Corte di giustizia UE n. 3076/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 14 February 2019 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — Opposition proceedings — Application for registration of the word mark [OSCURATO:PERSONA] — Partial rejection of the opposition) [OSCURATO:PERSONA] C‑510/18 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 3 August 2018, [OSCURATO:PERSONA] SA, established in Luxembourg (Luxembourg), represented by C. Mazzi, G. Guglielmetti and P. Tammaro, avvocati, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] PT, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of T. von [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], E. Levits and P.G. Xuereb (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, 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] SA requests the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 5 June 2018, [OSCURATO:PERSONA] v EUIPO — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑111/16, not published, ‘the judgment under appeal’, EU:T:2018:328), by which the [OSCURATO:PERSONA] dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 13 January 2016 ([OSCURATO:PERSONA] R 3076/2014‑2 and R 3186/2014‑2), as rectified on 14 March 2017, relating to opposition proceedings between [OSCURATO:PERSONA] and [OSCURATO:PERSONA] PT. 2 In support of its appeal, the appellant relies on a single ground, alleging infringement of [OSCURATO:PERSONA] 8(5) 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 [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. 4 That provision must be applied in the present case. 5 On 3 December 2018, the [OSCURATO:PERSONA] took the following position: ‘1.      In support of its appeal against the judgment under appeal, [OSCURATO:PERSONA] relies on a single ground, divided into four limbs, alleging infringement of [OSCURATO:PERSONA] 8(5) of [OSCURATO:PERSONA] 207/2009. 2.      I propose that the [OSCURATO:PERSONA] dismiss the appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded, in accordance with [OSCURATO:PERSONA] 181 of the Rules of Procedure. 3.      By the first limb of the ground of appeal, the appellant argues that the [OSCURATO:PERSONA] erred in law by failing properly to balance the relevant factors in the global assessment of whether there is a link, in the mind of the relevant section of the public, between the mark applied for and the earlier mark. 4.      However, the [OSCURATO:PERSONA] has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence submitted before it, unless it is claimed that the facts or evidence have been distorted. The assessment of the respective weight accorded to, and assessment of, each factor, is a factual analysis. The argument in support of the first limb of the ground of appeal is therefore inadmissible (see, to that effect, judgment of 2 September 2010, [OSCURATO:PERSONA] v OHIM , C‑254/09 P, EU:C:2010:488, paragraphs 49 and 50, and order of 21 June 2016, Mocek, Wenta, KAJMAN [OSCURATO:PERSONA]Usługowo-Produkcyjna v EUIPO , C‑619/15 P, not published, EU:C:2016:475, paragraphs 7, 8, 10 and 11). In any event, it is evident from its reasoning, read as a whole, that the [OSCURATO:PERSONA] did not focus on only two of the relevant factors to the exclusion of other factors, as the appellant suggests, but based its findings on an overall assessment (see, to that effect, order of 14 December 2017, Torres v Alma — [OSCURATO:PERSONA] of [OSCURATO:PERSONA] , C‑499/17 P, not published, EU:C:2017:978, paragraph 7). 5.      By the second limb of the ground of appeal, the appellant submits that the [OSCURATO:PERSONA] erred in law in that it failed to carry out a proper global assessment of whether there was detriment to the distinctive character of the earlier mark. The appellant also argues that the [OSCURATO:PERSONA] erred in law in failing to make logical deductions based on an analysis of the probability of a serious risk of detriment occurring at a later stage. 6.      The alleged error of law complained of in the first argument in that second limb cannot be reviewed by the [OSCURATO:PERSONA] as in reality it seeks to call into question the assessment of the facts made by the [OSCURATO:PERSONA], without invoking any distortion of the facts or of the evidence (see, to that effect, judgment of 17 March 2016, [OSCURATO:PERSONA] v OHIM , C‑252/15 P, not published, EU:C:2016:178, paragraph 59). Nor can the second argument be reviewed by this [OSCURATO:PERSONA], as it was not raised before the [OSCURATO:PERSONA] (see, to that effect, order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 June 2014, Bimbo v OHIM , C‑285/13 P, not published, EU:C:2014:1751, paragraph 16). 