C-263/09

Edwin Co. Ltd v OHIM and Elio Fiorucci

Background

This is the appeal against the judgment in the CFI case T165/06 External Link.

Case before ECJ

The appellant (Edwin Co. Ltd.) asks for the judgment of the CFI to be set aside, claiming:

  • That Article 52(2) of the Community Trade Mark Regulations can only apply if the applicant for invalidity is the is the owner, under national law, of an exclusive right to the use of the name in question.
  • That under Article 8(3) of the Italian Industrial Property Code (relied on by the other party) Mr Fiorucci, although he has the provisional right to register the mark “Elio Fiorucci”, he could not make use of this right because of the conflict with the appellant’s mark “Fiorucci”.
  • That Article 8(3) should only apply to people who have become well known outside the commercial field.
  • The judgment is unlawful because the CFI failed to examine the evidence supporting Edwin’s submission that it had obtained permission to use the patronymic as a trade mark.
  • Or, if the ECJ finds that neither it nor the CFI has jurisdiction to examine the argument in question, it must refer it back to the Board of Appeal.
  • The judgment is unlawful in that it infringes Article 63 of the Community Trade Mark Regulations in that it denies natural justice since the CFI refused to consider Edwin’s argument that the defendant had, de facto, assigned the rights in the patronymic to the appellant.
  • Or, if the ECJ finds that neither it nor the CFI has jurisdiction to examine the argument in question, it must refer it back to the Board of Appeal.

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