Corte di giustizia UE n. 2380/2016

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 6 September 2016 ( * ) (Appeal — EU trade mark — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — Appeal manifestly inadmissible or manifestly unfounded) [OSCURATO:PERSONA] C‑224/14 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 7 May 2014, [OSCURATO:PERSONA] & Co. KG, established in Neckarsulm (Germany), represented by M. Wolter, M. Kefferpütz and A.K. Marx, Rechtsanwälte, appellant, the other party to the proceedings being: [OSCURATO:PERSONA] (EUIPO), represented by L. Rampini, acting as Agent, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. Arabadjiev, President of the [OSCURATO:PERSONA], J.-C. Bonichot and E. Regan (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: P. Mengozzi, 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] & Co. KG asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 27 February 2014 in [OSCURATO:PERSONA] v OHIM — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑226/12, not published, EU:T:2014:98) (‘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 [OSCURATO:PERSONA] (EUIPO) of 21 March 2012 ([OSCURATO:PERSONA] R 2380/2010-1), relating to opposition proceedings between [OSCURATO:PERSONA] spol. s r.o. and [OSCURATO:PERSONA] (‘the contested decision’). Legal context [OSCURATO:PERSONA] (EC) No 207/2009 2 [OSCURATO:PERSONA] 8(1) of [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1) provides: ‘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.’ 3 [OSCURATO:PERSONA] 15 of that regulation, headed ‘Use of EU trade marks’, provides in paragraph 1: ‘If, within a period of five years following registration, the proprietor has not put the EU trade mark to genuine use in the [OSCURATO:PERSONA] in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the EU trade mark shall be subject to the sanctions provided for in this [OSCURATO:PERSONA], unless there are proper reasons for non-use. The following shall also constitute use within the meaning of the first subparagraph: (a)      use of the EU trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered; …’ 4 [OSCURATO:PERSONA] 42(2) and (3) of that regulation provides: ‘2.      If the applicant so requests, the proprietor of an earlier EU trade mark who has given notice of opposition shall furnish proof that, during the period of five years preceding the date of publication of the EU trade mark application, the earlier EU trade mark has been put to genuine use in the [OSCURATO:PERSONA] in connection with the goods or services in respect of which it is registered and which he cites as justification for his opposition, or that there are proper reasons for non-use, provided the earlier EU trade mark has at that date been registered for not less than five years. In the absence of proof to this effect, the opposition shall be rejected. If the earlier EU trade mark has been used in relation to part only of the goods or services for which it is registered it shall, for the purposes of the examination of the opposition, be deemed to be registered in respect only of that part of the goods or services. 3.      Paragraph 2 shall apply to earlier national trade marks referred to in [OSCURATO:PERSONA] 8(2)(a), by substituting use in the [OSCURATO:PERSONA] in which the earlier national trade mark is protected for use in the [OSCURATO:PERSONA].’ 5 Pursuant to [OSCURATO:PERSONA] 166 of [OSCURATO:PERSONA] 207/2009, [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed, but references to the repealed [OSCURATO:PERSONA] are to be construed as references to [OSCURATO:PERSONA] 207/2009. [OSCURATO:PERSONA] 2868/95 6 Entitled ‘Proof of use’, Rule 22 of [OSCURATO:PERSONA] (EC) No 2868/95 of 13 December 1995 implementing [OSCURATO:PERSONA] 40/94 (OJ 1995 L 303, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 1041/2005 of 29 June 2005 (OJ 2005 L 172, p. 4) (‘[OSCURATO:PERSONA] 2868/95’), provides, in paragraphs 3 and 4 thereof: ‘(3)       The indications and evidence for the furnishing of proof of use shall consist of indications concerning the place, time, extent and nature of use of the opposing trade mark for the goods and services in respect of which it is registered and on which the opposition is based, and evidence in support of these indications in accordance with paragraph 4. (4)       The evidence shall be filed in accordance with Rules 79 and 79a and shall, in principle, be confined to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in [OSCURATO:PERSONA] 76(1)(f) of the [OSCURATO:PERSONA].’ Background to the dispute 7 The background to the dispute, as set out by the [OSCURATO:PERSONA] in paragraphs 1 to 15 of the judgment under appeal, may be summarised as follows. 