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Industria De Diseno Textil filed a case against the decision of the Fifth Board of Appeal of EUIPO of 2nd February 2018 related to the case between Ffauf Italia and Inditex.
On March 5th 2010, the applicant Industria de Diseno Textil, SA(Inditex), submitted an application for registration of the European Trademark “ZARA” at the European Union Intellectual Property Office, under Regulation (EC). Zara, Bershka and Massimo Dutti are the brands of Inditex. They sought for registration of preserved foods and restaurants which are included in class 29 to 32, 35 and 43 within the meaning of the NICE Agreement.
On 22nd September 2010, Ffauf filed an opposition under Article 41 of Regulation 207/2009. On 19 December 2014, the opposition division partially upheld the opposition. On 9th and 16th, February 2015, the applicant and the intervener filed an appeal with the EUIPO under Articles 58 to 64 of Regulation no 207/2009 against the decision of the opposition division. The Board of Appeal rejected the opposition. The applicant claims that the Fifth Board of Appeal should cancel the contested decision and the intervener should pay the costs. Article 8 (1) (b), 47 (2), 47 (3), of Regulation 2017/1001 are applied in this case. The matter of the likelihood of confusion is analyzed. It is a trademark dispute.
According to Article 47 (2), it has to be proved by the proprietor of an earlier mark of a European Union has been subject to genuine use in the Union for the services before the filing date of the application. The Court hence dismissed the opposition as they failed to prove their claim. The Court observed that the Board of Appeal has failed to understand the genuine use of the Italian figurative mark ZARA and word mark LE DELZIE ZARA.
The Court also held that inadequacy of statement of reasons is a breach of essential procedural requirement. The opposition division in the case held that the word “PASTA” of the mark did not alter the distinctive character. The Court held that regarding the word PASTA, there is no “PASTA” word in the figurative mark of Ffauf.
On May 8, 2019, in open court in Luxembourg, the European Union's General court found that EUIPO had failed to adequately explain its reasoning in rejecting the mark and the decision of the Fifth Board of Appeal of the EUIPO is set aside. The Court also awarded costs to Inditex.