Corte di giustizia UE n. 1276/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 14 May 2013 ( * ) (Appeals – Community trade mark – Figurative mark containing the word element ‘BEATLE’ – [OSCURATO:PERSONA] by the proprietor of the Community and national word and figurative marks containing the word elements ‘[OSCURATO:PERSONA]’ and ‘[OSCURATO:PERSONA]’ – Refusal of registration by the [OSCURATO:PERSONA] of Appeal – [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] (EC) No 40/94) [OSCURATO:PERSONA] C‑294/12 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 8 June 2012, You‑Q BV, established in Helmond (Netherlands), represented by G.S.C.M. van Roeyen, advocaat, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM), represented by D. Botis and I. Harrington, acting as Agents, defendant at first instance, [OSCURATO:PERSONA], established in London ([OSCURATO:PERSONA]), represented by A. Terry, Solicitor, and F. Clark, Barrister, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of G. Arestis, President of the [OSCURATO:PERSONA], A. Arabadjiev and J.L. da [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: J. Kokott, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By its appeal, the company You‑Q BV (formerly Movingpeople.net [OSCURATO:PERSONA] BV, then [OSCURATO:PERSONA] BV; ‘You‑Q’) seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 29 March 2012 in [OSCURATO:PERSONA] T‑369/10 You‑Q v OHIM – [OSCURATO:PERSONA] (BEATLE) (‘the judgment under appeal’), by which that [OSCURATO:PERSONA] dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM) of 31 May 2010 ([OSCURATO:PERSONA] R 1276/2009‑2), given in opposition proceedings between [OSCURATO:PERSONA] and Movingpeople.net [OSCURATO:PERSONA] BV (‘the contested decision’). Legal context 2 [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed and replaced by [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. Nevertheless, given that the relevant date in the present case is that on which the application for registration was filed (see, to that effect, [OSCURATO:PERSONA]88/11 P LG Electronics v OHIM [2011] ECR I‑0000, paragraph 2), the present case is still governed by [OSCURATO:PERSONA] 40/94, in any event as regards provisions which are not strictly procedural. 3 [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 40/94 provides: ‘1.      Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered: (a)       if it is identical with the earlier trade mark and the goods or services for which registration is applied for are identical with the goods or services for which the earlier trade mark is protected; (b)       if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark. 2.      For the purposes of paragraph 1, ‘Earlier trade marks’ means: (a)       trade marks of the following kinds with a date of application for registration which is earlier than the date of application for registration of the Community trade mark, taking account, where appropriate, of the priorities claimed in respect of those trade marks: (i)      Community trade marks; (ii)  trade marks registered in a [OSCURATO:PERSONA], or, in the case of Belgium, the Netherlands or Luxembourg, at the [OSCURATO:PERSONA]; (iii) trade marks registered under international arrangements which have effect in a [OSCURATO:PERSONA]; (b)      applications for the trade marks referred to in subparagraph (a), subject to their registration; (c)      trade marks which, on the date of application for registration of the Community trade mark, or, where appropriate, of the priority claimed in respect of the application for registration of the Community trade mark, are well known in a [OSCURATO:PERSONA], in the sense in which the words ‘well known’ are used in [OSCURATO:PERSONA] 6 bis of the [OSCURATO:PERSONA]. … 4.      Upon opposition by the proprietor of a non-registered trade mark or of another sign used in the course of trade of more than mere local significance, the trade mark applied for shall not be registered where and to the extent that, pursuant to the law of the [OSCURATO:PERSONA] governing that sign, (a)      rights to that sign were acquired prior to the date of application for registration of the Community trade mark, or the date of the priority claimed for the application for registration of the Community trade mark; (b)      that sign confers on its proprietor the right to prohibit the use of a subsequent trade mark. 5.      Furthermore, upon opposition by the proprietor of an earlier trade mark within the meaning of paragraph 2, the trade mark applied for shall not be registered where it is identical with or similar to the earlier trade mark and is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered, where in the case of an earlier Community trade mark the trade mark has a reputation in the Community and, in the case of an earlier national trade mark, the trade mark has a reputation in the [OSCURATO:PERSONA] concerned and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.’ Background to the dispute 4 On 27 January 2004, Movingpeople.net [OSCURATO:PERSONA] BV sought registration as a Community trade at OHIM of the sign: 5 The goods in respect of which registration was applied for are the following: ‘vehicles; apparatus for locomotion by land, air or water, in particular scooters, bicycles, motorcycles and wheelchairs, specially made for sick and disabled persons and other persons requiring assistance; parts and fittings for all the aforesaid goods, included in this class, in particular belts, harnesses, chairs and supports (cushions), safety systems for wheelchair occupants and systems for locking wheelchairs, including control apparatus’ in Class 12 of the [OSCURATO:PERSONA] the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended. 6 On 6 May 2005, [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’) filed a notice of opposition against that application for registration under [OSCURATO:PERSONA] 8(1)(b), 8(4) and 8(5) of [OSCURATO:PERSONA] 40/94. 7 The opposition was based on various earlier rights, protecting the goods and services referred to in paragraph 11 of the judgment under appeal, and included a number of Community and national registrations, a well-known earlier mark and an earlier mark used in the course of trade, relating to the signs: [OSCURATO:PERSONA] 8 The opposition was directed against all the goods and services covered by the mark applied for which, in the course of the proceedings, were restricted to the following list: ‘Wheelchairs electric, wheelchairs not-electric, wheelchairs hand-operated, specially made for disabled and or persons requiring assistance; scooters, scootermobiles, minicruisers, specially made for sick and disabled persons and other persons requiring assistance; parts and fittings for all the aforesaid goods, included in this class, in particular belts, harnesses, chairs and supports (cushions), safety systems for wheelchair occupants and systems for locking wheelchairs, including control apparatus; all the aforesaid goods specially made for disabled persons and other persons requiring assistance not included in other classes’. 9 By decision of 25 August 2009, the [OSCURATO:PERSONA] rejected the opposition in its entirety, finding that [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 40/94 was not applicable on the grounds that, first, the goods were clearly dissimilar, secondly, [OSCURATO:PERSONA] had failed to identify the earlier national law allegedly enabling it, pursuant to [OSCURATO:PERSONA] 8(4) of that regulation, to prohibit the use of the mark applied for, and, in any event, that provision did not apply given the difference between the goods concerned and, thirdly, the use of the sign was not likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade marks within the meaning of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. 10 On 26 October 2009, [OSCURATO:PERSONA] filed a notice of appeal with OHIM against that decision. 11 By the contested decision, the [OSCURATO:PERSONA] of Appeal of OHIM (‘the [OSCURATO:PERSONA] of Appeal’) upheld [OSCURATO:PERSONA]’ appeal. Basing its decision exclusively on [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94, it found that the mark applied for could take unfair advantage of the repute of [OSCURATO:PERSONA]’ well-known marks. The proceedings before the [OSCURATO:PERSONA] and the judgment under appeal 12 By application lodged at the Registry of the [OSCURATO:PERSONA] on 2 September 2010, the appellant brought an action for annulment of the contested decision. In support of that action, it relied on two pleas in law. The first alleged infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 40/94 and the second alleged infringement of [OSCURATO:PERSONA] 8(5) of that regulation. 13 [OSCURATO:PERSONA], by the judgment under appeal, dismissed the action as unfounded and ordered the appellant to pay the costs. 14 As regards the second plea, the [OSCURATO:PERSONA] reviewed the conditions for the application of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. 15 First of all, the [OSCURATO:PERSONA] stated, in paragraph 26 of the judgment under appeal, that although the primary function of a mark is that of an indication of origin, the mark also has an inherent economic value which is independent of and separate from that of the goods and services for which it is registered. [OSCURATO:PERSONA], [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 ensures that a mark with a reputation is protected with regard to any application for an identical or similar mark which might adversely affect its image, even if the goods covered by the mark applied for are not similar to those for which the earlier mark has been registered ([OSCURATO:PERSONA] T‑215/03 Sigla v OHIM – [OSCURATO:PERSONA] (VIPS) [2007] [OSCURATO:PERSONA]-711, paragraph 35). 