Corte di giustizia UE n. 3109/2017

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 20 June 2017 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — Opposition proceedings — Application for registration of the word mark RESPIMER — Likelihood of confusion — Rejection of the application for registration) [OSCURATO:PERSONA] C‑662/16 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 16 December 2016, Laboratoire de la mer SASU, established in Saint-Malo (France), represented by J. Blanchard, avocat, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of E. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], J.-C. Bonichot and S. Rodin (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: J. [OSCURATO:PERSONA], [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, Laboratoire de la mer SASU seeks to have set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 18 October 2016, Laboratoire de la mer v EUIPO — [OSCURATO:PERSONA] (RESPIMER) (T‑109/16, not published, ‘the order under appeal’, EU:T:2016:627), by which that court dismissed its application for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 21 January 2016 ([OSCURATO:PERSONA] R 3109/2014-5) relating to opposition proceedings brought by [OSCURATO:PERSONA] GmbH & Co. KG following the filing of a trade mark application for the sign ‘RESPIMER’ by Laboratoire de la mer. 2 Laboratoire de la mer also claims that the [OSCURATO:PERSONA] should refer the case back to the [OSCURATO:PERSONA] and order EUIPO to pay the costs. 3 In support of its appeal, Laboratoire de la mer relies on a single ground of appeal, divided into two parts, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1). The appeal 4 Pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, 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 the appeal in whole or in part. 5 That provision should be applied in the present case. 6 On 15 May 2017, the [OSCURATO:PERSONA] took the following position: ‘1.      I propose that the appeal in this case be dismissed as in part manifestly inadmissible and in part manifestly unfounded and Laboratoire de la mer be ordered to pay the costs, in accordance with [OSCURATO:PERSONA] 137 and [OSCURATO:PERSONA] 184(1) of the Rules of Procedure, for the following reasons. 2.      The dispute giving rise to the present appeal concerns the EU trade mark applied for, RESPIMER, and the earlier EU trade mark RESPIMAT. In its single ground of appeal, which may be divided into two lines of argument, the appellant contends that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. The definition of the relevant public and its consequences 3.      In the first place, the appellant submits that, by endorsing the assessment of EUIPO’s [OSCURATO:PERSONA] of Appeal as regards the above average level of attention of the relevant public but failing to draw any appropriate conclusions from this, the [OSCURATO:PERSONA] did not conduct a proper examination of the legality of the [OSCURATO:PERSONA] of Appeal’s decision. That argument must be rejected as manifestly inadmissible as the appellant has not identified any error allegedly committed by the [OSCURATO:PERSONA]. Thus, the appellant has failed to indicate both those aspects of the order under appeal with which it takes issue and the legal arguments which support its submissions. 4.      Moreover, even if the appellant’s argument were to be understood as meaning that, given the high level of the relevant public’s attention, the [OSCURATO:PERSONA] should have concluded, after carrying out the global assessment of the likelihood of confusion, that there was less likelihood of confusion, that argument cannot succeed either. That question relates to the assessment of the facts, which — save where there is some distortion of the facts, which in this case is neither alleged nor apparent — is not subject to review by the [OSCURATO:PERSONA] of Justice on appeal. The assessment of the signs at issue and the conclusion to be drawn from the conceptual differences between those signs 5.      In the second place, the appellant submits that both EUIPO’s [OSCURATO:PERSONA] of Appeal and the [OSCURATO:PERSONA] made an incorrect assessment of the signs at issue and of the likelihood of confusion between the signs and, what is more, failed to draw appropriate conclusions from that assessment. Accordingly, account should have been taken of the fact that, for the vast majority of the relevant public, the term “respi” has a purely descriptive meaning, so that the relevant public will naturally focus on the last components of the signs at issue, namely “mat” and “mer”, resulting in the perception of a conceptual difference. Furthermore, the fact that a minority of the EU public who do not speak any language in which the terms “mer” and “mat” have any meaning may not perceive any conceptual difference between the signs at issue is of no consequence. There is no requirement that the whole of the EU public should have the same perception of the signs. 