbury company (Later renamed Mondelez company) The above trademarks lack significant distinction, Request that the trademark be declared invalid. The Invalidation Division of the European Intellectual Property Office ruled that the trademark was invalid, But an appeals panel later overturned the ruling, Although the disputed trademark itself does not have significant distinction, However, the evidence presented proved that the trademark gained a significant distinction in the field of the European Union through actual use. specifically, The Appeal Board found that the evidence submitted by the trademark owner proved that the disputed mark was already in Denmark, Germany, Spain, France, Italy, Holland, Austria, Finland, Ten member states, including Sweden and the United Kingdom, achieved significant differentiation, These countries accounted for the population of the European Union at the time 90%. however, The appellate panel did not say whether the same distinction had been made in EU member states other than those listed above.
　　Eu general court (General Court) postadjudication, The Appeal Board was correct in finding that the contested marks were significantly distinguishable in the ten Member States, However, it was not possible to assess whether the mark was equally distinguishable in other EU member states, Exist error. Therefore, The General Court overruled the appeal board.
　　Neither party to the dispute will accept the above judgment of the General Court, Appeal separately. Modelez The company asked the court to overturn the General Court's judgment that the contested mark had achieved significant distinction in the ten EU member States. Nestle and the European Intellectual Property Office are seeking to overturn the General court's decision in its entirety.
　　 [conclusion]
　　European Court of Justice (Court of Justice) identification, Only the party whose claim was dismissed may appeal (In this case, The general courts have complied Mondelez Company request, Reversed the decision of the appeal board) , And only on the enforcement portion of the dismissed claim, Not on the grounds of judgment. Therefore, Court order Mondelez The company's appeal has no merit, Should be rejected.
　　The European Court of Justice also held that, Res judicata is limited to those parts of the execution of the judgment that the reasons for the judgment can support, Therefore, The two are inseparable. In this case, Because the General Court overruled the appeal board, Therefore, the grounds on which the Appeal Board made its decision have not entered into force, mean, The appeal Board dismissed the plaintiff accordingly (Mondelez company) The reasons for the determination requested can be appealed.
　　In addition, The European Court of Justice rejected an appeal by Nestle and the European Union's Intellectual Property Office, Found that the Appellate Committee had failed to assess any member State of the European Union other than the State in which the disputed mark was situated (Belgium, Ireland, Greece and Portugal) Whether significant differences are also achieved, Therefore, it can not be concluded that the disputed trademark has achieved significant differentiation in all areas of the EU.
　　Nestle and the European Union Intellectual Property Office cited Chocoladefabriken Lindt case (Case number: C-98/11P) 2012 years 5 month 24 Judgment of day. In the judgment, European court of justice ruling, Require evidence to prove that the trademark in question has been significantly differentiated in each Member State of the European Union, It's not reasonable. however, Contrary to the claims of Nestle and the EU Intellectual Property Office, The European Court of Justice held that the above judgment could not be construed as, Proving that the disputed trademark has achieved significant distinction in most areas of the EU is sufficient to prove that it has achieved significant distinction in the whole area of the EU. Based on this, The European Court of Justice found that the judgment should be read as, Under certain circumstances, If a piece of evidence can prove that the disputed mark has achieved significant differentiation in several member states, It is no longer necessary to provide evidence that the mark has been significantly distinguished in each of the said Member States. For example, The trademark owner lumps several member countries into the same distribution network, And treat it as a single market. In this case, Evidence relating to the market is relevant to several member States at the same time.
　　Finally, European court of justice ruling, Lack of distinctively differentiated marks in all areas of the EU, Must prove its use in all areas of the EU ( "Not a major part of the European Union, Not most of them" ) Significant difference was obtained. "Therefore, Whether it's all the member states as a whole, Or for each member state or divided into regions to provide separate certification, If the evidence does not cover all EU member states, Even if only one member country is missing, It's not based on that evidence, In all areas of the European Union, the disputed trademarks have obtained significantly differentiated conclusions. "
　　 [comment]
　　From a procedural point of view, The judgment of the European Court of Justice reaffirms an established principle, That is, the losing party may appeal, But the appeal was limited to the execution of the dismissed claim and not the reason for its decision. The effect of this principle is, Only on the grounds of the judgment, Should be rejected.
　　Other cases where the European Court of Justice has confirmed the rejection of an appeal include, The appellant was not a genuine interested party in the disputed judgment, And it must not be unknown, Future assumptions prove to be at stake.
　　On the question of no appeal against the grounds of judgment, There is a clear conclusion within the court system, But there seems to be a lack of clarity within the EU Intellectual Property Office, In the past, the EU Intellectual Property Office allowed appeals only against the grounds of the dissenting and invalidated rulings. "Eu trade mark regulation" The first 68. 2 Article provision, cross-appeal (cross-appeal) In case, Allow an appeal against the grounds of the decision, But the merits of this ground of appeal are disputed, Because if it is stipulated that the party whose claim has been granted cannot appeal, Then there is no reason why in the case of cross-appeal, It also requested the Appeal Board to review the grounds of decision of the party that had supported its claim. Cross-appeal at the same time as the other party's appeal can require review of the content that cannot be challenged when the party directly appeals, Seems unreasonable.
　　In addition, One thing you have to think about, From the point of view of execution, If the winning party's appeal to amend the grounds of judgment is denied, What steps he could take to challenge the verdict? It seems unlikely that the court will accept this challenge.
　　About the main body of the judgment, The European Court of Justice decision resolves the question of the geographical scope that proves the attainment of significant differentiation in EU-wide areas. There is a lot of controversy about this issue, especially 2012 years 5 month 2 After the verdict was announced, The judgment ruled that there was no need to provide evidence of a marked distinction in each member State of the European Union. In fact, The judgment was upheld "extrapolation (extrapolation) " Mechanism theory, The EU Intellectual Property Office is in 2017 years 10 month 1 The mechanism is defined in guidelines published on Tuesday, That is, for member States not covered by the evidence submitted, Presumption has achieved significant differentiation in its field. But the European Court of Justice made it clear in its ruling, The evidence submitted must prove that the contested mark is in all areas of the EU, But not in most areas, All of them are significantly different from each other——Even if evidence is presented on a global scale that covers several member countries, As long as the evidence does not cover all areas of the EU, Even if the uncovered part has only one member state, Still, it is not possible to identify the disputed trademark as a significant distinction in all EU fields.
　　The European Court of Justice has set a high threshold for proof, Three-dimensional trademark, Color trademarks and other trademarks that lack any significant distinction in themselves, It will be complicated and laborious to prove that it can be used to make a significant difference within the EU.
　　It's worth considering, Whether high standards for the geographical coverage of evidence are offset by low quality requirements for the evidence presented. For that matter, It is necessary to study Nestle and Mondelez A final judgment in a dispute between companies, Because the ruling will ultimately resolve whether all areas of the European Union, include, Member states not mentioned by the Appeals Committee in its decision, And member states that have submitted evidence but are weak, Significant difference was obtained.
　　compile: Liu Dan, Esabarry Legal Counsel
　　source: Esabaril (ELZABURU) Intellectual property rights