Corte di giustizia UE n. 1477/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 15 January 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure — EU trade mark — Opposition proceedings — Figurative mark in black and white containing the word elements ‘lion’s head global partners’ — Rejection in part of the application for registration — Dismissal of the appeal) [OSCURATO:PERSONA] C‑554/18 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 24 August 2018, [OSCURATO:PERSONA] LLP, established in London ([OSCURATO:PERSONA]), represented by R. Nöske, Rechtsanwalt, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] LLP, established in London ([OSCURATO:PERSONA]), intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of F. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], C.G. Fernlund and L.S. Rossi (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: M. [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 [OSCURATO:PERSONA] of Procedure, makes the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:PERSONA] LLP seeks to have set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 14 June 2018, [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] ([OSCURATO:PERSONA] [OSCURATO:PERSONA] global partners) (T‑310/17, not published, EU:T:2018:344; ‘the judgment under appeal’), by which it dismissed [OSCURATO:PERSONA]’ action against the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 28 February 2017 ([OSCURATO:PERSONA] R 1477/2016-4) relating to opposition proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA], by which the [OSCURATO:PERSONA] of Appeal held that there was a likelihood of confusion, within the meaning 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), inter alia as a result of, first, the at least average degree of similarity between the earlier EU word mark [OSCURATO:PERSONA], registered on 16 March 2006 by [OSCURATO:PERSONA], and the EU figurative mark [OSCURATO:PERSONA], the registration of which was notified to EUIPO by [OSCURATO:PERSONA] on 9 April 2009 (‘the mark applied for’) and, second, the identity of the services covered by those marks. 2 In support of its appeal, the appellant raises a single ground of appeal, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. The appeal 3 [OSCURATO:PERSONA] 181 of its [OSCURATO:PERSONA] 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. 4 That provision must be applied in the present case. 5 On 19 November 2018, the [OSCURATO:PERSONA] took the following position: ‘1.      I propose that the [OSCURATO:PERSONA] should dismiss the appeal in the present case as being, in part, manifestly inadmissible and, in part, manifestly unfounded, and order the appellant to bear its own costs in accordance with [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], for the following reasons. 2.      By the first part of the single ground of appeal, the appellant appears to challenge the entirety of the analysis undertaken by the [OSCURATO:PERSONA] in the judgment under appeal, which is summarised mainly in paragraphs 27, 45 and 46 of that judgment. According to the appellant, the [OSCURATO:PERSONA] should have held, (i) that none of the elements of the sign forming the mark applied for is dominant, (ii) that there are no visual, phonetic or conceptual similarities between the marks at issue, inter alia because, contrary to the view taken by the [OSCURATO:PERSONA], the public does not pay greater attention to the beginning of a word element where the mark is perceived as a unit, as is the mark applied for, and, lastly, (iii) that there is no likelihood of confusion between the marks at issue. 3.      It must be held that, by those arguments, the appellant seeks to call into question factual assessments. The effect of [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] is that an appeal lies on points of law only and the appraisal of the facts by the [OSCURATO:PERSONA] does not, save where they are distorted, constitute a point of law which is subject, as such, to review by the [OSCURATO:PERSONA] of Justice on appeal (orders of 5 February 2010, Mergel and Others v OHIM , C‑80/09 P, not published, EU:C:2010:62, paragraph 25, and of 4 March 2010, Kaul v OHIM , C‑193/09 P, not published, EU:C:2010:121, paragraph 75). 4.      More specifically, first, it is settled case-law that contesting the identification of dominant elements of a sign raises a question of fact, not of law (see, to that effect, order of 29 November 2012, Hrbek v OHIM , C‑42/12 P, not published, EU:C:2012:765, paragraph 65, and judgment of 2 March 2017, Panrico v EUIPO , C‑655/15 P, not published, EU:C:2017:155, paragraph 68). 5.      Second, so far as concerns the argument by which the appellant challenges the view of the [OSCURATO:PERSONA] as regards the existence of visual, phonetic and conceptual similarities between the marks at issue, the appellant merely calls into question the factual assessment made by the [OSCURATO:PERSONA], which is not subject to review by the [OSCURATO:PERSONA] of Justice (see, by analogy, order of 16 February 2017, [OSCURATO:PERSONA] v EUIPO , C‑501/16 P, not published, EU:C:2017:140, paragraphs 5 and 6). 