Corte di giustizia UE n. 579/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 11 July 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — Invalidity proceedings — Word mark DEVIN — Declaration of invalidity) [OSCURATO:PERSONA] C‑800/18 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 19 December 2018, [OSCURATO:PERSONA] of Commerce and Industry, established in [OSCURATO:PERSONA] (Bulgaria), represented by I. Pakidanska and D. Dimitrova, advokati, appellant, the other parties to the proceedings being: Devin AD, established in Devin (Bulgaria), represented by B. [OSCURATO:PERSONA], avocat, applicant at first instance, [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of K. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], D. Šváby and S. Rodin (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: 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 [OSCURATO:PERSONA] of Procedure, makes the following [OSCURATO:PERSONA] 1 By its appeal, the [OSCURATO:PERSONA] of Commerce and Industry (Bulgaria) seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 25 October 2018, Devin v EUIPO — [OSCURATO:PERSONA] (DEVIN) (T‑122/17, EU:T:2018:719) (‘the judgment under appeal’), by which that court upheld in part the action brought by Devin AD against the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO), of 2 December 2016 ([OSCURATO:PERSONA] R 579/2016-2), relating to invalidity proceedings between Devin and the [OSCURATO:PERSONA] of Commerce and Industry (‘the contested decision’). 2 In support of its appeal, the appellant puts forward a sole ground of appeal, which has five parts to it and which alleges infringement of [OSCURATO:PERSONA] 52(1)(a) 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 3 Pursuant to [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] 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 that appeal in whole or in part. 4 It is appropriate to apply that provision in the present case. 5 On 11 May 2019, the [OSCURATO:PERSONA] adopted the following position: ‘1.      [OSCURATO:PERSONA] of Commerce and Industry has appealed against the judgment under appeal. That judgment partially upheld the action brought by Devin against the contested decision, relating to invalidity proceedings regarding the [OSCURATO:PERSONA] trade mark “DEVIN”, registered for goods in Class 32 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended (“the contested mark”). 2.      By the contested decision, the [OSCURATO:PERSONA] of Appeal upheld the decision of the [OSCURATO:PERSONA] of EUIPO to accept a request for a declaration of invalidity of that mark based on [OSCURATO:PERSONA] 7(1)(c) of [OSCURATO:PERSONA] 207/2009 (replaced by [OSCURATO:PERSONA] (EU) 2017/1001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 14 June 2017 on the [OSCURATO:PERSONA] trade mark (OJ 2017 L 154, p.1)). It considered that the contested mark was descriptive on the grounds that the Bulgarian town of Devin was known to the general public in Bulgaria and a significant part of consumers in neighbouring countries such as Greece and Romania, especially as a famous spa town; and that the name of that town was linked by the relevant public with the category of goods falling within Class 32 and covered by the contested mark, especially mineral waters. 3.      Devin brought an action before the [OSCURATO:PERSONA] seeking, inter alia, annulment of the contested decision. [OSCURATO:PERSONA] upheld the first part of the first plea raised before it and found, in paragraph 92 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal had failed to establish a sufficient degree of recognition of the town of Devin by the average [OSCURATO:PERSONA] consumer, in particular Greek or Romanian consumers, enabling it to be found that the average consumer would associate the word “devin” with a town in Bulgaria. It went on to uphold that head of claim and annulled the contested decision without examining the other arguments put forward. 4.      I refer the [OSCURATO:PERSONA] to the judgment under appeal for further details. 5.      The appellant asks the [OSCURATO:PERSONA] to set aside the judgment under appeal and to order Devin to pay the costs. In support of its appeal, it puts forward a sole ground, in which it claims that the [OSCURATO:PERSONA] erred in finding that the contested mark was not descriptive of the geographical origin of the goods in Class 32 of the [OSCURATO:PERSONA] which that mark is intended to cover. There are five parts to that sole ground of appeal. 6.      By the first part of the sole ground of appeal, the appellant claims that the [OSCURATO:PERSONA], when it assessed whether the [OSCURATO:PERSONA] of Appeal had committed an error of law in finding that the mark at issue was descriptive having regard to the degree of recognition by the relevant public of the term “devin” as a geographical name, required a significantly higher level of familiarity with that term among the relevant public for the application of [OSCURATO:PERSONA] 7(1)(c) of [OSCURATO:PERSONA] 207/2009 than that defined by the settled case-law. 7.      