Corte di giustizia UE n. 207/2015

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 2 September 2015 ( * ) (Appeals — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — [OSCURATO:PERSONA] trade mark — Invalidity proceedings — [OSCURATO:PERSONA] trade mark — [OSCURATO:PERSONA] (EC) No 207/2009 — [OSCURATO:PERSONA] 7(1)(b) — Absolute ground for invalidity — No distinctive character — Shape of two packaged goblets) [OSCURATO:PERSONA] C‑531/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 21 November 2014, [OSCURATO:PERSONA], residing in Milano (Italy), represented by I. Prado and A. Tornato, avvocati, applicant, the other parties to the proceedings being: Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM), defendant at first instance, [OSCURATO:SOCIETA], established in Saint-Julien-lès-Metz (France), intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of S. Rodin, President of the [OSCURATO:PERSONA], A. [OSCURATO:PERSONA] (Rapporteur) and F. Biltgen, Judges, [OSCURATO:PERSONA]: M. Szpunar, Registrar: A. [OSCURATO:PERSONA], 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 his appeal, [OSCURATO:PERSONA] seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v OHIM — [OSCURATO:SOCIETA] (Shape of two packaged goblets) (T‑474/12, EU:T:2014:813; ‘the judgment under appeal’), by which the [OSCURATO:PERSONA] dismissed his action brought against the decision of the [OSCURATO:PERSONA] of Appeal of the Office for Harmonisation in the [OSCURATO:PERSONA] ([OSCURATO:PERSONA] and Designs) (OHIM) of 26 April 2012 ([OSCURATO:PERSONA] R 1301/2011-1), relating to invalidity proceedings between [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’) and [OSCURATO:PERSONA] (‘the contested decision’). Legal context 2 [OSCURATO:PERSONA] 7(1) of [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1), entitled ‘Absolute grounds for refusal’, provides: ‘The following shall not be registered: … (b)      trade-marks which are devoid of any distinctive character; …’ 3 [OSCURATO:PERSONA] 52(1) of that regulation, entitled ‘Absolute grounds for invalidity’, provides: ‘A [OSCURATO:PERSONA] trade mark shall be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings, (a)      where the [OSCURATO:PERSONA] trade mark has been registered contrary to the provisions of [OSCURATO:PERSONA] 7; …’ Background to the dispute and the contested decision 4 The background to the dispute, as set out by the [OSCURATO:PERSONA] in paragraphs 1 to 6 of the judgment under appeal, may be summarised as follows. 5 On 11 November 2009, [OSCURATO:PERSONA] obtained registration from OHIM, pursuant to [OSCURATO:PERSONA] 207/2009, under No 8132681 of the three-dimensional [OSCURATO:PERSONA] trade mark reproduced below (‘the contested trade mark’): 6 The goods in respect of which that mark was registered are in Class 30 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, and correspond to the following description: ‘Ice, flavoured ices, mixed sorbets, ice sorbets, ice creams, ice-cream drinks, ice-cream goods, ice-cream desserts, semi-frozen desserts, desserts, frozen yoghurt, pastry’. 7 On 19 January 2010, [OSCURATO:SOCIETA] filed an application for a declaration that the contested mark was invalid on the basis of [OSCURATO:PERSONA] 7(1)(b) and (d) of [OSCURATO:PERSONA] 207/2009, read in conjunction with [OSCURATO:PERSONA] 52(1)(a) of that regulation. 8 By decision of 21 April 2011, the [OSCURATO:PERSONA] of OHIM granted the application for a declaration of invalidity and declared the contested mark to be invalid for all the goods in question on the basis of the abovementioned provisions. In addition, it rejected the argument put forward by [OSCURATO:PERSONA] that the contested mark had acquired distinctive character through use in accordance with [OSCURATO:PERSONA] 7(3) of [OSCURATO:PERSONA] 207/2009. 9 On 16 June 2011, [OSCURATO:PERSONA] filed a notice of appeal at OHIM against the [OSCURATO:PERSONA] decision. 10 By the contested decision, the [OSCURATO:PERSONA] of Appeal of OHIM (‘the [OSCURATO:PERSONA] of Appeal’) dismissed the appeal. It confirmed the conclusions of the [OSCURATO:PERSONA] that, firstly, the contested mark was devoid of any distinctive character within the meaning of [OSCURATO:PERSONA] 7(1)(b) of [OSCURATO:PERSONA] 207/2009 and, secondly, [OSCURATO:PERSONA] had failed to demonstrate that the contested mark had acquired distinctive character through use, for the purposes of [OSCURATO:PERSONA] 7(3) of [OSCURATO:PERSONA] 207/2009, read in conjunction with [OSCURATO:PERSONA] 52(2) of that regulation. The proceedings before the [OSCURATO:PERSONA] and the judgment under appeal 11 By application lodged at the Registry of the [OSCURATO:PERSONA] on 31 October 2012, [OSCURATO:PERSONA] brought an action for annulment of the contested decision. 12 In support of that action, [OSCURATO:PERSONA] raised two pleas in law. 13 The first plea alleged an infringement of [OSCURATO:PERSONA] 7(1)(b) of [OSCURATO:PERSONA] 207/2009, in that, in essence, the [OSCURATO:PERSONA] of Appeal made an incorrect assessment of the distinctive character of the mark at issue. 