16 As regards the reputation of marks, the [OSCURATO:PERSONA] added, in paragraph 27 of the judgment under appeal, that, in order to satisfy that condition, the earlier mark had to be known by a significant part of the public concerned by the goods covered by that mark ([OSCURATO:PERSONA] C‑375/97 [OSCURATO:PERSONA] [1999] ECR I‑5421, paragraph 31) and, in paragraph 28 of that judgment, that, in order to assess whether such a condition had been satisfied, it was necessary to take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it ( [OSCURATO:PERSONA] , paragraph 27). 17 In paragraph 35 of the judgment under appeal, the [OSCURATO:PERSONA] also stated that the existence of reputation had to be assessed not, as You‑Q claimed, by reference to the public concerned by the mark applied for, namely a specialist public, but by reference to the public concerned by the earlier marks, namely the public at large, even if, in the circumstances of this case, those two sections of the public overlap, since the public at large also encompasses the specialist public. It added, however, that the public concerned by the mark applied for is taken into consideration in the context of the examination of whether any unfair advantage has been taken of the distinctive character or reputation of the earlier marks. 18 [OSCURATO:PERSONA] held, in paragraph 39 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal was entitled to find that the earlier marks have a very substantial reputation. 19 Secondly, as regards the similarity of the signs at issue, that [OSCURATO:PERSONA] held, in paragraphs 41 to 45 of the judgment under appeal, that they are highly similar visually, phonetically and conceptually. 20 As regards the existence of a link between the signs at issue, the [OSCURATO:PERSONA] took into consideration, in the first place, the similarity between those signs (judgment under appeal, paragraph 49) and, in the second place, held that the goods in respect of which those signs are registered are not similar but that there is an overlap between the sections of the public concerned, in so far as persons who use the appellant’s products are part of the public at large (judgment under appeal, paragraphs 50 to 53). In the third place, that [OSCURATO:PERSONA] held that the earlier marks have an enormous reputation for ‘sound records, video records and films’ and a lesser reputation for games and toys (judgment under appeal, paragraph 54). In the fourth place, the [OSCURATO:PERSONA] upheld the [OSCURATO:PERSONA] of Appeal’s assessments as regards the existence of the earlier marks’ distinctive character (judgment under appeal, paragraphs 55 to 58). In the fifth place and lastly, applying by analogy [OSCURATO:PERSONA] C‑408/01 [OSCURATO:PERSONA]‑Salomon and [OSCURATO:PERSONA] [2003] ECR I‑12537, paragraphs 27 to 31, and [OSCURATO:PERSONA] C‑252/07 [OSCURATO:PERSONA] [2008] ECR I‑8823, paragraphs 57 and 58, it pointed out that the implementation of the protection introduced by [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 does not require the existence of a likelihood of confusion (judgment under appeal, paragraph 59). 21 In paragraph 60 of the judgment under appeal, the [OSCURATO:PERSONA] thus confirmed the [OSCURATO:PERSONA] of Appeal’s reasoning according to which, notwithstanding the difference between the goods in question, there was a link between the signs at issue, since the mark applied for would call to mind the earlier mark with a reputation on the part of the relevant public. 22 As regards the unfair advantage taken of the distinctive character or the repute of the earlier marks, that [OSCURATO:PERSONA] stated, in paragraph 61 of the judgment under appeal, that, although the proprietor is not required to demonstrate present injury to its mark for the purposes of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94, he must, however, prove that there is a serious risk that such an injury will occur. 23 In paragraph 63 of the judgment under appeal, the [OSCURATO:PERSONA] pointed out that unfair advantage has been taken of distinctive character or repute where there is clear exploitation and free-riding on the coat tails of a famous mark or an attempt to trade upon its reputation. 24 In paragraph 65, it stated that, the stronger the earlier mark’s distinctive character and reputation, the easier it will be to accept that detriment has been caused to that mark for the purposes of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. 