7.      By the third limb of the ground of appeal, the appellant claims that the [OSCURATO:PERSONA] erred in law in that it did not properly carry out a global assessment, taking into account all of the relevant factors, of whether there was detriment to the reputation of the earlier mark. By the fourth limb of the ground of appeal, it submits that the [OSCURATO:PERSONA] erred in law in that it did not globally assess the existence of an unfair advantage derived from the distinctive character or the reputation of the earlier mark by taking into account all the relevant factors. It also argues that certain evidence was not taken into account. 8.      Although the third and fourth limbs of the single ground of appeal refer to the existence of errors of law vitiating the judgment under appeal, the arguments put forward by the appellant in support of those limbs also seek again to call into question the evaluation of certain evidence by the [OSCURATO:PERSONA]. It is clear from the judgment as a whole that the [OSCURATO:PERSONA] considered a number of relevant factors in its global assessment. [OSCURATO:PERSONA] enjoys a certain discretion in determining the evidence which it considers relevant and the importance which it attaches to that evidence. That assessment cannot be reviewed by the [OSCURATO:PERSONA], unless a distortion has been alleged. Since that is not the case in the present appeal, there is therefore no point of law that can be reviewed by the [OSCURATO:PERSONA] (see, to that effect, orders of 17 September 2015, [OSCURATO:PERSONA] v OHIM , C‑548/14 P, not published, EU:C:2015:624, paragraph 41, and of 20 September 2017, [OSCURATO:PERSONA] und Likörfabrik v EUIPO , C‑158/17 P, not published, EU:C:2017:701, paragraph 6). 9.      I therefore propose that the [OSCURATO:PERSONA] reject the single ground of appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded.’ 6 The first limb of the single ground of appeal, by which the appellant submits that the [OSCURATO:PERSONA] erred in law in the assessment of the link between the marks at issue, must be rejected as manifestly inadmissible and, in any event, as manifestly unfounded for the reasons stated by the [OSCURATO:PERSONA] in point 4 of his position. 7 By the second, third and fourth limbs of the ground of appeal, the appellant disputes the assessment made by the [OSCURATO:PERSONA] of the likelihood of detriment to the distinctive character or the reputation of the earlier marks and the risk of unfair advantage being taken of that distinctive character or reputation, set out in paragraphs 52 to 57 of the judgment under appeal. 8 In that regard, as shown by the expression ‘in any event’, in paragraph 52 of the judgment under appeal, it is only for the sake of completeness that the [OSCURATO:PERSONA] assessed those risks, after confirming, in paragraphs 50 and 51 of that judgment, the [OSCURATO:PERSONA] of Appeal’s finding that the appellant had not demonstrated the existence of a link, in the mind of the relevant public, between the marks at issue. 9 In the absence of such a link in the mind of the public, the use of the later mark is not likely to take unfair advantage of, or to be detrimental to, the distinctive character or the reputation of the earlier mark (order of 17 September 2015, [OSCURATO:PERSONA] v OHIM , C‑548/14 P, not published, EU:C:2015:624, paragraph 75 and the case-law cited). 10 Since the first limb relating to the link between the signs at issue has been rejected, the second, third and fourth limbs of the ground of appeal, even if they were well founded, cannot lead to the setting aside of the judgment under appeal. They must therefore be rejected as manifestly ineffective. 11 On those grounds, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded. Costs 12 [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. In the present case, since the present order was adopted before the appeal was served on the respondent and therefore before the latter could have incurred costs, [OSCURATO:PERSONA] must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. [OSCURATO:PERSONA] SA shall bear its own costs. Luxembourg, 14 February 2019. A. [OSCURATO:PERSONA] T. von [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.