Corte di giustizia UE n. 193/2015

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 12 February 2015 ( * ) (Appeals — Community trade mark — Figurative mark in colour including the word element ‘ARIS’ — [OSCURATO:PERSONA] by the proprietor of the Community figurative mark in red and blue including the word elements ‘[OSCURATO:PERSONA] S.A.’ — Refusal of registration) [OSCURATO:PERSONA] C‑370/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 29 July 2014, [OSCURATO:PERSONA], established in Hamilton, Bermuda ([OSCURATO:PERSONA]), represented by F. Petillion and J. Janssen, advocaten, 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] SA, established in Luxembourg (Luxembourg), intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of K. Jürimäe, President of the [OSCURATO:PERSONA], M. Safjan (Rapporteur) and A. Prechal, Judges, [OSCURATO:PERSONA]: M. Szpunar, Registrar: A. [OSCURATO:PERSONA], having regard to the decision taken, 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 its appeal, [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’) asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] (ARIS) , T‑247/12, EU:T:2014:258 (‘the judgment under appeal’), by which that [OSCURATO:PERSONA] 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 9 March 2012 ([OSCURATO:PERSONA] R 193/2011-2) relating to opposition proceedings between [OSCURATO:PERSONA] SA and [OSCURATO:PERSONA] (‘the contested decision’). Legal context 2 [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) provides: ‘1.      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 3 On 13 November 2008, [OSCURATO:PERSONA] and [OSCURATO:PERSONA]. (‘[OSCURATO:PERSONA] and [OSCURATO:PERSONA]’) filed an application for registration of a Community trade mark with OHIM. 4 Registration as a mark was sought for the following figurative sign: 5 The services in respect of which registration was sought are in Class 36 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and [OSCURATO:PERSONA] for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended, and correspond to the following description: ‘[OSCURATO:PERSONA] services; writing title insurance for fine art, cultural artifacts [sic], antiquities, and other collectable tangible personal property; financial risk management services for the art and art-associated industries, including art museums, art foundations, cultural and non-profit institutions, private collectors, artists, art dealers, and art-associated banking, fiduciary, insurance, legal, and non-profit providers; financial risk management services in relation to other forms of insurance, including property and casualty insurance for the art and art-associated industries’. 6 [OSCURATO:PERSONA] and [OSCURATO:PERSONA] was already the proprietor of the Community word mark ARIS, registered on 12 September 2005. 7 On 18 June 2009, [OSCURATO:PERSONA] SA filed a notice of opposition, pursuant to [OSCURATO:PERSONA] 41 of [OSCURATO:PERSONA] 207/2009, to registration of the mark at issue in respect of the services referred to in paragraph 5 of this order. 8 That opposition was based on the earlier Community figurative mark reproduced below, which was filed on 8 July 1996 and registered on 18 January 2000 under the number 307470 in respect of ‘insurance and reinsurance’ in Class 36 of the [OSCURATO:PERSONA]: 9 The ground relied on in support of that opposition was that set out in [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. 10 By decision of 23 November 2010, the [OSCURATO:PERSONA] of OHIM upheld the opposition brought by [OSCURATO:PERSONA] SA and rejected the application for registration of the mark at issue. 11 On 20 January 2011, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] filed a notice of appeal against that decision with the [OSCURATO:PERSONA] of Appeal of OHIM, pursuant to Articles 58 to 64 of [OSCURATO:PERSONA] 207/2009. 12 On 3 March 2011, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] applied for the transfer of its trade mark application to [OSCURATO:PERSONA]. The transfer was entered in the Register of Community trade marks on 4 March 2011. 13 By the contested decision, the [OSCURATO:PERSONA] of Appeal of OHIM dismissed the appeal. It reached the same conclusion as the [OSCURATO:PERSONA], finding that there was a likelihood of confusion and rejecting the contention that the two signs in question had coexisted in the [OSCURATO:PERSONA]. