ORDER OF THE COURT (Tenth Chamber)

11 May 2017 ([\*](#Footnote*))

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Word mark T.G.R. ENERGY DRINK — Invalidity proceedings — Declaration of invalidity)

In Case C‐639/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 9 December 2016,

**Foodcare sp. z o.o.,** established in Zabierzów (Poland), represented by M. Żabińska, radca prawny,

appellant,

the other parties to the proceedings being:

**European Union Intellectual Property Office (EUIPO),**

defendant at first instance,

**Dariusz Michalczewski,** residing in Gdańsk (Poland), represented by B. Matusiewicz-Kulig and M. Marek, adwokaci, and by M. Czerwińska, radca prawny,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of M. Berger, President of the Chamber, A. Borg Barthet and F. Biltgen (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

**Order**

1        By its appeal, Foodcare sp. z o.o. requests that the Court (i) set aside the judgment of the General Court of the European Union of 5 October 2016 (*Foodcare* v *EUIPO — Michalczewski (T.G.R. ENERGY DRINK)* (T‐456/15, ‘the judgment under appeal’, EU:T:2016:597), by which that court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 May 2015 (Case R 265/2014-2) concerning invalidity proceedings between Mr Dariusz Michalczewski (‘the intervener’) and Foodcare, (ii) give a final ruling on the dispute or, in the alternative, refer the case back to the General Court, and (iii) order EUIPO to pay all the costs.

2        In support of its appeal, Foodcare relies on a single ground of appeal, divided into two parts, alleging that the General Court infringed Article 52(1)(b) of Regulation (EC) No 207/2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

**The appeal**

3        Pursuant to Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part.

4        That provision should be applied in the present case.

5        On 8 March 2017, the Advocate General took the following position:

‘3.       In accordance with Article 181 of the Rules of Procedure of the Court of Justice, I propose that the Court dismiss the appeal in the case under consideration as, in part, manifestly unfounded and, in part, manifestly inadmissible, for the reasons set out below, and order Foodcare to bear its own costs.

4. By the first part of its single ground of appeal, Foodcare maintains that the General Court distorted the facts of the case by presenting them, selectively, in a way that does not accord with reality. The appellant also claims that the General Court failed to have regard to the principle of ‘whole assessment of events’, by not taking account of all the relevant factors specific to the case when assessing whether it had acted in bad faith. In particular, it takes issue with the General Court for accepting the claim that it had acted in bad faith, in reliance simply on the existence contractual relations between the applicant and the intervener and the fact that those relations existed prior to the filing of the application for registration of the contested trade mark. The General Court thereby satisfied itself, incorrectly, by merely examining ‘the first impression of bad faith’.

5. Moreover, Foodcare contends that the General Court adopted contradictory reasoning in paragraph 55 of the judgment under appeal, first, by inferring bad faith from the existence of earlier promotional agreements, and, second, by stating that the nature of those agreements was irrelevant for the purpose of determining whether there had been bad faith.

6. As regards, in the first place, the argument alleging distortion of the facts, it should be noted that, given the exceptional nature of a ground of appeal based on such an argument, Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice provide, in particular, that an appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (see, inter alia, judgment of 17 March 2016, *Naazneen Investments* v *OHIM*, C‐252/15 P, not published, EU:C:2016:178, paragraph 69 and the case-law cited).

7. It should be noted that, in the present case, Foodcare’s claim that the facts were distorted is not substantiated to the requisite legal standard in its appeal. Indeed, the appellant simply pleads that the General Court presented the facts selectively, without identifying the facts which that court failed to take into account or indicating precisely the facts which were presented selectively, imprecisely and incompletely.

8. In those circumstances, an appeal which, as in the present case, merely makes general statements — the appellant taking issue with the General Court for, inter alia, completely disregarding ‘objective circumstances that have taken place next and in parallel to the conclusion of agreements between the parties’ (paragraph 9 of the appeal) and failing to consider, when determining whether there had been bad faith, ‘the fringe side circumstances occurring before and after the conclusion of the agreements, but also before the date of filing of the contested mark’ (paragraph 11 of the appeal) — without indicating precisely the nature of those circumstances and ‘fringe’ or secondary conditions or their alleged effect on the distortion of the facts, does not fulfill the requirements as to precision referred to in paragraph 6 above.

9. The argument in question must therefore be rejected as manifestly inadmissible.

10. In the second place, with regard to the argument that the General Court failed to have regard to the principle of ‘whole assessment of the events’, it is apparent from paragraphs 30 to 57 of the judgment under appeal that, contrary to what is alleged by Foodcare, the General Court pursued a full and detailed line of reasoning in its assessment of bad faith and took account of all the relevant evidence in the case.