6.      Lastly, third, the same is true as regards the argument concerning the likelihood of confusion between the marks at issue, as formulated by the appellant in the context of the first part of the single ground of appeal. It is important to note, in that regard, that by its line of argument, the appellant does not criticise the [OSCURATO:PERSONA] for having erred in law by failing to take account of the legal principles applicable to the assessment of the likelihood of confusion. The appellant’s argument refers exclusively to factual assessments of the likelihood of confusion based on the [OSCURATO:PERSONA] findings as to the existence of similarity between the marks at issue. 7.      Since the appellant has not alleged distortion of the facts under the first part of the single ground of appeal, that part is manifestly inadmissible. 8.      By the second part of the single ground of appeal, the appellant criticises the [OSCURATO:PERSONA] for not having taken sufficient account of its argument that the mark applied for should be considered as a whole, as a single overall term. The appellant states, highlighting the word elements “lion’s head” of that mark, that that argument relates to the fact that the [OSCURATO:PERSONA] failed to clarify that neither of those elements is dominant, that they are therefore equivalent and that those elements, taken together, form one whole term. 9.      Given that the criticism of the judgment under appeal concerning the assessment of the mark applied for is the subject of the first part of the single plea in law, analysed above, I take the view that, by the second part, the appellant asks the [OSCURATO:PERSONA] of Justice to verify whether the [OSCURATO:PERSONA] examined the information put before it in a manner consonant with the legal requirements governing the reasons stated for its judgments. 10.      In that regard I note that the obligation to state reasons owed by the [OSCURATO:PERSONA] requires it to disclose its reasoning clearly and unequivocally so that the persons concerned can ascertain the reasons for the decision taken and the [OSCURATO:PERSONA] of Justice can exercise its power of review (judgment of 25 July 2018, QuaMa [OSCURATO:PERSONA] v EUIPO , C‑139/17 P, not published, EU:C:2018:608, paragraph 59). 11.      In the light of those clarifications, it must be held that the criticism of the judgment under appeal, alleging failure to observe the obligation to state reasons, is unfounded, since the judgment under appeal sets out in detail the [OSCURATO:PERSONA] reasons for finding, first that the word elements of the sign are dominant and, second, that there is a similarity between the marks at issue, particularly because, visually, a certain degree of similarity is caused by the identity of the first part of those marks in the overall impression created by them. 12.      Following the case-law cited in paragraph 24 of the judgment under appeal, the [OSCURATO:PERSONA] held, in paragraph 25 of that judgment, that the word elements “lion’s head” had a more distinctive character than the figurative element. [OSCURATO:PERSONA] then held, in paragraph 27 of the judgment under appeal, that those word elements, given their distinctive character, their size and their central position in the mark applied for, were dominant. 13.      Moreover, as regards the equivalence of the word elements of the mark applied for “lion’s head”, the [OSCURATO:PERSONA] — having referred, in paragraph 32 of the judgment under appeal, to the case-law according to which consumers generally pay greater attention to the beginning of a mark than to the end and the word placed at the beginning of the sign is likely to have a greater impact than the rest of the sign — noted, inter alia, in paragraphs 34 to 37 of that judgment, that that case-law states just one of the criteria for assessing the similarity of the marks at issue and, in any event, cannot call into question the principle that the examination of the similarity of particular trade marks must take into account the overall impression created by them. 14.      Accordingly, the second part of the single ground of appeal must be rejected as clearly unfounded. 15.      In the light of the foregoing, I take the view that the single ground of appeal should be rejected and, accordingly, the appeal should be dismissed in its entirety. 16.      Therefore, I propose that the [OSCURATO:PERSONA] dismiss the appeal, in accordance with [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure, as, in part, manifestly inadmissible and, in part, manifestly unfounded, and that the appellant be ordered to bear its own costs.’ 6 For the same reasons as those given by the [OSCURATO:PERSONA], the appeal must be dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded. Costs 7 Pursuant to [OSCURATO:PERSONA] 137 of the [OSCURATO:PERSONA] of Procedure, which is applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide 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] LLP shall bear its own costs. Luxembourg, 15 January 2019. A. [OSCURATO:PERSONA] F. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.