25 In paragraph 67 of the judgment under appeal, that [OSCURATO:PERSONA], referring, in particular, to paragraph 36 of [OSCURATO:PERSONA] , also pointed out that the existence of such injury, in so far as what is prohibited is the drawing of benefit from the earlier mark by the proprietor of the mark applied for, must be assessed by reference to average consumers of the goods for which the mark applied for is registered, who are reasonably well informed and reasonably observant and circumspect. 26 In paragraph 71 of the judgment under appeal, the [OSCURATO:PERSONA] held that there may be an image transfer even though the goods are quite different. It is not altogether inconceivable that an association could be made between the signs at issue on the part of the relevant public and, even if there is no likelihood of confusion by that public, that it could be led to transfer the values of the earlier marks to the goods bearing the mark applied for. 27 [OSCURATO:PERSONA] held, in paragraph 76 of the judgment under appeal, that, as the appellant did not argue before the [OSCURATO:PERSONA] of Appeal the existence of due cause for the use of the mark applied for, the [OSCURATO:PERSONA] of Appeal could reasonably conclude that there was no due cause for the use of the mark. 28 Lastly, the [OSCURATO:PERSONA] held, in paragraph 80 of the judgment under appeal, that, as the [OSCURATO:PERSONA] of Appeal’s decision was not based on [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 40/94, there was no need to adjudicate on the first plea in law. Forms of order sought by the parties before the [OSCURATO:PERSONA] 29 By its appeal, the appellant claims that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal; –        uphold its action for annulment of the contested decision; –        in the alternative, refer the case back to the [OSCURATO:PERSONA]; –        order OHIM and [OSCURATO:PERSONA] to pay the costs, including those incurred at first instance. 30 [OSCURATO:PERSONA] and OHIM contend that the [OSCURATO:PERSONA] should dismiss the appeal and order the appellant to pay the costs. The appeal 31 [OSCURATO:PERSONA] 181 of the Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a report from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], dismiss the appeal by reasoned order without opening the oral procedure. Arguments of the parties 32 In the first place, You-Q calls in question certain parts of the account of the facts by the [OSCURATO:PERSONA] inasmuch as the statement of the facts and the summary of the background to the dispute are incorrect. The appellant states that the [OSCURATO:PERSONA] summary of the contested decision does not correctly reproduce the findings in that decision. [OSCURATO:PERSONA] stated that the [OSCURATO:PERSONA] of Appeal found that the goods were different whereas the [OSCURATO:PERSONA] of Appeal, in its decision, found that they were quite different. 33 You‑Q also submits that the [OSCURATO:PERSONA] failed to properly reflect the [OSCURATO:PERSONA] decision and the contested decision with regard to the establishment of the link that [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 requires for its application. [OSCURATO:PERSONA], the [OSCURATO:PERSONA] incorrectly stated that the [OSCURATO:PERSONA] of Appeal found that ‘although the goods are dissimilar, the relevant public overlaps’ even though the [OSCURATO:PERSONA] of Appeal found that although the actual goods compared are very dissimilar, the two sets of relevant public overlap. 34 The appellant takes the view, moreover, that those statements are incomprehensible in view of [OSCURATO:PERSONA] (paragraphs 46 and 47) and [OSCURATO:PERSONA] (paragraph 24) on which the [OSCURATO:PERSONA] relies. Those judgments cannot, according to the appellant, serve as a basis inasmuch as they relate to the issue of assessing the reputation of a registered mark in relation to the relevant section of the public as regards the goods covered by that mark and not to that of an overlap between the relevant public. 35 [OSCURATO:PERSONA]Q’s submission, the [OSCURATO:PERSONA] did not therefore properly assess the existence of the required link and should have concluded that such a link is non‑existent. 36 In the second place, You‑Q disputes the ‘Law’ part of the judgment under appeal inasmuch as it includes further infringements of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. 37 You-Q submits that the [OSCURATO:PERSONA] incorrectly reflected its arguments regarding the distinctiveness of the earlier marks. You‑Q did not argue that the word ‘[OSCURATO:PERSONA]’ does not have any distinctive character, but disputed the [OSCURATO:PERSONA] of Appeal’s assessment that the earlier mark is an invented word and is highly distinctive. In the appellant’s submission, it is not an invented word since it is derived from the word ‘beat’. It deduces from that that the [OSCURATO:PERSONA] erred by not accepting an argument which had not been put forward. 