Action brought on 5 February 2021 — Masterbuilders, Heiermann, Schmidtmann v EUIPO — Cirillo (POMODORO)

(Case T-76/21)

(2021/C 110/38)

Language of the case: English

Parties

Applicant: Masterbuilders, Heiermann, Schmidtmann GbR (Tübingen, Germany) (represented by: H. Hillers, lawyer)

Defendant: European Union Intellectual Property Office (EUIPO)

Other party to the proceedings before the Board of Appeal: Francesco Cirillo (Berlin, Germany)

Details of the proceedings before EUIPO

Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

Trade mark at issue: European Union word mark POMODORO — European Union trade mark No 10 926 152

Procedure before EUIPO: Cancellation proceedings

Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 30 November 2020 in Case R 715/2020-5

Form of order sought

The applicant claims that the Court should:

—	annul the contested decision;

—	reject the European Union trade mark (EUTM) proprietor’s appeal of 17 April 2020 in its entirety;

—	order EUIPO to pay the costs.

Pleas in law

In support of its action, the applicant relies on three pleas in law:

—	First plea in law, alleging that the defendant was not allowed to take into account the EUTM proprietor’s statement of grounds and evidence for his appeal because the EUTM proprietor did not file his statement of grounds within the non-extendable time-limit of four months;

—	Second plea in law, alleging that the new evidence is inadmissible according to Article 27(4) of the Commission Delegated Regulation (EU) 2017/1430;

—	Third plea in law, alleging that the statement of grounds and the new evidence did not establish proof of genuine use.