Corte di giustizia UE n. 206/2015

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 4 June 2015 ( * ) (Appeals — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — [OSCURATO:PERSONA] word mark [OSCURATO:PERSONA] — Application for registration — [OSCURATO:PERSONA] proceedings — Earlier national figurative mark AUTOGLASS — Partial refusal to register — Appeal clearly inadmissible and clearly unfounded) [OSCURATO:PERSONA] C‑579/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 12 December 2014, [OSCURATO:PERSONA] GmbH & Co. KG, established in Cologne (Germany), represented by C. Weil, Rechtsanwalt, appellant, the other parties to the proceedings being: Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM), defendant at first instance, [OSCURATO:PERSONA] kft — [OSCURATO:PERSONA], intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of S. Rodin, President of the [OSCURATO:PERSONA], M. Berger and F. Biltgen (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: M. Wathelet, Registrar: 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, [OSCURATO:PERSONA] GmbH & Co. KG (‘[OSCURATO:PERSONA]’) seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑297/13, EU:T:2014:893) (‘the judgment under appeal’), by which that court dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM) of 3 April 2013 ([OSCURATO:PERSONA] R 206/2102-2) relating to opposition proceedings between [OSCURATO:PERSONA] kft — [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’) and [OSCURATO:PERSONA] (‘the contested decision’). Legal context 2 [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the [OSCURATO:PERSONA] trade mark (OJ 1994 L 11, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 3288/94 of 22 December 1994 (OJ 2004 L 349, p. 83) (‘[OSCURATO:PERSONA] 40/94’), was repealed and replaced by [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. None the less, in view of the date on which the application for registration of a [OSCURATO:PERSONA] trade mark was lodged, the provisions of [OSCURATO:PERSONA] 40/94 remain applicable. 3 [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 40/94, entitled ‘Relative grounds for refusal’, provides in paragraph 1 thereof as follows: ‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered: … (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.’ Background to the dispute 4 The background to the dispute, as set out by the [OSCURATO:PERSONA] in paragraphs 1 to 11 of the judgment under appeal, may be summarised as follows. 5 On 14 June 2007, [OSCURATO:PERSONA] filed an application for registration of a [OSCURATO:PERSONA] trade mark with OHIM pursuant to [OSCURATO:PERSONA] 40/94. 6 The mark for which registration was sought is the word sign ‘[OSCURATO:PERSONA]’. 7 The goods and services in respect of which registration was sought are in, inter alia, Classes 12 and 37 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended (‘the [OSCURATO:PERSONA]’), and correspond, for each of those classes, to the following description: –        Class 12: ‘Vehicles; apparatus for locomotion by land, air or water; parts for land vehicles, namely windscreens, glass for car windows, sunscreen films, headlamps and headlamp glasses, sun roofs and mirrors’; –        Class 37: ‘Building construction; repair; installation services; automobile glazing services; glazing’. 8 [OSCURATO:PERSONA] trade mark application was published in [OSCURATO:PERSONA] 62/2007 of 12 November 2007. 9 On 18 January 2008, in reliance on the ground for refusal set out in [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 40/94, [OSCURATO:PERSONA] filed a notice of opposition to registration of the mark applied for in respect of the goods and services identified at paragraph 7 above, on the basis of the national figurative mark, registered in Poland on 7 December 2005 under No 170096 (‘the earlier mark’), reproduced below: 10 The earlier mark covers goods and services falling within Classes 12, 21 and 37 of the [OSCURATO:PERSONA] and corresponding, for each of those classes, to the following description: –        Class 12: ‘windshields, windscreens, windows, sunroofs, mirror glasses, all for vehicles’; –        Class 21: ‘glass for vehicle windows; unworked and semi-worked glass (other than building glass); glassware; glass for vehicle lamps; glass fibres, all in the form of sheets (not textile), blocks and rods, all for use in manufacture; non-electric instruments and materials included in Class 21, all for cleaning purposes’; –        Class 37: ‘installation of windscreens, glass, glazing products, windows, body glass, alarms, sound systems and parts and fittings for vehicles; maintenance and repair of vehicle glass; advisory and consultancy services relating to all the aforesaid services’. 11 On 9 January 2012, the [OSCURATO:PERSONA] of OHIM upheld the opposition in respect of the goods and services in Classes 12 and 37 of the [OSCURATO:PERSONA]. 12 On 26 January 2012, [OSCURATO:PERSONA] lodged an appeal with OHIM against that decision. 13 By the contested decision, the [OSCURATO:PERSONA] of Appeal of OHIM dismissed the appeal. It concluded, on the basis of the earlier mark, that there was a ‘likelihood of confusion’ within the meaning of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009, with regard to the goods and services in Classes 12 and 37 of the [OSCURATO:PERSONA]. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 14 By application lodged at the Registry of the [OSCURATO:PERSONA] on 29 May 2013, [OSCURATO:PERSONA] brought an action for annulment of the contested decision, based on a single plea in law alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. 