38 According to You-Q, the [OSCURATO:PERSONA] finding that OHIM correctly observed that the marks [OSCURATO:PERSONA] and [OSCURATO:PERSONA] do not merely refer to the English word ‘beat’, but combine the words ‘beat’ and ‘beetle’ in such a way as to create a very distinctive and original combination is therefore unfounded. Likewise, the [OSCURATO:PERSONA] finding that the term ‘beatles’ has acquired its own distinctive character so that, when faced with the earlier marks, the public at large will immediately think of the eponymous group is inconsistent and not based on any evidence. 39 You‑Q also criticises the statement that each mark has an economic value which is independent of and separate from that of the goods and services for which it is registered inasmuch as the protection conferred by [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 is not dissociated from the goods and services for which the mark with a reputation is registered. Furthermore, the appellant takes the view that the [OSCURATO:PERSONA] applied an interpretation of that provision which was incorrect and too extensive. It states that the judgment in Sigla v OHIM – [OSCURATO:PERSONA] (VIPS) , on which the judgment under appeal is based, is contrary to that provision and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] C‑487/07 L’Oréal and Others [2009] ECR I-5185. 40 According to You-Q, by stating that, according to the [OSCURATO:PERSONA] of Appeal, the public for which the earlier marks were intended was the public at large, the [OSCURATO:PERSONA] erred since the [OSCURATO:PERSONA] found, in the contested decision, that ‘the “sound records, video records, films” and merchandising products (such as toys and games), for which the earlier marks enjoy a reputation and are distinctive, are addressed to the public at large.’ 41 You‑Q denies that it maintained that the distinctive character and reputation of the earlier marks had to be examined by reference to the public concerned by the mark applied for, namely a specialist public. 42 According to You-Q, the assessment made by the [OSCURATO:PERSONA], in paragraph 35 of the judgment under appeal, with regard to the relevant public, in particular the taking into account of overlaps in the public in assessing the reputation of an earlier mark, is contrary to [OSCURATO:PERSONA] (paragraph 47) and to [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. An overlap is not evident from the facts and the goods at issue are so dissimilar that the mark applied for is unlikely to bring the earlier marks to the mind of the relevant public. 43 Furthermore, You-Q submits that the [OSCURATO:PERSONA] erred in holding that the [OSCURATO:PERSONA] of Appeal was right to find that the requirement of reputation had been satisfied. [OSCURATO:PERSONA] did not file any evidence to that effect. 44 According to You-Q, the [OSCURATO:PERSONA] assessment regarding the similarity of the signs at issue goes beyond a proper assessment within the framework of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. It also calls into question the [OSCURATO:PERSONA] finding as regards the required link. 45 Lastly, You-Q disputes the [OSCURATO:PERSONA] assessment of the requirement of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 that unfair advantage be taken of the distinctive character or the repute of the earlier marks. 46 You-Q states, in this respect, that no evidence regarding the required serious risk was submitted. 47 You-Q also submits that, in view of the difference between the goods in question, no association can be made between the signs at issue on the part of the relevant public. Such an association could not, in any event, establish the necessary link as required, let alone the serious risk of taking unfair advantage. 48 Furthermore, no evidence has been provided of a link between the goods in question, a commercial advantage which You-Q derives from use or the intentional registration of the mark to create an association in the mind of the public with the earlier marks. 49 You‑Q adds that the reasoning that the relevant public, on account of the handicap in question, is attracted to the positive image of the earlier marks does not establish that there is a serious risk of taking unfair advantage. Likewise, it is irrelevant that a part of the public targeted by the goods covered by the mark applied for belongs to the generation of persons who know the goods covered by the earlier marks. 