8 On 14 April 2008, [OSCURATO:PERSONA] filed an application for registration of an EU trade mark with EUIPO pursuant to [OSCURATO:PERSONA] 40/94. 9 Registration as a mark was sought for the following figurative sign: 10 On 23 September 2008, [OSCURATO:PERSONA] filed a notice of opposition pursuant to [OSCURATO:PERSONA] 42 of [OSCURATO:PERSONA] 40/94 (corresponding to [OSCURATO:PERSONA] 41 of [OSCURATO:PERSONA] 207/2009) to registration of that mark. 11 The opposition brought was based on, inter alia, the following earlier [OSCURATO:PERSONA] figurative mark (‘the earlier mark’): 12 The grounds relied on in support of that opposition were those set out in [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 40/94 (corresponding to [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009). 13 [OSCURATO:PERSONA] request, [OSCURATO:PERSONA] produced various documents to prove genuine use of the earlier mark, within the meaning of [OSCURATO:PERSONA] 42(2) and (3) of [OSCURATO:PERSONA] 207/2009. 14 By decision of 12 November 2010, the [OSCURATO:PERSONA] of EUIPO upheld that opposition in respect of all of the contested goods, on the basis of the earlier mark. 15 On 30 November 2010, [OSCURATO:PERSONA] filed a notice of appeal with EUIPO against that decision of the [OSCURATO:PERSONA]. 16 On 21 March 2012, the [OSCURATO:PERSONA] of Appeal of EUIPO (‘the [OSCURATO:PERSONA] of Appeal’) adopted the contested decision, by which it dismissed that appeal. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 17 By application lodged at the Registry of the [OSCURATO:PERSONA] on 29 May 2012, [OSCURATO:PERSONA] brought an action seeking the annulment of the contested decision. 18 In support of its action, [OSCURATO:PERSONA] relied on three pleas in law, alleging, in essence, first, infringement of the combined provisions of [OSCURATO:PERSONA] 15(1) and [OSCURATO:PERSONA] 42(2) and (3) of [OSCURATO:PERSONA] 207/2009 and Rule 22(3) and (4) of [OSCURATO:PERSONA] 2868/95, on the ground that the [OSCURATO:PERSONA] of Appeal had erred in finding that there was genuine use for the purposes of those provisions; secondly, infringement of [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 in conjunction with [OSCURATO:PERSONA] 42(2) and (3) of that regulation, on the ground that the [OSCURATO:PERSONA] of Appeal had erred in finding that the use of the earlier mark in a form which differed from the form in which it was registered constituted genuine use for the purposes of [OSCURATO:PERSONA] 15(1) of [OSCURATO:PERSONA] 207/2009; and, thirdly, infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009, on the ground that the [OSCURATO:PERSONA] of Appeal had erred in finding that there was a likelihood of confusion between the marks at issue. 19 By the judgment under appeal, the [OSCURATO:PERSONA] dismissed the action in its entirety. The form of order sought before the [OSCURATO:PERSONA] 20 By its appeal, [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal; –        in the event that the appeal is declared well founded, annul the contested decision, in accordance with [OSCURATO:PERSONA] requested form of order before the [OSCURATO:PERSONA], and –        order EUIPO to pay the costs relating to the proceedings before the [OSCURATO:PERSONA] and before the [OSCURATO:PERSONA]. 21 EUIPO contends that the [OSCURATO:PERSONA] should dismiss the appeal in its entirety and order [OSCURATO:PERSONA] to pay the costs incurred by EUIPO. The appeal 22 [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. 23 It is appropriate to apply that provision to the present case. 24 In support of its appeal, [OSCURATO:PERSONA] puts forward three grounds of appeal. The first ground of appeal, alleging infringement of [OSCURATO:PERSONA] 42(2) and (3) of [OSCURATO:PERSONA] 207/2009 and Rule 22(3) and (4) of [OSCURATO:PERSONA] 2868/95, in conjunction with [OSCURATO:PERSONA] 15(1) of [OSCURATO:PERSONA] 207/2009 25 By its first ground of appeal, the appellant submits that the [OSCURATO:PERSONA] failed to consider that the [OSCURATO:PERSONA] of Appeal based its findings relating to the genuine use of the earlier mark solely on material which, at most, provides only indications regarding the place, time and extent of the use of that mark, but does not furnish solid and objective evidence as to the nature of that use, even if considered together with the other evidence. It maintains that the [OSCURATO:PERSONA] erred in law in holding that the [OSCURATO:PERSONA] of Appeal was right in finding that the invoices and the three undated photographs submitted by [OSCURATO:PERSONA], only two of which photographs show the words ‘[OSCURATO:PERSONA]’, were sufficient to prove genuine use of the earlier mark. It takes the view that, during the proceedings, [OSCURATO:PERSONA] did not demonstrate that those photographs show the earlier mark as it was used on musical instruments in the [OSCURATO:PERSONA] during the relevant period. It submits that that lack of proof cannot be remedied by submitting the photographs together with some invoices, even if those invoices refer to both the relevant period and the relevant place. 