Corte di giustizia UE n. 2583/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 13 March 2018 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — Invalidity proceedings — Figurative mark in black, yellow and white, containing the word element ‘mediaexpert’ — Failure to submit a translation of the registration certificate for the earlier mark — Rejection of the application for a declaration of invalidity) [OSCURATO:PERSONA] C‑560/17 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 22 September 2017, Mediaexpert sp. z o.o. , established in Warsaw (Poland), represented by J. Aftyka, radca prawny, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of J. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], D. Šváby (Rapporteur) and M. Vilaras, Judges, [OSCURATO:PERSONA]: Y. Bot, [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1 By its appeal, Mediaexpert sp. z o.o. seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 20 July 2017, Mediaexpert v EUIPO — Mediaexpert (mediaexpert) (T‑780/16, not published, EU:T:2017:538; ‘the judgment under appeal’), by which the [OSCURATO:PERSONA] dismissed its action seeking annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 11 August 2016 ([OSCURATO:PERSONA] R 2583/2015-1), concerning invalidity proceedings between Mediaexpert and Mediaexpert SA (‘the decision in dispute’). The appeal 2 Pursuant to [OSCURATO:PERSONA] 181 of its Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal in whole or in part. 3 On 16 February 2018, the [OSCURATO:PERSONA] took the following position: ‘For the reasons to be set out below, I propose that the [OSCURATO:PERSONA] should dismiss the appeal in [OSCURATO:PERSONA] C‑560/17 P as being, in part, manifestly unfounded and, in part, manifestly inadmissible and order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice. It is apparent from page 3 of the present appeal that the appellant seeks to have the judgment under appeal set aside on the ground that the [OSCURATO:PERSONA] “repeatedly infringed the [EU] Treaty and [Council] [OSCURATO:PERSONA] [(EC)] No 207/2009 [of 26 February 2009 on the EU trade mark (OJ 2009 L 78, p. 1] ..., namely the principle of fair procedure under [OSCURATO:PERSONA] 6(1) TEU, in conjunction with the second paragraph of [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] [of the [OSCURATO:PERSONA]], as well as [OSCURATO:PERSONA] 8(1)(a) and (b) [of [OSCURATO:PERSONA] 207/2009] by reason of a distortion of the facts”. However, the arguments put forward by the appellant do not correspond to the headings of those grounds of appeal, and the appellant makes no further reference to those provisions in its arguments. That being the case, and notwithstanding the somewhat cryptic nature of the appellant’s arguments, it relies, essentially, on two grounds of appeal concerning the [OSCURATO:PERSONA] failure to take account, firstly, of EUIPO’s previous practice and, secondly, of a procedural flaw. The first ground of appeal 1.      By the first ground of appeal, the appellant criticises the [OSCURATO:PERSONA] for not having ruled on the discrepancy between EUIPO’s practice, set out in the guidelines concerning proceedings before EUIPO (“the EUIPO Guidelines”), and the decision in dispute. The application for a declaration of invalidity having been rejected by EUIPO owing to the absence of a translation into the language of the case of the extract from the Urząd [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) database concerning the registration of the earlier mark (“the extract from the database”), that legal assessment was, the appellant argues, contrary to the trade mark practice codified in the EUIPO Guidelines, under which a distinction is made between the admissibility conditions and the substantive conditions governing invalidity proceedings. [OSCURATO:PERSONA], it is submitted, failed to refer to that practice. 2.      In that regard, firstly, although the appellant alleges a distortion of the facts, I note that it confines itself to relying on such a distortion without, however, indicating the facts that have allegedly been distorted or producing any evidence serving to identify any distortion of the facts by the [OSCURATO:PERSONA], whereas, under settled case-law, the second subparagraph of [OSCURATO:PERSONA] 256(1) TFEU, the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 168(1)(d) of the Rules of Procedure, the appellant must indicate precisely the evidence alleged to have been distorted by the [OSCURATO:PERSONA] and show the errors of appraisal which, in its view, led to that distortion (judgment of 24 March 2011, Ferrero v OHIM , C‑552/09 P, EU:C:2011:177, paragraph 78). 3.      Secondly, it must be noted that the appellant’s arguments are based on a manifestly erroneous reading of the judgment under appeal since (i) the [OSCURATO:PERSONA], in paragraphs 60 to 62 of that judgment, examined the appellant’s arguments based on point 6.2, Part D, Section 1, of the EUIPO Guidelines, and (ii) the appellant relies for the first time, in support of the present appeal, on Part C, Section 1, of those guidelines relating to opposition procedures and not to applications for a declaration of invalidity. 4.      Furthermore, it must be recalled that the EUIPO Guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, [OSCURATO:PERSONA] , C‑149/11, EU:C:2012:816, paragraph 48). Moreover, to the extent that the decisions which the EUIPO Boards of Appeal are called on to take under [OSCURATO:PERSONA] 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the [OSCURATO:PERSONA] (judgment of 19 January 2012, OHIM v [OSCURATO:PERSONA] , C‑53/11 P, EU:C:2012:27, paragraph 57). 5.      