That argument is, in my view, based on an erroneous reading of the judgment under appeal. In paragraph 48 of that judgment, the [OSCURATO:PERSONA] found that the [OSCURATO:PERSONA] of Appeal had erred in the definition of the relevant public, in that it had failed to take into account the entire relevant public, consisting of “the average consumer of the [OSCURATO:PERSONA], in particular from Greece and Romania” and that it had instead focused on only one section of that public, namely “foreign tourists visiting Bulgaria or Devin”. [OSCURATO:PERSONA], having correctly taken into consideration all the relevant public, held, having regard to the case-law cited in paragraph 18 of the judgment under appeal and which the appellant does not contest, that the [OSCURATO:PERSONA] of Appeal had applied “a wrong test” which led it to an incorrect factual assessment of the perception of the word “devin” by the relevant public. In paragraph 94 of that judgment, the [OSCURATO:PERSONA] stated in this connection that “the part of the relevant public that knows that name as a geographical place represents only a very small and negligible minority of one or a few percent at most”. [OSCURATO:PERSONA] did not therefore err in law by thus defining the relevant public for the purposes of assessing the degree of recognition of the town of Devin by the average consumer of the [OSCURATO:PERSONA]. Accordingly, the first part of the sole ground of appeal is, in my view, manifestly unfounded. 8.      By the second part of the sole ground of appeal, the appellant alleges that the [OSCURATO:PERSONA] (i) erred in law by considering all of the elements of fact and evidence separately; (ii) wrongly drew a distinction between the perception of the contested mark by the relevant public in Romania and Greece, on the one hand, and the perception of that mark by the consumers in all other [OSCURATO:PERSONA], on the other hand; and, in the light of the evidence (including decisions of national authorities in the [OSCURATO:PERSONA]), erred in its assessment of the knowledge of the town Devin by the relevant public outside Bulgaria; and, lastly, (iii) failed to take into account in its assessment of the perception by the relevant public of the term “devin” as referring to a geographical place in Bulgaria either the category of goods concerned or the characteristics of the place designated by the name Devin. 9.      I consider that the second part of the sole ground of appeal is manifestly inadmissible in part and manifestly unfounded in part. 10.      The appellant advances no legal or substantive basis for its assertion that all elements of fact and evidence must be assessed in their integrity. Its argument in that regard is unsubstantiated. In reality, by its arguments in support of that aspect of the second part of the sole ground of appeal, it seeks to obtain a re-examination of the findings and assessments made by the [OSCURATO:PERSONA] as to the facts and evidence. Since the appellant does not claim that the [OSCURATO:PERSONA] distorted the facts, this aspect of the second part of the sole ground of appeal is manifestly inadmissible (see, inter alia, judgment of 9 October 2014, ICF v Commission , C‑467/13 P, not published, EU:C:2014:2274, paragraph 26 and the case-law cited). The appellant’s reliance on national decisions is moreover not a relevant criterion for the purposes of the [OSCURATO:PERSONA] appreciation. It is settled case law that the EU trade mark regime is an autonomous system and that it applies independently of any national system (see judgment of 12 December 2013, [OSCURATO:PERSONA] v OHIM , C‑445/12 P, EU:C:2013:826, paragraphs 48 and 49 and the case-law cited). That aspect of the second part of the sole ground of appeal is therefore manifestly unfounded. 11.      By the third part of the sole ground of appeal, the appellant claims that the [OSCURATO:PERSONA] incorrectly held, in paragraph 66 of the judgment under appeal that “the [OSCURATO:PERSONA] assertion that the geographical name Devin, in the future, would potentially be understood by the public in the [OSCURATO:PERSONA] as a description of the geographical origin of the relevant goods, ... [was] not supported by the facts of the case and [was] a mere hypothesis”. It considers that a number of evidential and factual elements should have led that court to adopt the contrary view. However, since the appellant does not claim that the [OSCURATO:PERSONA] distorted the facts, this part of the appellant’s argument does not constitute a point of law and is not therefore subject upon appeal to review by the [OSCURATO:PERSONA] of Justice (see the case-law cited in point 10 above). It is accordingly manifestly inadmissible. 12.      