26 It must be stated that, by the first ground of appeal, under the pretext of infringement of certain provisions of [OSCURATO:PERSONA] 207/2009 and [OSCURATO:PERSONA] 2868/95, the appellant seeks, in actual fact, as EUIPO correctly points out, to call into question the assessment of the evidence which the [OSCURATO:PERSONA] carried out during its examination of the nature of use of the earlier mark, without alleging that there was any distortion of that evidence. 27 It must be borne in mind that it is apparent from [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] that 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 (judgment of 17 March 2016 in [OSCURATO:PERSONA] v OHIM , C‑252/15 P, not published, EU:C:2016:178, paragraph 59 and the case-law cited). 28 Consequently, the first ground of appeal must be rejected as manifestly inadmissible. The second ground of appeal, alleging infringement of [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 in conjunction with [OSCURATO:PERSONA] 42(2) and (3) of that regulation 29 By its second ground of appeal, the appellant submits that the [OSCURATO:PERSONA] erred in law in holding, in paragraph 53 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal was right in finding that the use of the mark as shown in the photographs was not likely to alter the distinctive character of the earlier mark as registered and therefore met the requirements of genuine use of [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 in conjunction with [OSCURATO:PERSONA] 42(2) and (3) thereof. 30 The appellant maintains that, by proceeding in that manner, the [OSCURATO:PERSONA] failed to consider that [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 is an exception, which must, according to the appellant, be interpreted strictly. It submits that, in principle, [OSCURATO:PERSONA] 42(2) and (3) of that regulation in conjunction with [OSCURATO:PERSONA] 15(1) thereof require the mark cited in opposition to have been used in the form in which it was registered. It takes the view that it is only as an exception that [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 provides that ‘use of the EU trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered’ is, subject to certain conditions, regarded as use within the meaning of [OSCURATO:PERSONA] 15(1) of that regulation. 31 The appellant submits that, consequently, [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 requires an assessment of each element of the earlier mark in the form in which it was registered, with regard to its impact on the distinctive character of that mark. 32 The appellant maintains that the [OSCURATO:PERSONA] disregarded that requirement when it based its findings, in paragraph 52 of the judgment under appeal, on the incorrect assumption that ‘the figurative elements of the earlier mark, as registered, are limited to the stylistic presentation of the two word elements’, given that that mark contains a circle with a stylised ‘L’, which is additional to and separate from the word elements. It submits that by not assessing the impact of that element on the distinctive character of the earlier mark as registered, the [OSCURATO:PERSONA] did not take all the elements of that mark into account. It takes the view that that element is not negligible or secondary in relation to the word elements, but has a relevant influence on the distinctive character of the earlier mark as registered, as a whole. 33 Furthermore, the appellant submits that the letter ‘M’, the representation of which is larger and has dots on its peaks, also has an impact on the distinctive character of the earlier mark as registered. 34 The appellant maintains that it is not disputed that the mark as shown on the photographs submitted does not contain any of those figurative elements of the earlier mark as registered. 