Judgment – 19/03/2026 – Mordalski v EUIPO – Anita Food, Case T‑251/25

– The case concerned an action under Article 263 TFEU seeking annulment of the decision of the Fourth Board of Appeal of EUIPO of 5 February 2025 (R 1567/2024‑4), which had confirmed the inadmissibility of an application for a declaration of invalidity.

– Grzegorz Mordalski, the applicant, filed the following figurative trade mark in the Polish Patent Office on 21 January 2016:

– The Polish Patent Office refused to register the trade mark as there was a likelihood of confusion with respect to an earlier EU figurative trademark, registered on 27 January 2010 by Anita Food SA, presented below:

– On 1 November 2020, the applicant filed an application for a declaration of invalidity of the expired mark, based on Article 60(1)(a) of Regulation 2017/1001 in conjunction with Article 8(1)(a) and (b).

– The Cancellation Division rejected the application as inadmissible on the ground that, at the date of filing, the registration of the contested mark had already expired.

– The Board of Appeal dismissed the appeal. It held that invalidity proceedings may only concern an EU trade mark that still exists as a registered mark and cannot be brought in respect of a mark whose registration had expired before the application was filed.

– The General Court found that, under Article 1(1) and Article 52(1)(a) of Regulation No 40/94, an EU trade mark is defined as a registered mark. The Court underscored that the legal framework does not allow invalidity proceedings against a mark whose registration has already lapsed.

– Article 17(5) of Delegated Regulation 2018/625, permitting invalidation of a mark that expires after the invalidity request has been filed, was held to be inapplicable because expiry in this case occurred prior to the request.

– The Court rejected arguments based on the distinction between the effects of expiry and invalidity, and confirmed that the wording of the Regulation precluded invalidity of a mark that no longer existed on the register at the time of the request.

– Comparisons with Article 24(2) of Regulation No 6/2002 on Community designs were dismissed. The Court found that the absence of a corresponding rule in EU trade mark law confirms that no such possibility exists for trade marks.

– Arguments derived from Recital 3 of Directive 2015/2436 and from Article 7 TFEU were also rejected. The provisions at issue could not override the express terms of the applicable Regulation.

– The Court therefore dismissed the action.

Case details (in Polish): https://infocuria.curia.europa.eu/tabs/document/T/2025/T-0251-25-00000000PI-01-P-01/ORD_NP/318010-PL-1-html

Judgment – 18.03.2026 – Debonair Trading v EUIPO – Loewe, Case T‑77/25

– The case concerned opposition proceedings relating to the EU word mark application AOURA, filed for a wide range of perfumery and cosmetic goods in Class 3. The opposition was brought by Loewe SA on the basis of the earlier EU word mark AURA LOEWE, also registered for perfumery and cosmetics. Following a request by the applicant, EUIPO required the opponent to prove genuine use of the earlier mark within the meaning of Article 47(2) of Regulation 2017/1001.

– The Opposition Division held that genuine use had been demonstrated for perfumery goods in Class 3 and upheld the opposition for all contested goods. The applicant appealed, challenging both the assessment of genuine use and the finding of a likelihood of confusion.

– By decision of 27 November 2024, the Board of Appeal dismissed the appeal. It considered that the evidence, taken as a whole, proved genuine use of the earlier mark in both its registered form and in slightly altered forms which did not affect its distinctive character. It further held that, for at least part of the public, there existed a likelihood of confusion under Article 8(1)(b) of Regulation 2017/1001. The applicant brought an action for annulment before the General Court.

– The Court rejected the applicant’s general reference to the arguments presented before EUIPO, noting that the application did not identify any specific passages to which such references related.

– The Court held that the Board of Appeal had correctly found that the versions of the mark used in trade, including those where “AURA” appeared in smaller script beneath “LOEWE”, did not alter the distinctive character of the registered mark. The Court found that even though the evidence was sometimes undated or of poor quality, it could be considered in conjunction with dated material evidence to commercial exploitation. The Court therefore upheld the Board of Appeal’s finding of genuine use.

– The Court also endorsed the Board of Appeal’s definition of the relevant public (Spanish- and Italian-speaking consumers, for whom the element “LOEWE” has no meaning. The Court also confirmed that the goods at issue were identical or similar.