14 The second plea alleged an infringement of [OSCURATO:PERSONA] 7(3) of [OSCURATO:PERSONA] 207/2009, in that the [OSCURATO:PERSONA] of Appeal wrongly assessed the evidence adduced by [OSCURATO:PERSONA] as insufficient to show that the mark at issue had acquired distinctive character through use. 15 In paragraphs 10 to 48 of the judgment under appeal, the [OSCURATO:PERSONA] rejected the first plea in law raised by [OSCURATO:PERSONA] in support of his action on the ground that he had failed to show that the [OSCURATO:PERSONA] of Appeal had erred in considering that the mark at issue was devoid of distinctive character within the meaning of [OSCURATO:PERSONA] 7(1)(b) of [OSCURATO:PERSONA] 207/2009. 16 [OSCURATO:PERSONA] held, in particular, in paragraph 38 of the judgment under appeal, that [OSCURATO:PERSONA] could not argue that the [OSCURATO:PERSONA] of Appeal did not carry out an overall assessment of the distinctive character of the contested mark, that it did not take account of its characteristics, and that it found merely that the sum of each of the elements of the contested mark lacked distinctive character. 17 In that regard, in paragraph 37 of the judgment under appeal, the [OSCURATO:PERSONA] noted, firstly, that the [OSCURATO:PERSONA] of Appeal took the view that the features of the mark at issue were not sufficient to make it an unusual design on the market for desserts, ice creams, sorbets and yoghurts that could clearly be recognised as different from the forms available. Secondly, the [OSCURATO:PERSONA] was of the view that the [OSCURATO:PERSONA] of Appeal held that the examples provided by [OSCURATO:SOCIETA] showed certain shapes of packaging that were very similar to the shape of the contested mark and, thirdly, that it took the view that the use of two containers held together by cardboard packaging was one of the most common ways of presenting the products to consumers. Finally, fourthly, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] of Appeal concluded that, taken as a whole, the mark at issue closely resembled the shapes that the goods in question were most likely to take and that, consequently, it had to be regarded as being devoid of any distinctive character. 18 Furthermore, in answer to [OSCURATO:PERSONA]’ argument that the [OSCURATO:PERSONA] of Appeal was wrong to hold that the mark at issue corresponded to a shape of packaging which is in common use on the market to sell the goods in question, while it was apparent from the examples which he supplied that the most commonly used packaging in that sector is totally different from that of the mark at issue, the [OSCURATO:PERSONA] held, in paragraph 40 of the judgment under appeal, that the fact that there are other types of packaging on the market for the goods in question is not inconsistent with the [OSCURATO:PERSONA] of Appeal’s finding that there are also shapes of packaging that are very similar to that of the mark at issue and which are not unusual. [OSCURATO:PERSONA] then stated that, for a finding that a trade mark does not have distinctive character, it is sufficient that the mark does not depart significantly from the norm or customs of the sector and it is not necessary to show that that mark is the form of packaging that is the most common on the market. 19 In paragraphs 49 to 59 of the judgment under appeal, the [OSCURATO:PERSONA] rejected the second plea in law raised by [OSCURATO:PERSONA] in support of his action. The form of order sought by the applicant 20 By his appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal and annul the contested decision; and –        order OHIM to pay the costs. The appeal 21 By virtue of [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. 22 In the present case, the [OSCURATO:PERSONA] considers that it has sufficient information from the documents in the case-file and decides, pursuant to that article, to rule by way of reasoned order, without it being necessary to serve the appeal on the defendant. 23 In support of his appeal, [OSCURATO:PERSONA] relies on a single ground of appeal, alleging that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 7(1)(b) of [OSCURATO:PERSONA] 207/2009. 24 [OSCURATO:PERSONA] ground of appeal is divided into two parts which it is appropriate to examine separately. The first part of the single ground of appeal The applicant’s arguments 25 By the first part of his single ground of appeal, in essence, [OSCURATO:PERSONA] complains that the [OSCURATO:PERSONA] held, in paragraphs 37 and 38 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal assessed the distinctive character of the mark at issue as a whole, despite the fact that it is clear from the contested decision that it merely examined the distinctive character of each of the two elements of which it is composed. 26 In that regard, [OSCURATO:PERSONA] submits that, although the mark at issue is formed of a combination of elements, each of which may be considered devoid of distinctive character, that fact is not sufficient for the view to be taken that the sign as a whole is devoid of distinctive character, since a correct assessment of the distinctive character ought to take into consideration the manner in which the various elements are combined. 27 In the present case, the combination of elements forming the mark at issue, namely a goblet and a cardboard envelope, creates, in the view of [OSCURATO:PERSONA], a true distinctive character and cannot be regarded as common in the sector concerned. Findings of the [OSCURATO:PERSONA] 28 In so far as it alleges that the [OSCURATO:PERSONA], in paragraphs 37 and 38 of the judgment under appeal, held that the [OSCURATO:PERSONA] of Appeal assessed the distinctive character of the mark at issue as a whole, while it is clear from the contested decision that that is not the case, the first part of the single ground for appeal must be rejected as manifestly unfounded. 