50 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] made no error of law or fact. 51 OHIM submits that the appeal is inadmissible in so far as, first, the appellant fails to explain clearly the errors of law made in the judgment under appeal and, secondly, the alleged errors made when applying [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 – with regard to the reputation, the relevant public, the goods covered by the marks at issue and the link necessary for a finding of unfair advantage – in reality concern the assessment of the facts and not questions of law. 52 OHIM thus maintains that, according to the [OSCURATO:PERSONA], inter alia in an order of 9 July 2010 in [OSCURATO:PERSONA] C‑461/09 P [OSCURATO:PERSONA] v OHIM , paragraph 20, and in [OSCURATO:PERSONA] C‑361/04 P Ruiz‑Picasso and Others v OHIM [2006] ECR I‑643, paragraph 23, the definition of the relevant public, the comparison of the signs and the assessment of their similarity are assessments of fact which cannot be reviewed on appeal. Likewise, OHIM takes the view that assessing the reputation of the earlier marks for the relevant public, establishing the nature of the respective goods to assess their similarity, and the global test for ascertaining the link required for a finding of unfair advantage are matters of fact. 53 In the alternative, if the appeal is considered to be admissible, OHIM submits that the appellant’s action is manifestly unfounded. 54 As regards the degree of similarity between the goods in respect of which the marks at issue have been registered and the existence of a link between those marks, OHIM, referring to the case-law of the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] T‑67/04 [OSCURATO:SOCIETA] v OHIM – Spa-[OSCURATO:PERSONA] (SPA-[OSCURATO:PERSONA]) [OSCURATO:PERSONA]‑1825, paragraph 41, and Sigla v OHIM – [OSCURATO:PERSONA] (VIPS) , paragraph 47), submits that an unfair advantage can only occur as the result of a link established in the mind of the public between the later sign and the earlier mark. The existence of that link must be appreciated globally, taking into account all factors relevant to the case and in particular the degree of similarity of the signs, the strength of the earlier mark’s distinctiveness and its reputation. 55 OHIM takes the view, in particular, that the [OSCURATO:PERSONA] finding as to the overlap of the relevant publics is correct. Relying on paragraphs 48 to 53 of [OSCURATO:PERSONA] , it states that the public can associate two marks only if it is likely to encounter both of them on the market, either simultaneously or at different times. It adds that the likelihood of association is particularly strong in the present case because the distinctiveness of the earlier marks is very strong. 56 OHIM therefore disputes the appellant’s arguments claiming that a difference in the nature of the goods automatically means that no finding of the requisite link can be made by the relevant public. Findings of the [OSCURATO:PERSONA] 57 It must be pointed out that, although You-Q does not put forward any pleas in support of its appeal, but sets out its criticisms of the judgment under appeal on a linear basis, it is possible to distinguish, in its arguments, those elements relating to the factual assessments made by the [OSCURATO:PERSONA] from those relating to an alleged infringement of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94. 58 In the first place, therefore, You-Q calls into question (i) the [OSCURATO:PERSONA] reproduction of the background to the dispute and its arguments relating to the distinctive character of the earlier marks and (ii) the [OSCURATO:PERSONA] factual assessments relating to the similarity of the signs at issue, the reputation of the earlier marks, the relevant public, the link which may be established between the mark applied for and the earlier marks, and the unfair advantage taken of the distinctive character or repute of the earlier marks, but without pleading any error of law in the judgment under appeal. 59 [OSCURATO:PERSONA] 256(1) TFEU and the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], an appeal lies on a point of law only. [OSCURATO:PERSONA] thus has exclusive jurisdiction to find and appraise the relevant facts. The appraisal of those facts thus does not, save where the facts are distorted, constitute a point of law subject, as such, to review by the [OSCURATO:PERSONA] of Justice on appeal (see, to that effect, [OSCURATO:PERSONA] C‑280/99 P to C‑282/99 P [OSCURATO:PERSONA] and Others v Commission [2001] ECR I-4717, paragraph 78; [OSCURATO:PERSONA] C‑16/06 [OSCURATO:PERSONA] v OHIM [2008] ECR I‑10053, paragraph 68; and [OSCURATO:PERSONA] C‑335/09 P Poland v Commission [2012] ECR I‑0000, paragraph 24), bearing in mind that a distortion must be obvious from the documents on the [OSCURATO:PERSONA] file, without there being any need to carry out a new assessment of the facts and the evidence (see order of 31 March 2011 in [OSCURATO:PERSONA] C‑433/10 P Mauerhofer v Commission , paragraph 71). 