15 By the judgment under appeal, the [OSCURATO:PERSONA] dismissed that action as unfounded. Forms of order sought by the appellant 16 [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should set aside the judgment under appeal, reject [OSCURATO:PERSONA] opposition to registration of the mark applied for and order [OSCURATO:PERSONA] and OHIM to pay the costs, including the costs incurred by [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] of Appeal of OHIM. The appeal 17 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. 18 That provision must be applied in the context of the present appeal. 19 In support of its appeal, [OSCURATO:PERSONA] relies on a single plea in law, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. The appellant’s single plea in law 20 [OSCURATO:PERSONA] submits, in support of its single plea in law, that, given that — as the [OSCURATO:PERSONA] stated at paragraph 41 of the judgment under appeal — the initial part of a word mark is likely to retain the consumer’s attention more than the parts that follow, the consumer will, in the present case, pay more attention to the word ‘[OSCURATO:PERSONA]’, which forms the initial part of the mark in respect of which registration is sought. 21 That submission is corroborated by the fact that, at paragraph 44 of the judgment under appeal, the [OSCURATO:PERSONA] found that neither of the elements of the mark in respect of which registration is sought can be considered to be dominant, which, according to [OSCURATO:PERSONA], means that the two elements ‘[OSCURATO:PERSONA]’ and ‘[OSCURATO:PERSONA]’ have the same distinctive character and are both dominant. If the ‘[OSCURATO:PERSONA]’ element is dominant, the consumer will grant it a high level of attention. 22 [OSCURATO:PERSONA] adds that, as the [OSCURATO:PERSONA] observed at paragraph 46 of the judgment under appeal, the mark in respect of which registration is sought must be considered as a whole when comparing the signs. In the present case, that means, according to [OSCURATO:PERSONA], that the ‘[OSCURATO:PERSONA]’ element cannot be disregarded. 23 By finding, at paragraphs 56 and 58 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal of OHIM was correct to conclude that there was some phonetic similarity, which must be described as ‘medium’, and some conceptual similarity between the marks at issue, the [OSCURATO:PERSONA] failed to take account of the ‘[OSCURATO:PERSONA]’ element. 24 It follows, according to [OSCURATO:PERSONA], that the [OSCURATO:PERSONA] failed to identify correctly the dominant elements of the marks at issue and was incorrect to conclude, at paragraphs 63 and 64 of the judgment under appeal, that there was a likelihood of confusion between the marks. Findings of the [OSCURATO:PERSONA] 25 First, it should be noted that, under [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 points of law only. [OSCURATO:PERSONA] has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where they distort the facts or evidence, constitute a point of law which is subject as such to review by the [OSCURATO:PERSONA] of Justice on appeal (see, inter alia, order in Bimbo v OHIM , C‑285/13 P, EU:C:2014:1751, paragraph 23 and the case-law cited). 26 In the present case, under cover of an alleged error of law by the [OSCURATO:PERSONA] in identifying the dominant elements of the mark for which registration is sought and in its assessment of the likelihood of confusion between the marks at issue, [OSCURATO:PERSONA] is in fact seeking to call into question the [OSCURATO:PERSONA] appraisal of the facts and, at the same time, to substitute its own appraisal for that of that court, without alleging any form of distortion in that regard. 27 Such an appraisal does not constitute a point of law and, as such, the [OSCURATO:PERSONA] of Justice does not have jurisdiction to review that appraisal on appeal (see, inter alia, order in Hrbek v OHIM , C‑42/12 P, EU:C:2012:765, paragraphs 43 and 44). 28 As a consequence, the single plea in law relied on by [OSCURATO:PERSONA] in support of its appeal is clearly inadmissible. 29 It should be added, for the sake of completeness, that the argument advanced by [OSCURATO:PERSONA] in the single plea in law in support of its appeal is based on the premiss that, at paragraph 44 of the judgment under appeal, the [OSCURATO:PERSONA] found that the elements ‘[OSCURATO:PERSONA]’ and ‘[OSCURATO:PERSONA]’ are both dominant. 30 According to [OSCURATO:PERSONA], by disregarding the dominant element ‘[OSCURATO:PERSONA]’, the [OSCURATO:PERSONA] erred in law and concluded, incorrectly, that there was a likelihood of confusion between the marks at issue. 31 That premiss is based on a clear misreading of the judgment under appeal. Indeed, it is apparent from paragraph 44 of that judgment that the [OSCURATO:PERSONA] expressly stated that ‘neither of the two elements of the trade mark sought can be considered to be dominant’. 32 Accordingly, the argument advanced by [OSCURATO:PERSONA] must be rejected as clearly unfounded. 33 In those circumstances, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure, the appeal must be dismissed. Costs 34 [OSCURATO:PERSONA] 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184 of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, as this order has been adopted without the appeal having been notified to the defendant, the applicant must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] GmbH & Co. KG is to pay the costs. [Signatures] * Language of the case: English.