11. Accordingly, the General Court did not simply take account of the direct contractual relations between the applicant and the intervener, but also, first, in paragraph 30 of the judgment under appeal, of the reasons for the agreements concluded by Foodcare and the intervener, and, second, in paragraphs 31 and 32 of the judgment, of Foodcare’s obligation under those agreements to pay the intervener for the use of his image, name, nickname and word and figurative marks and to obtain his prior written consent for any actual use of the intervener’s rights and the marks owned by him.

12. Furthermore, the General Court observed, in paragraphs 35 and 36 of the judgment under appeal, that the images used on packaging of the products marketed by the applicant and the partial resemblance — that is, at least in so far as concerns the visual and phonetic aspects — of the contested mark to the sign Tiger Energy Drink demonstrated the applicant’s intention, first, to develop its commercial activity by associating it with the image projected by the intervener and his reputation, and, second, to create in the mind of the consumer, if not confusion, then at least an association between the contested mark and the sign Tiger Energy Drink, which enjoyed a considerable reputation.

13. Lastly, in analysing Foodcare’s intention in paragraph 43 of the judgment under appeal, the General Court found that it was reasonable to conclude that, in filing the application for registration of the contested mark, the applicant intended to continue benefiting from the reputation enjoyed by the sign ‘Tiger Energy Drink’, while circumventing the contractual obligations arising from the agreements concluded with the intervener.

14. The General Court was therefore entitled to confirm, in paragraph 45 of the judgment under appeal, the conclusion reached by the Board of Appeal after carrying out an overall assessment taking account of all the relevant factors that the applicant had acted in bad faith when it filed the application for registration of the contested mark. The argument that the General Court failed to carry out an overall assessment of the events must, therefore, be rejected as manifestly unfounded.

15. As regards the appellant’s argument concerning the General Court’s alleged contradictory reasoning in paragraph 55 of the judgment under appeal, it should be noted, in the third and final place, that that argument is based on a misreading of the judgment. That argument cannot succeed because it is clear from the foregoing considerations that the General Court did not, in any way, base its decision merely on the existence of the agreements concluded by the applicant and the intervener in determining whether Foodcare had acted in bad faith when it filed the application for registration of the contested mark.

16. It follows from the foregoing that the first part of the single ground of appeal must be rejected as in part manifestly inadmissible and in part manifestly unfounded.

17. By the second part of its single ground of appeal, Foodcare contends that the General Court erred in law in that it omitted to take into account, first, the constituent element of bad faith, namely the applicant’s dishonest intent, and, second, the applicant’s legitimate interest in applying for registration of the contested mark.

18. It is nonetheless clear that the effect of all Foodcare’s arguments in this regard is simply to call into question the findings of fact made by the General Court in its assessment of the relevant evidence in the present case and that the appellant is in fact requesting the Court of Justice to substitute its own assessment for that of the General Court.

19. Under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts does not therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, order of 28 February 2013, *Carrols* v *OHIM*, C‐171/12 P, not published, EU:C:2013:131, paragraph 35 and the case-law cited).

20. As the facts relied on by the appellant in support of the second part of the single ground of appeal are the same as those relied on in the first part of that ground, the claim that the General Court distorted the facts cannot, in any event, be made out and must therefore be rejected.

21. It is also necessary to reject the appellant’s argument that the General Court erred in law, in paragraph 51 of the judgment under appeal, by considering that it was seeking to rely on the absence of genuine use by the intervener of the EU trade mark Dariusz Tiger Michalczewski and thereby change the subject matter of the proceedings before the Board of Appeal, when, in fact, Foodcare intended, by that line of argument, to maintain that an objective factor, that is, the low degree of legal protection enjoyed by that mark, had some bearing on its intention.

22. It is clear that the appellant has failed to identify the legal rule allegedly infringed by the General Court. Moreover, even if it were accepted that the General Court misinterpreted the implications of the argument put forward by the applicant, that would in any event not be sufficient to establish that the General Court erred in law in its analysis of the applicant’s intention or to demonstrate that it failed to take account of all the relevant factors of the case when determining whether the applicant had acted in bad faith. That argument must therefore be rejected as manifestly unfounded.

23. In those circumstances, the second part of the single ground of appeal must be rejected as in part manifestly inadmissible and in part manifestly unfounded and, as a consequence, the appeal must be dismissed in its entirety.’

6        On the same grounds as those stated by the Advocate General, the appeal must be dismissed.

**Costs**

7        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to the procedure on appeal pursuant to Article 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 other parties and therefore before they could have incurred costs, Foodcare must be ordered to bear its own costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

1.      **The appeal is dismissed.**

2.      **Foodcare sp. z o.o. is to bear its own costs.**

Luxembourg, 11 May 2017.

| | | |
| --- | --- | --- |
| A. Calot Escobar | | M. Berger |

| | | |
| --- | --- | --- |
| Registrar | | President of the Tenth Chamber |

---

[\*](#Footref*) Language of the case: English