60 Findings relating to the characteristics of the relevant public and its degree of attention, perception or attitude therefore represent appraisals of fact and are not consequently subject to review by the [OSCURATO:PERSONA] of Justice on appeal (see, to that effect, order in [OSCURATO:PERSONA] v OHIM , paragraphs 20 and 21). 61 Likewise, the assessment of the reputation of the earlier marks and of the link which the public may make between the mark applied for and the earlier marks constitutes, as OHIM submits, a matter of fact. 62 Lastly, You-Q calls into question the [OSCURATO:PERSONA] assessment of certain items of evidence. Those items of evidence relate to the reputation of the earlier marks and to the existence, first, of a serious risk of taking unfair advantage, secondly, to a link between the goods at issue and, thirdly, to a commercial advantage which You-Q derives from the use of the mark to create an association in the mind of the public with the earlier marks. 63 It must be borne in mind, in that regard, that the [OSCURATO:PERSONA] does not have jurisdiction to re-examine the evidence which the [OSCURATO:PERSONA] has accepted. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the [OSCURATO:PERSONA] alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the [OSCURATO:PERSONA] of Justice (see, to that effect, order in Mauerhofer v Commission , paragraph 70). 64 As it has not been claimed that the facts or the clear sense of the evidence were distorted, You-Q’s arguments must therefore be rejected as manifestly inadmissible. 65 In the second place, You-Q pleads, in essence, infringement of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 in so far as the [OSCURATO:PERSONA] held that there was an overlap of publics in spite of a difference between the goods covered by the mark applied for and those covered by the earlier marks. You‑Q takes the view that the absence of similarity between those goods precludes any overlap on the part of the relevant publics. It deduces from this that the public is not able to make any link between the signs at issue and, therefore, that it cannot be established that any unfair advantage was taken of the distinctive character or the repute of the earlier marks. 66 [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 expressly envisages a situation in which an opposition is filed against an application for registration of a mark for goods or services which are not similar to those covered by the earlier marks. 67 [OSCURATO:PERSONA] has thus pointed out that [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94 expressly refers to the situation in which the goods or services are not similar (see, to that effect, judgment of 7 May 2009 in [OSCURATO:PERSONA]398/07 [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (Proprietary) and OHIM , paragraph 34). 68 It must also be pointed out that certain marks may have acquired such a reputation that it goes beyond the relevant public as regards the goods or services for which they were registered and that, in such a case, the relevant section of the public as regards the goods or services for which the later mark is registered may make a connection between the marks at issue, even though that public is wholly distinct from the relevant section of the public as regards the goods or services for which the earlier mark was registered (see, to that effect, [OSCURATO:PERSONA] , paragraphs 51 and 52). 69 [OSCURATO:PERSONA] was therefore right in holding that the publics overlapped in spite of a difference between the goods covered by the mark applied for and those covered by the earlier marks. Likewise, it could hold, without infringing [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 40/94, that, while the goods are quite different, it is not altogether inconceivable that the relevant public could make an association between the signs at issue and that it could be led to transfer the values of the earlier marks to the goods covered by the mark applied for and, therefore, that it was likely that the appellant could take unfair advantage of the repute of the earlier trade marks. 70 It follows that the appellant’s arguments must be rejected as manifestly unfounded. 71 In light of the foregoing, the present appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded. Costs 72 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings pursuant to [OSCURATO:PERSONA] 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. [OSCURATO:PERSONA]‑Q has been unsuccessful and OHIM and [OSCURATO:PERSONA] have applied for You‑Q to pay the costs, it must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. You‑Q BV shall pay the costs. [Signatures] * Language of the case: English.