As EUIPO’s previous practice codified in its abovementioned guidelines is not binding, and as the [OSCURATO:PERSONA], in paragraphs 35 to 44 of the judgment under appeal, based itself on the distinction made by the EU legislature between the admissibility conditions and the substantive conditions governing invalidity proceedings in order to reject the appellant’s arguments, the reasoning regarding EUIPO’s practice must be rejected as being manifestly unfounded. 6.      It follows that the first ground of appeal must be rejected as being manifestly unfounded. The second ground of appeal 7.      By the second ground of appeal, the appellant invokes a failure on the part of the [OSCURATO:PERSONA] to take into account a procedural flaw by reason of EUIPO’s rejection of the application for a declaration of invalidity. It is submitted that the [OSCURATO:PERSONA] wrongfully omitted to take into account the fact that, in rejecting the substantive application for a declaration of invalidity, EUIPO vitiated the decision in dispute by a procedural flaw, whereas the appellant had remedied the irregularities identified by EUIPO by providing a list drawn up in English of the goods and services covered by the earlier mark. In this regard, the appellant submits that EUIPO was aware of the scope of the protection of the earlier mark and that, considering EUIPO’s conduct, the appellant could not foresee that, by failing to provide a translation of the extract from the database, its application would be rejected. 8.      In this regard, it must be recalled that, under [OSCURATO:PERSONA] 168(1)(b) and [OSCURATO:PERSONA] 169(2) of the Rules of Procedure, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of that appeal, failing which the appeal or specific ground of appeal will be declared inadmissible (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 29). 9.      Furthermore, according to settled case-law, an appeal which merely reiterates the pleas in law and arguments already put forward before the [OSCURATO:PERSONA] amounts in reality to no more than a request for a re-examination of the application bought before the [OSCURATO:PERSONA], and consequently falls outside the jurisdiction of the [OSCURATO:PERSONA] of Justice (see, to that effect, judgment of 4 July 2000, Bergaderm and Goupil v Commission , C‑352/98 P, EU:C:2000:361, paragraph 35, and order of 7 July 2016, Fapricela v Commission , C‑510/15 P, not published, EU:C:2016:547, paragraph 29). 10.      In the present case, the appellant does not cite any paragraph of the judgment under appeal or identify the paragraphs of that judgment which it contests, and the arguments submitted under the second ground of appeal reiterate the arguments succinctly put before the [OSCURATO:PERSONA], with the result that the appellant is in fact merely criticising the decision of EUIPO’s [OSCURATO:PERSONA] and the decision in dispute without identifying specifically the error of law that allegedly vitiates the [OSCURATO:PERSONA] findings. 11.      In particular, it should be stressed that the [OSCURATO:PERSONA] examined (i) the question of the need for a translation of the extract from the database, in paragraphs 25 to 53 of the judgment under appeal, by answering the same arguments as those put forward by the appellant under the present ground of appeal, and (ii) the allegations regarding a breach of the principle of protection of legitimate expectations, by answering, in paragraphs 58 to 63 of the judgment under appeal, the appellant’s arguments that EUIPO had given it the impression that the invalidity proceedings were proper and complete. 12.      It follows that the second ground of appeal must be rejected as manifestly inadmissible and that, consequently, the action must be dismissed in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible. 13.      In the light of all of those considerations, the appeal brought by Mediaexpert must therefore be dismissed and the latter ordered to pay the costs, in accordance with [OSCURATO:PERSONA] 137 and [OSCURATO:PERSONA] 184(1) of the Rules of Procedure.’ 4 It is clear from the considerations set out in points 1 to 3 of the proposal of the [OSCURATO:PERSONA], firstly, that, inasmuch as the first ground of appeal concerns a distortion of the facts, it is manifestly inadmissible since the appellant has not indicated the facts that the [OSCURATO:PERSONA] allegedly distorted; secondly, to the extent that, by that ground of appeal, the appellant criticises the [OSCURATO:PERSONA] for not ruling on the discrepancy between Part C, Section 1, of the EUIPO Guidelines and the decision in dispute, it raises, for the first time at the appeal stage, a new plea in law, seeking to change the subject matter of the proceedings before the [OSCURATO:PERSONA], which is prohibited by the second sentence of [OSCURATO:PERSONA] 170(1) of the Rules of Procedure; and, thirdly, to the extent that, by that ground of appeal, the appellant criticises the [OSCURATO:PERSONA] for not examining its arguments based on point 6.2 of Part D, Section 1, of the EUIPO Guidelines, this has no basis in fact, as the [OSCURATO:PERSONA] examined those arguments in paragraphs 60 to 62 of the judgment under appeal. It follows that the first ground of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded. 5 Moreover, it is clear from the considerations set out in points 7 to 12 of the proposal of the [OSCURATO:PERSONA] that the second ground of appeal is manifestly inadmissible. 6 Consequently, the present appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded. Costs 7 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order is adopted before the appeal has been served on the respondent, and therefore before the latter could have incurred costs, Mediaexpert must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded. 2. Mediaexpert sp. z o.o. shall bear its own costs. Luxembourg, 13 March 2018. A. [OSCURATO:PERSONA] J. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.