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 14 On 6 June 2012, [OSCURATO:PERSONA] brought an action for annulment of the contested decision before the [OSCURATO:PERSONA]. In support of that action, it put forward four pleas in law alleging, in essence, 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. 16 [OSCURATO:PERSONA] first of all held, in paragraph 31 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal of OHIM had not erred in its definition of the relevant public in the circumstances and nor had it erred as regards the public that it took into consideration when assessing the likelihood of confusion. 17 Next, the [OSCURATO:PERSONA] held, in paragraph 52 of the judgment under appeal, that [OSCURATO:PERSONA] had failed to establish that the [OSCURATO:PERSONA] of Appeal of OHIM was wrong to find, in the contested decision, that the signs at issue were similar. In that regard, the [OSCURATO:PERSONA] inter alia stated, in paragraph 41 of that judgment, that that [OSCURATO:PERSONA] of Appeal had not erred in its determination of the dominant components of the signs at issue and, in paragraphs 46 and 47 of that judgment, that the [OSCURATO:PERSONA] of Appeal had carried out an overall assessment of the signs at issue when assessing the phonetic and conceptual similarity of those signs. 18 Lastly, the [OSCURATO:PERSONA] held, in paragraph 60 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal of OHIM had been right to conclude that there was a likelihood of confusion and to dismiss the appeal against the decision of the [OSCURATO:PERSONA] of OHIM. Form of order sought on appeal 19 By its appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should, first, set aside the judgment under appeal, secondly, annul the contested decision and the decision of the [OSCURATO:PERSONA] of OHIM of 23 November 2010 or, in the alternative, remit the case to the [OSCURATO:PERSONA] and, thirdly, order OHIM to pay the costs. The appeal 20 [OSCURATO:PERSONA] 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] of Justice 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. 21 It is appropriate to apply that provision to the present case. 22 In support of its appeal, [OSCURATO:PERSONA] puts forward a single ground of appeal alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009, which is divided into five parts. The first part of the single ground of appeal 23 The first part of the single ground of appeal is based on the allegedly incorrect application of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 on account of a misinterpretation of the judgment in [OSCURATO:PERSONA] v OHIM — Sadia ([OSCURATO:PERSONA]) , T‑31/03, EU:T:2005:169. [OSCURATO:PERSONA] submits that, a correct interpretation of that judgment requires account to be taken of the coexistence on the market of the Community word mark ARIS, registered on 12 September 2005, and the earlier Community figurative mark [OSCURATO:PERSONA] S.A. in the course of the global assessment of the likelihood of confusion. According to [OSCURATO:PERSONA], that word mark is identical to the figurative mark ARIS and there is no valid reason for not having taken it into account. 24 In that regard, it must be borne in mind that, in accordance with [OSCURATO:PERSONA] 256 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] thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, 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 [OSCURATO:PERSONA] v OHIM , C‑649/11 P, EU:C:2012:603, paragraph 39). 25 In paragraph 57 of the judgment under appeal, the [OSCURATO:PERSONA] simply reproduced, word for word, the finding in paragraph 86 of the judgment in [OSCURATO:PERSONA] v OHIM — Sadia ([OSCURATO:PERSONA]) , EU:T:2005:169, without in any way interpreting it. [OSCURATO:PERSONA] is thus, in reality, disputing the appraisal of the facts which the [OSCURATO:PERSONA] carried out in the light of that finding. 