By the fourth part of the sole ground of appeal, the appellant contends that the [OSCURATO:PERSONA] erred in law in concluding that the general interest in preserving the availability of a geographical name such as that of the spa town of Devin can be protected without requiring the cancellation of the contested mark. The appellant claims that the legal provisions in relation to the limitation of the exclusive right of a trade mark proprietor, namely [OSCURATO:PERSONA] 9(2)(c) and [OSCURATO:PERSONA] 12(1)(b) of [OSCURATO:PERSONA] 207/2009, are not applicable to the case at hand. 13.      In my view, that argument is manifestly unfounded. 14.      The findings reached by the [OSCURATO:PERSONA] in paragraphs 75 to 80 of the judgment under appeal do not detract from its finding in paragraph 67 of that judgment that the word “Devin” is not recognised as a designation of geographical origin by the average consumer in [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] other than the Republic of Bulgaria. [OSCURATO:PERSONA] made clear in paragraph 80 of the judgment under appeal that its [OSCURATO:PERSONA] 12(1)(b) assessment was a “legislative and jurisprudential reminder” which “[did] not amount to advocating a minimum control of the grounds for refusal in [OSCURATO:PERSONA] 7 of [OSCURATO:PERSONA] 207/2009 …”. [OSCURATO:PERSONA] also stated in paragraph 92 of the judgment under appeal that it held that the [OSCURATO:PERSONA] of Appeal had not established the existence of a sufficient degree of recognition of the town of Devin by the average [OSCURATO:PERSONA] consumer “in view of the above considerations, in particular paragraphs 32 to 67” of that judgment. The argument that the appellant advances by the fourth part of the sole ground of appeal is therefore based on a misreading of the judgment under appeal. While the appellant also contends, under the fourth part of the sole ground of appeal, that the [OSCURATO:PERSONA] wrongly found, in paragraphs 79 and 89 of the judgment under appeal, that the award of the contested mark acted as an impediment to other companies, that argument is not, subject to there being a distortion of the evidence — which is not claimed in the present case — susceptible to review by the [OSCURATO:PERSONA] of Justice. It is accordingly manifestly inadmissible. 15.      Accordingly, the fourth part of the sole ground of appeal is partly manifestly inadmissible and partly manifestly unfounded. 16.      In the fifth part of the sole ground of appeal, the appellant maintains that by finding in paragraphs 93 and 94 of the judgment under appeal that the percentage of the part of the relevant public that knew the name “Devin” as a geographical place appeared, prima facie, inferior to that of the part of the relevant public that knew Devin as a mineral water trade mark, the [OSCURATO:PERSONA] recognised a certain degree of distinctiveness of the contested trade mark without, however, supporting its assessment by arguments in that regard. The appellant submits that that arbitrary assessment calls into question the objectivity of the [OSCURATO:PERSONA]. 17.      The appellant however has not adduced any probative evidence in support of its arguments alleging of a lack of objectivity on the part of the [OSCURATO:PERSONA]. It follows that the fifth part of the sole ground of appeal is manifestly unfounded. The findings of the [OSCURATO:PERSONA] in paragraphs 32 to 67 of the judgment under appeal, on which its conclusion is based, would in any event remain unaffected. 18.      I therefore conclude that the five parts of the sole ground of appeal are, variously, manifestly inadmissible, manifestly unfounded or partly manifestly inadmissible and partly manifestly unfounded. I therefore recommend that the [OSCURATO:PERSONA] should dismiss the appeal under [OSCURATO:PERSONA] 181 of its [OSCURATO:PERSONA] of Procedure. 19.      [OSCURATO:PERSONA] 137 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], which applies to appeals by virtue of [OSCURATO:PERSONA] 184(1) thereof, the order terminating a case should also rule on the costs. Since present appeal has not been notified to the defendant, the latter has not incurred costs in connection with the appeal. The appellant should therefore bear its own costs.’ 6 For the same reasons as those given by the [OSCURATO:PERSONA], the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded. Costs 7 [OSCURATO:PERSONA] 137 of the [OSCURATO:PERSONA] of Procedure, applicable to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since in this case the present order has been adopted before the appeal was served on the other parties and, consequently, before those parties could have incurred costs, it must be held that the appellant is to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed as in part manifestly inadmissible and in part manifestly unfounded. 2. [OSCURATO:PERSONA] of Commerce and Industry shall bear its own costs. Luxembourg, 11 July 2019. A. [OSCURATO:PERSONA] K. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.