Corte di giustizia UE n. 1864/2016

62016CO0041_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑41/16 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 25 January 2016, [OSCURATO:PERSONA], residing in Guangzhou (China), represented by Y. Zhang, Rechtsanwalt, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of D. Šváby, President of the [OSCURATO:PERSONA], M. Safjan (Rapporteur) and M. Vilaras, Judges, [OSCURATO:PERSONA]: M. Bobek, Registrar: A. [OSCURATO:PERSONA], having regard to the decision taken, after hearing the [OSCURATO:PERSONA], to give a decision on the action by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1. By its appeal, [OSCURATO:PERSONA] seeks the annulment of the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 18 November 2015 in Liu v OHIM — DSN [OSCURATO:PERSONA] ([OSCURATO:PERSONA] for a portable computer) (T‑813/14, not published, ‘the judgment under appeal’, EU:T:2015:868), by which the [OSCURATO:PERSONA] dismissed its action seeking the annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 7 October 2014 ([OSCURATO:PERSONA] R 1864/2013-3), relating to proceedings for a declaration of invalidity between DSN [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. 2. [OSCURATO:PERSONA] also asks the [OSCURATO:PERSONA] to annul that decision of 7 October 2014 and to dismiss the application for a declaration of invalidity made by DSN [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] of Appeal of EUIPO. 3. In support of his appeal, [OSCURATO:PERSONA] raises two grounds, alleging, respectively: – infringement of [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1), – the erroneous assessment of certain items of evidence. The appeal 4. [OSCURATO:PERSONA] 181 of its [OSCURATO:PERSONA] 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. 5. [OSCURATO:PERSONA] took the following position on 21 April 2016: ‘1. I propose that the [OSCURATO:PERSONA] dismiss the appeal lodged by [OSCURATO:PERSONA] seeking the annulment of the judgment under appeal. From my point of view, the appeal brought by [OSCURATO:PERSONA] is in part manifestly inadmissible and in part manifestly unfounded for the following reasons: The first ground of appeal: infringement of [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 6/2002 2. By his first ground of appeal, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] made an error of law in the interpretation of [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 6/2002. The first ground of appeal is essentially divided into two parts. 3. By the second part of the first ground of appeal, the appellant submits that the [OSCURATO:PERSONA] made an error in holding that it was not established that he was the creator of the design at issue. 4. The second part of the first ground of appeal is manifestly inadmissible. The appellant simply calls into question the findings of fact made by the [OSCURATO:PERSONA], in particular its assessment of the evidence relating to the identity of the creator of the design at issue, but he does not claim that a distortion of that evidence was committed. However, the appraisal of the facts and evidence does not constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject, as such, to review by the [OSCURATO:PERSONA] of Justice in an appeal (judgment of 20 October 2011 in PepsiCo v [OSCURATO:PERSONA] , C‑281/10 P, EU:C:2011:679, paragraph 45). 5. By the first part of the first ground of appeal, [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] did not take account of his arguments relating to the findings of the [OSCURATO:PERSONA] of Appeal concerning [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 6/2002. The appellant submits that the [OSCURATO:PERSONA] merely examined the issue of the identity of the creator of the design at issue. 6. The first part of the first ground of appeal is clearly unfounded. [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 6/2002 provides that, for the purposes of Articles 5 and 6 of the regulation, a disclosure is not to be taken into consideration for the purpose of applying Articles 5 and 6 if a design for which protection is claimed under a registered Community design has been made available to the public “by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer or his successor in title”. Since it was not established that [OSCURATO:PERSONA] was the creator of the design at issue, the [OSCURATO:PERSONA] did not err in holding, in paragraph 30 of the judgment under appeal, that [OSCURATO:PERSONA] was not justified in relying on the provisions of [OSCURATO:PERSONA] 7(2) of that regulation. 7. The first ground of appeal must consequently be rejected since it is in part manifestly unfounded and in part manifestly inadmissible. The second ground of appeal: erroneous assessment of certain items of evidence 8. By the second ground of appeal, the appellant essentially submits that the [OSCURATO:PERSONA] did not take into account some of his arguments relating to the unequal treatment of the evidence before the [OSCURATO:PERSONA] of Appeal. That ground of appeal is essentially based on two arguments. 9. First, the appellant disputes the probative value of some declarations signed by specific clients and submitted by DSN [OSCURATO:PERSONA] and that of a purchase invoice from Targus, asserting that there are errors in those documents. The appellant argues that the [OSCURATO:PERSONA] did not consider that argument. 10. Secondly, the appellant disputes the [OSCURATO:PERSONA] finding that it waited “until 13 February 2011 to commission a designer to design the packaging of that design, although the first sales had already taken place”. He seeks to correct the wording of his application before the [OSCURATO:PERSONA] by stating that it was not “packaging” but “particulars to be printed on iPad cases”. 11. The second ground of appeal is manifestly inadmissible. The arguments relied on by the appellant in support of his second ground of appeal merely concern the assessment of the facts and evidence. The appellant does not state that the facts and evidence submitted to the [OSCURATO:PERSONA] were distorted. As has already been stated in relation to the first ground of appeal, the assessment of those facts and evidence does not constitute, save where the clear sense of the facts and evidence has been distorted, a question of law which is subject to review by the [OSCURATO:PERSONA] in the context of an appeal (see, inter alia, judgment of 12 July 2012 in [OSCURATO:PERSONA] v OHIM , C‑311/11 P, EU:C:2012:460, paragraph 57 and the case-law cited). 12. It follows that the second ground of appeal is clearly inadmissible.’ 6. It is necessary to dismiss the appeal on the same grounds as those stated by the [OSCURATO:PERSONA]. Costs 7. [OSCURATO:PERSONA] 137 of the [OSCURATO:PERSONA] 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. Since the present order was adopted before the appeal was served on the respondent and therefore before the latter could have incurred costs, [OSCURATO:PERSONA] should bear his own costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] is ordered to bear his own costs.