35 Lastly, the appellant submits that, as regards composite trademarks, which are made up of word and figurative elements, the absence, in the used form of a mark, of a figurative element that influences the distinctiveness of the mark as registered must lead to an alteration in the overall distinctive character of that mark, even if the word elements appear in the mark as used. Otherwise, the distinctive character of a composite mark as registered would be assessed differently under [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 and under [OSCURATO:PERSONA] 8(1)(b) of that regulation, whereas that regulation requires a consistent assessment of the distinctive character of the earlier mark. 36 EUIPO submits that the second ground of appeal is inadmissible since the appellant seeks to have the [OSCURATO:PERSONA] carry out a new assessment of the facts and evidence. It adds that that ground of appeal is, in any event, manifestly unfounded. 37 In the first place, in so far as the appellant alleges that the [OSCURATO:PERSONA] failed to consider that [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 is an exception, it must be held that that argument must be rejected as manifestly unfounded. 38 [OSCURATO:PERSONA] of all, contrary to what the appellant suggests, it is apparent from paragraphs 42, 46 and 50 to 53 of the judgment under appeal that the [OSCURATO:PERSONA] assessed the argument put forward by [OSCURATO:PERSONA] at first instance — namely, that the figurative elements of the earlier mark in the form in which it was registered could not be classified as negligible, but had the effect of altering the distinctive character of the earlier mark — specifically for the purpose of establishing whether the conditions for the application of [OSCURATO:PERSONA] 15(1) of [OSCURATO:PERSONA] 207/2009 were satisfied or not. 39 Secondly, in paragraph 52 of the judgment under appeal, the [OSCURATO:PERSONA] held, in the context of its definitive assessment of the facts, that the figurative elements of the earlier mark, as registered, were limited to the stylistic presentation of the two word elements. According to that [OSCURATO:PERSONA], those decorative elements did not play any significant role in the overall impression of the sign and had no inherent semantic content of their own which would lend the mark distinctive character or designate the goods concerned. 40 Lastly, the [OSCURATO:PERSONA] concluded, in paragraph 53 of the judgment under appeal that those figurative elements were negligible and were not therefore capable of altering the distinctive character of the earlier mark. 41 Although it is true that, in paragraph 52 of the judgment under appeal, the [OSCURATO:PERSONA] did not specifically list each of the figurative elements referred to in that paragraph, it is nevertheless apparent from an overall reading of paragraphs 42 to 53 of that judgment and, in particular, from paragraphs 42 and 46 thereof, in which the [OSCURATO:PERSONA] referred to the arguments of [OSCURATO:PERSONA] in that connection, that it regarded, implicitly, but necessarily, the circle containing the stylised letter ‘l’ as part of that stylistic presentation of the two word elements in the earlier mark. 42 The fact that the [OSCURATO:PERSONA] assessment, in particular the conclusion that it reached in paragraph 53 of the judgment under appeal, relates to all of the figurative elements of the earlier mark is also apparent from paragraph 76 of that judgment, in which the [OSCURATO:PERSONA] held, inter alia, that the letter ‘l’, surrounded by a circle, constitutes one of the figurative elements of the earlier mark. 43 Moreover, the fact that the [OSCURATO:PERSONA] arrived at a different conclusion from [OSCURATO:PERSONA] as regards the conditions for the application of [OSCURATO:PERSONA] 15(1)(a) of [OSCURATO:PERSONA] 207/2009 does not, in itself, show that that [OSCURATO:PERSONA] erred in law. 44 In the second place, inasmuch as [OSCURATO:PERSONA] seeks to show that the figurative elements of the earlier mark have a decisive influence on the distinctive character of that mark as registered, it is sufficient to state that, by that line of argument, the appellant is seeking, in actual fact, to request that the [OSCURATO:PERSONA] carry out a new assessment of the facts and evidence without, however, showing, or even claiming, that there has been any distortion of those facts and that evidence. That line of argument must therefore be rejected as manifestly inadmissible. 