26 It is apparent from a reading of paragraphs 53 to 60 of the judgment under appeal that the [OSCURATO:PERSONA] carried out, in the light of the relevant case-law, an overall assessment of the likelihood of confusion and an analysis relating to the coexistence of the earlier marks on the market. Given that the conclusion which the [OSCURATO:PERSONA] reached, in the light of the evidence which it had, is part of the appraisal of the facts and, consequently, falls outside of the jurisdiction of the [OSCURATO:PERSONA] of Justice in an appeal (see orders in [OSCURATO:PERSONA] v OHIM , C‑448/09 P, EU:C:2010:384, paragraph 80, and Yorma’s v OHIM , C‑191/11 P, EU:C:2012:62, paragraph 53), it is necessary to reject as manifestly inadmissible the first part of the single ground of appeal, which, in essence and under the guise of an alleged error of interpretation of an earlier judgment of the [OSCURATO:PERSONA], calls into question that appraisal of the facts. The second part of the single ground of appeal 27 In the context of the second part of the single ground of appeal, [OSCURATO:PERSONA] alleges that the [OSCURATO:PERSONA] infringed the principles of legal certainty and of the protection of legitimate expectations. It submits that, as the figurative mark in respect of which registration is sought is a variant of an already existing word mark, the [OSCURATO:PERSONA] thus failed to have regard to [OSCURATO:PERSONA] legitimate expectation of being able to use its mark in various forms and using various fonts. 28 In that regard, it is, however, sufficient to note at the outset that, as is apparent from settled case-law, to allow a party to put forward for the first time before the [OSCURATO:PERSONA] of Justice a plea in law which it has not raised before the [OSCURATO:PERSONA] would mean allowing that party to bring before the [OSCURATO:PERSONA], whose jurisdiction in appeals is limited, a wider case than that heard by the [OSCURATO:PERSONA]. In an appeal the [OSCURATO:PERSONA]’s jurisdiction is thus confined to examining the assessment by the [OSCURATO:PERSONA] of the pleas argued before it (see, inter alia, judgment in [OSCURATO:PERSONA] and Others v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 165). 29 It must be stated that, before the [OSCURATO:PERSONA], [OSCURATO:PERSONA] did not claim that failure to take into account the alleged coexistence of the marks would, in the circumstances of this case, result in infringement of the principles of legal certainty and of the protection of legitimate expectations (see, by analogy, [OSCURATO:PERSONA] and Others v Commission , EU:C:2005:408, paragraph 166). 30 Consequently, the second part of the single ground of appeal must be rejected as manifestly inadmissible. The third part of the single ground of appeal 31 By the third part of the single ground of appeal, [OSCURATO:PERSONA] submits that the judgment under appeal unjustifiably limits the harmonious development of economic activities throughout the [OSCURATO:PERSONA]. In that respect, [OSCURATO:PERSONA] refers to the American law principle called ‘Morehouse defense’ to the effect that the relevant public cannot be confused by a mark in respect of which registration has been applied for if the trade mark applicant has already previously registered a substantially similar mark which has not been challenged by the opponent. 32 As is apparent from [OSCURATO:PERSONA] 256 TFEU and the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice and from Articles 168(1)(d) and 169(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside as well as the legal arguments specifically advanced in support of the appeal (see judgment in Acino v Commission , C‑269/13 P, EU:C:2014:255, paragraph 35 and the case-law cited, and order in [OSCURATO:PERSONA] v OHIM , C‑676/13 P, EU:C:2014:2080, paragraph 17). 33 That requirement is not satisfied by a ground of appeal which, without even including an argument specifically identifying the error allegedly vitiating the judgment under appeal, merely reproduces arguments previously submitted before the [OSCURATO:PERSONA]. Such a ground of appeal amounts in reality to no more than a request for re-examination of a plea submitted before the [OSCURATO:PERSONA], which the [OSCURATO:PERSONA] of Justice does not have jurisdiction to undertake (see, inter alia, judgments in Eurocermex v OHIM , C‑286/04 P, EU:C:2005:422, paragraph 50, and [OSCURATO:PERSONA] v ECB , C‑401/09 P, EU:C:2011:370, paragraph 55). 