– Turning to the comparison of the signs, the Court held that neither “AURA” nor “LOEWE” dominated the overall impression of the earlier mark and that both elements were distinctive. The term “aura” was not descriptive of perfumery goods for the relevant public, conveying rather a figurative or metaphorical sense, and “loewe” was a meaningless term for those consumers. The same applied to “aoura”, which differed from “aura” only in the addition of the letter “o”, a difference that was considered not sufficient to eliminate similarity.

– The Court upheld the Board of Appeal’s conclusions that the signs were visually similar to a below‑average degree due to the near‑identity of “aura” and “aoura”, phonetically similar to an average degree, and conceptually similar to an average degree for a non‑negligible part of the public. It confirmed that the global assessment supported a likelihood of confusion.

– The General Court therefore dismissed the action in its entirety.

Case details: https://infocuria.curia.europa.eu/tabs/document/T/2025/T-0077-25-00000000PI-01-P-01/ARRET_NP/317829-EN-1-html

Judgment – 19.03.2026 – Institutul de Istorie și Teorie Literară „G. Călinescu” and Fundația Națională pentru Știință și Artă v HK and Others, Case C‑649/23

– The request for a preliminary ruling concerned the interpretation of Article 2(a) of Directive 2001/29 and the autonomous EU‑law concept of a “work” in the context of copyright protection for a critical edition of a literary text in the public domain. The proceedings arose from litigation in Romania concerning the edited Latin work of Dimitrie Cantemir, as prepared by Professor Dan Slușanschi.

– The Slușanschi critical edition, first published in 2001 and republished several times thereafter, was based on Cantemir’s Latin manuscript held at Harvard University. It included corrections, additions, and restored textual passages, intended to reconstruct as faithfully as possible the author’s intended text. After Professor Slușanschi’s death, his heirs authorised the Călinescu Institute to use his transcripts and translations for a collected works project. Later on, the NFSA published a bilingual Latin-Romanian edition incorporating the 2001 Slușanschi edition, including unpublished corrections, while referring to Slușanschi only in footnotes.

– Romanian courts at first instance and on appeal held that the Slușanschi edition constituted a derivative work protected by copyright under national law and that it had been reproduced without proper attribution or authorisation. The defendants appealed to the High Court of Cassation and Justice, arguing that a critical edition of a historical scientific text, constrained by strict grammatical, stylistic and philological norms, lacks the creative freedom necessary for copyright protection. They contended that the editor merely identifies the most faithful textual variant and does not exercise personal creative choice.

– The referring court asked whether, under Article 2(a) of Directive 2001/29, a critical edition of a text in the public domain, whose purpose is to restore the original manuscript through additions, corrections, commentary and critical apparatus, may itself be regarded as a protected “work”.

– The Court recalled that the autonomous EU‑law notion of “work” requires two cumulative conditions, specifically, the existence of original subject matter reflecting the author’s own intellectual creation, expressed through free and creative choices, and the existence of a subject matter identifiable with sufficient precision and objectivity. It underscored that originality may arise from the structure, selection, arrangement and expression of material, and not merely from novel wording. By contrast, where the form of expression is dictated solely by technical or objective constraints, originality is excluded.

– In assessing the Slușanschi critical edition, the Court observed that the edition was not a mere transcription of the manuscript. Its corrections, additions, replacements of words, restored passages and critical notes required scholarly judgment, interpretation and selection. The accompanying commentary and apparatus themselves reflected intellectual creation.

– The Court held that a critical edition may constitute identifiable subject matter as a whole, without requiring a separation between the textual reconstruction and the commentary, since segmenting the edition would undermine its integrity. What matters is that the edition, considered in its complete form, can be identified objectively.

– The Court further clarified that, should the critical edition meet the conditions for classification as a work, it benefits from full copyright protection under Directive 2001/29. Protection is not reduced by the degree of creative freedom exercised. It also does not revert the underlying public‑domain work into private ownership. The editor acquires rights only in the new elements of expression.

– The Court therefore ruled that Article 2(a) of Directive 2001/29 must be interpreted as meaning that a critical edition of a work in the public domain, produced through restoration of the manuscript, including commentary and critical apparatus, may constitute a protected work, provided it is an intellectual creation reflecting the editor’s personality through free and creative choices and is identifiable with sufficient precision and objectivity.

Case details: https://infocuria.curia.europa.eu/tabs/document/C/2023/C-0649-23-00000000RP-01-P-01/ARRET/317909-EN-1-html