45 It follows that the arguments set out in paragraph 35 of the present order must be rejected on the same grounds since they are based on the unproven premiss that those figurative elements of the earlier mark influence the distinctive character of that mark. 46 Consequently, the second ground of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded. The third ground of appeal, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 47 By its third ground of appeal, the appellant submits that the [OSCURATO:PERSONA] misinterpreted [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 by holding, in paragraph 84 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal was entitled to conclude that there was a likelihood of confusion, within the meaning of that provision, between the marks at issue. It maintains that, although the [OSCURATO:PERSONA] correctly referred, in paragraphs 67, 70 and 71 of the judgment under appeal, to the relevant case-law in that regard, it did not take that case-law into account in its assessment of whether there is a likelihood of confusion in the present case. 48 The appellant takes the view that the [OSCURATO:PERSONA] erred in law by holding, in paragraph 81 of the judgment under appeal, that the [OSCURATO:PERSONA] of Appeal’s finding that there was a similarity between the marks at issue because the dominant element in both of them was the word ‘lidl’ had to be confirmed, because that finding did not adequately take into account the other elements of the earlier mark. 49 The appellant maintains that, in assessing the similarity of the signs at issue, the [OSCURATO:PERSONA] disregarded, inter alia, the fact that the assessment of that similarity cannot be carried out solely on the basis of the dominant word element, if the figurative element cannot be regarded as totally negligible. The appellant submits that, in that regard, the [OSCURATO:PERSONA] did not, in addition, take into account that, as is apparent from paragraphs 42 to 44 of the judgment of 20 September 2007 in Nestlé v OHIM (C‑193/06 P, not published, EU:C:2007:539), the fact that an element is not negligible does not mean that it is dominant and, by the same token, the fact that an element is not dominant in no way means that it is negligible. 50 The appellant takes the view that the [OSCURATO:PERSONA] therefore erred in confirming, in paragraphs 75 and 76 of the judgment under appeal, the [OSCURATO:PERSONA] of Appeal’s findings that, first, the figurative elements of the mark in respect of which registration is sought will be perceived as a decorative frame in which the word ‘lidl’ is placed and that, secondly, those elements do not influence the truly distinctive elements of that mark. 51 The appellant submits that it is apparent from a comparison of the marks as a whole that, visually, they are only similar as regards the word element ‘[OSCURATO:PERSONA]’ or ‘[OSCURATO:PERSONA]’, but differ in their figurative elements, namely, on the one hand, the distinctive circle with the ornate letter ‘L’ and the larger letter ‘M’ with dots on its peaks and, on the other hand, the square with a circle and the stylised letter ‘i’ of ‘[OSCURATO:PERSONA]’. It takes the view that, furthermore, the additional word ‘[OSCURATO:PERSONA]’ in the earlier mark cannot be totally disregarded as it also influences the visual appearance of that mark. The appellant maintains that an average [OSCURATO:PERSONA] consumer will perceive the differences between the two marks at the time of purchasing a musical instrument, not least on account of the different figurative elements of the earlier mark and the different composition of those marks. 52 It must held that, under the guise of arguments relating to errors of law allegedly made by the [OSCURATO:PERSONA], the appellant is, by the present ground of appeal, requesting that the [OSCURATO:PERSONA] carry out a new assessment of the facts with a view to substituting that assessment for that carried out by the [OSCURATO:PERSONA], as correctly pointed out by EUIPO. 53 As regards the arguments set out in paragraphs 48 to 50 of the present order, it must be pointed out that the alleged errors of law could be confirmed only by means of an assessment of the distinctive character of the various elements of the signs at issue which differs from that carried out by the [OSCURATO:PERSONA]. However, such an assessment is manifestly part of the assessment of the facts. 54 As regards the arguments set out in paragraph 51 of the present order, the appellant is once again requesting that the [OSCURATO:PERSONA] substitute its analysis for that carried out by the [OSCURATO:PERSONA] in the context of its definitive assessment of the facts and evidence. Those arguments are therefore inadmissible and must be rejected. 55 The third ground of appeal must therefore be rejected as manifestly inadmissible. 56 It follows from all of the foregoing considerations that the appeal must be dismissed. Costs 57 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA], which applies to appeal proceedings pursuant to [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since EUIPO has applied for costs to be awarded against [OSCURATO:PERSONA] and the latter has been unsuccessful, it must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] & Co. KG shall pay the costs. [Signatures] * Language of the case: English.