34 In the present case, [OSCURATO:PERSONA] confines itself, in criticising the judgment under appeal, to reiterating the arguments submitted at first instance, which seek to establish why the Community trade mark system should favour the registration, by the proprietor of a trade mark, of a similar mark. 35 The fact remains that the [OSCURATO:PERSONA] responded to those arguments in a full and detailed manner in paragraphs 55 to 59 of the judgment under appeal. [OSCURATO:PERSONA] inter alia dwelt, in paragraph 58 of that judgment, on the fact that not only is the registered word mark ARIS different from the figurative marks at issue, but also that the evidence provided by [OSCURATO:PERSONA] concerns only the sign in respect of which registration is applied for and does nothing to indicate the presence of that sign on the [OSCURATO:PERSONA] market; nor does it give any indication of how the relevant public has been exposed to the marks at issue on that market. 36 [OSCURATO:PERSONA] does not, in that regard, claim that there is any distortion of the facts and evidence submitted to the [OSCURATO:PERSONA]. 37 Consequently, the third part of the single ground of appeal must be rejected as manifestly inadmissible. The fourth part of the single ground of appeal 38 In the context of the fourth part of the single ground of appeal, [OSCURATO:PERSONA] complains, in essence, that the [OSCURATO:PERSONA] distorted the facts by upholding, in paragraph 46 of the judgment under appeal, the unfounded assessment of the [OSCURATO:PERSONA] of Appeal of OHIM that the relevant public would not take the elements ‘assurances’ or ‘s.a.’ in the earlier mark into account when comparing the signs at issue. 39 In accordance with the settled case-law of the [OSCURATO:PERSONA] of Justice, a distortion of the facts must be obvious from the documents on the [OSCURATO:PERSONA]’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgments in [OSCURATO:PERSONA] v Commission , C‑551/03 P, EU:C:2006:229, paragraph 54, and Viega v Commission , C‑276/11 P, EU:C:2013:163, paragraph 30). 40 That is demonstrably not true of the assessment referred to in paragraph 38 of the present order, by which the [OSCURATO:PERSONA] did not carry out any distortion which is apparent from the documents on the [OSCURATO:PERSONA]’s file; the fourth part of the ground of appeal in actual fact simply seeks, in the present case, to have the [OSCURATO:PERSONA] of Justice substitute its own appraisal of the facts for that carried out by the [OSCURATO:PERSONA]. 41 The fourth part of the single ground of appeal must therefore be rejected as manifestly unfounded. The fifth part of the single ground of appeal 42 By the fifth part of the single ground of appeal, [OSCURATO:PERSONA] submits that the judgment under appeal is vitiated by a failure to state reasons inasmuch as it is not apparent from that judgment for what reason, other than an erroneous interpretation of the judgment in [OSCURATO:PERSONA] v OHIM — Sadia ([OSCURATO:PERSONA]) , EU:T:2005:169, the coexistence of the word mark ‘ARIS’ should not be taken into account. 43 In that regard, it is sufficient to point out that, as has been stated in paragraph 35 of the present order, the [OSCURATO:PERSONA], first, concluded after a detailed assessment that the registered word mark ARIS is different from the figurative marks at issue and, secondly, held that the evidence provided by [OSCURATO:PERSONA] does nothing to indicate the presence on the [OSCURATO:PERSONA] market of the sign in respect of which registration is sought and fails to give any indication of how the relevant public has been exposed to the marks at issue on that market. 44 In so doing, the [OSCURATO:PERSONA] set out to the requisite legal standard the reasons why it considered that there was no need to take the alleged coexistence of that word mark into account in the present case. 45 The fact that the [OSCURATO:PERSONA] arrived at a different conclusion from the appellant cannot in itself vitiate the judgment under appeal for failure to state reasons (see, to that effect, judgment in Gogos v Commission , C‑583/08 P, EU:C:2010:287, paragraph 35). 46 In view of the foregoing considerations, the fifth part of the single ground of appeal must be rejected as manifestly unfounded. 47 It follows from all of the foregoing that the appeal must be dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded. Costs 48 [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. 49 As the present order has been adopted prior to notification of the appeal to the defendant at first instance and, therefore, before the latter has incurred costs, it is appropriate to decide that the appellant must bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] shall bear its own costs. [Signatures] * Language of the case: English.