29 In fact, in paragraphs 41 to 45 of the contested decision, the [OSCURATO:PERSONA] of Appeal, as the [OSCURATO:PERSONA] rightly noted in paragraph 37 of the judgment under appeal, carried out an analysis of the overall impression produced by the shape of the packaging registered under the mark at issue. Thus, the [OSCURATO:PERSONA] of Appeal took the view, in paragraph 41 of the contested decision, that the features of the mark at issue were not sufficient to make it an unusual design on the market for desserts, ice creams, sorbets and yoghurts that could clearly be recognised as different from the forms available. [OSCURATO:PERSONA] then held, in paragraph 43 of the contested decision, that the examples provided by [OSCURATO:SOCIETA] showed certain shapes of packaging that were very similar to the shape of the contested mark. Finally, in paragraph 44 of the contested decision, the [OSCURATO:PERSONA] took the view that the use of two containers held together by cardboard packaging was one of the most common ways of presenting the products to consumers. [OSCURATO:PERSONA] of Appeal concluded, in paragraph 45 of the contested decision, that, taken as a whole, the mark at issue closely resembled the shapes that the goods in question were most likely to take and that, consequently, it had to be regarded as being devoid of any distinctive character. 30 Accordingly, the [OSCURATO:PERSONA] was able, without erring in law, to conclude, in paragraph 38 of the judgment under appeal, that [OSCURATO:PERSONA] cannot argue that the [OSCURATO:PERSONA] of Appeal did not carry out an overall assessment of the distinctive character of the mark at issue, that it did not take account of its characteristics, and that it found merely that the sum of each of the elements of the mark at issue lacked distinctive character. 31 Furthermore, in so far as [OSCURATO:PERSONA] argues that the combination of the elements forming the mark at issue gives it distinctive character, it must be noted that that analysis falls within the scope of a factual assessment. 32 In that regard, it is necessary to recall 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 does not, save where the facts or evidence are distorted, constitute a point of law which, as such, is open to review by the [OSCURATO:PERSONA] of Justice on appeal (judgment in Voss of Norway v OHIM , C‑445/13 P, EU:C:2015:303, paragraph 97). 33 [OSCURATO:PERSONA] has not put forward any argument in support of that assertion that shows that the [OSCURATO:PERSONA] distorted the evidence. 34 Having regard to the foregoing considerations, the first part of the single ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded. The second part of the single ground of appeal Arguments of the applicant 35 By the second part of his single ground of appeal, in essence, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] of Appeal and the [OSCURATO:PERSONA] wrongly defined the standard model and customs of the sector in question in that they failed to determine the types of packaging widely used in that sector. 36 According to [OSCURATO:PERSONA], that incorrect approach led the [OSCURATO:PERSONA] of Appeal to conclude, wrongly, that the mark at issue is not very different from the standard model and customs of that sector. Findings of the [OSCURATO:PERSONA] 37 According to the settled case-law of the [OSCURATO:PERSONA] of Justice, it follows from [OSCURATO:PERSONA] 256 TFEU, the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice and [OSCURATO:PERSONA] 69(2) of the Rules of Procedure that 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 the appeal (see, inter alia, order in [OSCURATO:PERSONA] v OHIM , C‑521/13 P, EU:C:2014:2222, paragraph 27). 38 [OSCURATO:PERSONA] requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the [OSCURATO:PERSONA]. In reality, such an appeal amounts to no more than a request for a re-examination of the application submitted to the [OSCURATO:PERSONA], a matter which falls outside the jurisdiction of the [OSCURATO:PERSONA] of Justice (order in [OSCURATO:PERSONA] v OHIM , C‑521/13 P, EU:C:2014:2222, paragraph 28). 39 Furthermore, arguments in an appeal which criticise the decision whose annulment was applied for before the [OSCURATO:PERSONA], rather than the judgment delivered by the [OSCURATO:PERSONA] following that application for annulment, are inadmissible (order in [OSCURATO:PERSONA] v OHIM , C‑521/13 P, EU:C:2014:2222, paragraph 29). 40 In the present case, by the second part of the single ground of appeal, [OSCURATO:PERSONA] criticises the contested decision and asks the [OSCURATO:PERSONA] of Justice, in essence, to rule afresh on certain aspects of the dispute, without claiming any error of law vitiating the assessments made by the [OSCURATO:PERSONA]. 41 Accordingly, it is appropriate to reject the second part of the single ground of appeal as manifestly inadmissible and, thus, to dismiss the appeal as a whole. Costs 42 [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. 43 Since the present order has been adopted before the appeal was notified to OHIM, and therefore before the latter could have incurred costs, it is appropriate to decide that [OSCURATO:PERSONA] is to bear his own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] shall bear his own costs. [Signatures] * Language of the case: English.