6.      That line of argument cannot succeed either, as it is manifestly inadmissible in part and manifestly unfounded in part. 7.      Accordingly, with regard, first, to the global assessment of the signs at issue and of the likelihood of confusion, the appellant essentially criticises, not the order under appeal, but the decision of the [OSCURATO:PERSONA] of Appeal of EUIPO. Indeed, the appellant merely repeats the argument that it put forward before the [OSCURATO:PERSONA], which was rejected by that court, without identifying any alleged errors of law in the order under appeal. It therefore appears that the appellant is in fact simply seeking a re-examination of the application submitted to the [OSCURATO:PERSONA] and of that court’s assessment of the facts. As indicated above, save where there is some distortion of the facts, the [OSCURATO:PERSONA] of Justice does not have jurisdiction to carry out such a review on appeal. 8.      Second, nor is it possible to accept the appellant’s argument that the [OSCURATO:PERSONA] of Appeal should have concluded that there was no likelihood of confusion between the signs at issue on account of the conceptual difference which, it claims, will be perceived between the signs at issue by part of the relevant public. 9.      First, contrary to what the appellant appears to consider, the [OSCURATO:PERSONA] did not find that there was absolutely no likelihood of confusion, owing to the conceptual difference between the signs at issue, for the section of the public for whom the terms “respi”, “mer” and “mat” have a meaning. On the contrary, it is apparent from paragraphs 33 to 40 of the order under appeal that the [OSCURATO:PERSONA] endorsed the assessment of EUIPO’s [OSCURATO:PERSONA] of Appeal that, even if part of the relevant public might perceive a certain conceptual difference between the two signs at issue, such a difference would not in any event be sufficient to cancel out entirely the visual and phonetic similarity found to exist between them. That assessment is the responsibility of the [OSCURATO:PERSONA] alone and cannot, as stated above, be called into question on appeal, save where there is distortion of the facts. 10.      Second, the appellant’s argument that, as regards the global assessment of the likelihood of confusion, the fact that there is a likelihood of confusion for only part of the relevant public is of no consequence, must in any event be rejected as manifestly unfounded. Thus, it is apparent from the case-law of the [OSCURATO:PERSONA] of Justice that it does not follow from [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 that, for an EU trade mark to be refused registration under that provision, the likelihood of confusion must exist in all [OSCURATO:PERSONA] and in all language areas of the [OSCURATO:PERSONA]. The unitary character of the EU trade mark, as affirmed in [OSCURATO:PERSONA] 1(2) of [OSCURATO:PERSONA] 207/2009, means that an earlier EU trade mark can be relied on in opposition proceedings against any application for registration of an EU trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the [OSCURATO:PERSONA] (judgment of 18 September 2008, Armacell v OHIM , C‑514/06 P, not published, EU:C:2008:511, paragraphs 56 and 57; orders of 16 September 2010, Dominio de la Vega v OHIM , C‑459/09 P, not published, EU:C:2010:533, paragraphs 29 and 30, and of 1 December 2016, [OSCURATO:PERSONA] & Consulting v EUIPO , C‑401/16 P, not published, EU:C:2016:923, paragraph 5). 11.      It follows that the appellant cannot criticise the [OSCURATO:PERSONA] for endorsing the conclusion of EUIPO’s [OSCURATO:PERSONA] of Appeal that there is a likelihood of confusion between the signs at issue, inter alia, because, in certain [OSCURATO:PERSONA] or language areas of the [OSCURATO:PERSONA] in which the words “respi”, “mer” and “mat” have no meaning, the signs at issue will be perceived as purely fanciful words devoid of any meaning. 12.      It follows from the foregoing considerations that the present appeal must be dismissed in its entirety as in part manifestly inadmissible and in part manifestly unfounded.’ 7 On the same grounds as those adopted by the [OSCURATO:PERSONA], the appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded. Costs 8 [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. Since the present order has been adopted before the appeal has been served on the defendant and, therefore, before the latter could have incurred costs, Laboratoire de la mer must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders that: 1. The appeal is dismissed. 2.      Laboratoire de la mer SASU is to bear its own costs. Luxembourg, 20 June 2017. A. [OSCURATO:PERSONA] E. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.