Provisional text

ORDER OF THE COURT (Ninth Chamber)

16 February 2017 ([\*](#Footnote*))

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of a figurative sign representing a black square with four white lines — Rejection of the opposition)

In Case C‐502/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 September 2016,

**Monster Energy Company,** established in Corona (United States), represented by P. Brownlow, Solicitor,

appellant,

the other party to the proceedings being:

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

defendant at first instance,

THE COURT (Ninth Chamber),

composed of E. Juhász, President of the Chamber, C. Vajda (Rapporteur) and K. Jürimäe, Judges,

Advocate General: M. Bobek,

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, Monster Energy Company asks the Court to set aside the judgment of the General Court of the European Union of 14 July 2016, *Monster Energy* v *EUIPO — Mad Catz Interactive (Representation of a black square with four white lines)* (T‐567/15, not published, ‘the judgment under appeal’, EU:T:2016:408), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 July 2015 (Case R 2368/2014-5) relating to opposition proceedings between Monster Energy and Mad Catz Interactive.

2        The appellant puts forward two grounds in support of its appeal, alleging infringement of provisions of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

**The appeal**

3        Under Article 181 of its Rules of Procedure, where the 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 that appeal in whole or in part.

4        That provision should be applied in the present case.

5        On 18 January 2017, the Advocate General took the following position:

‘1.      I propose that the Court should dismiss the appeal in the present case as being manifestly inadmissible, for the following reasons:

**The first ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009**

2.      In support of the first ground of appeal, the appellant criticises the General Court for incorrectly finding that there is no similarity between the signs at issue

–        by having failed to take account of the case-law according to which it cannot be ruled out that conceptual similarity may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public,

–        by not having, in the global assessment of the similarity of the trade marks, given more weight to both the conceptual and the visual similarity between the signs at issue, and

–        by having incorrectly assessed the average consumer’s conceptual perception of the signs at issue.

3.      First of all, in so far as the appellant submits that the General Court failed to take account of the case-law according to which it cannot be ruled out that conceptual similarity may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public (judgment of 11 November 1997, *SABEL*, C‐251/95, EU:C:1997:528, paragraph 24), it is apparent from the application before the General Court that, although the appellant, as in the application under examination, invoked an enhanced distinctiveness of the earlier marks, it relied in that regard only on their alleged reputation on the market for energy drinks and clothing for extreme sports. By contrast, it is explicitly clear from the application under examination that the appellant bases its line of argument relating to the enhanced distinctive character of the earlier mark solely on the intrinsic characteristics (distinctiveness per se) of that mark. Therefore the appellant makes a new argument.

4.      According to settled case-law of the Court of Justice, in an appeal the jurisdiction of the Court is confined to review of the findings of law on the pleas argued before the General Court (see, to that effect, judgment of 19 May 2011, *Union Investment Privatfonds* v *OHIM*, C‐308/10 P, not published, EU:C:2011:327, paragraphs 30 and 31, and order of the President of the Court of Justice of 12 June 2014, *Bimbo* v *OHIM*, C‐285/13 P, not published, EU:C:2014:1751, paragraphs 16 to 18). Consequently, this part of the first ground of appeal can be rejected as being manifestly inadmissible.

5.      Next, in so far as the appellant submits, first, that the General Court should have given greater weight to the conceptual similarity between the signs at issue when carrying out the global assessment of the similarity of the marks and, second, that it relied on an incorrect assessment of the average consumer’s conceptual perception of the signs at issue, it must be borne in mind that, in accordance with settled case-law, 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 is limited to points of law. The General Court has exclusive jurisdiction to find and assess the relevant facts and to assess the evidence. It is clear from the case-law of the Court of Justice that the assessment of the similarities between the signs at issue is an analysis of a factual nature which, save in the case of distortion, is not subject to review by the Court of Justice (see, to that effect, judgment of 2 September 2010, *Calvin Klein Trademark Trust* v *OHIM*, C‐254/09 P, EU:C:2010:488, paragraph 50). That applies in particular to the assessment of both the visual perception (see, inter alia, order of 15 December 2010, *Goncharov* v *OHIM*, C‐156/10 P, not published, EU:C:2010:767, paragraphs 38 to 41) and the conceptual perception of the relevant public (see, to that effect, judgment of 20 September 2007, *Nestlé* v *OHIM*, C‐193/06 P, not published, EU:C:2007:539, paragraph 52) and to the assessment of distinctive character (see, inter alia, order of 16 June 2016, *L’Oréal* v *EUIPO*, C‐611/15 P, not published, EU:C:2016:463, paragraph 18).

6.      Since no distortion of any kind has been relied on, it follows from the foregoing that the appellant in fact merely calls into question the factual analysis relating to the similarity between the signs at issue, to the relevant public’s perception of them and to their distinctive character. Consequently, these parts of the first ground of appeal must be rejected as being manifestly inadmissible.

7.      Therefore, the first ground of appeal must be rejected in its entirety as being manifestly inadmissible.

**The second ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009**

8.      By its second ground of appeal taken as a whole, the appellant disputes the conclusions of the General Court concerning the absence of a likelihood of confusion between the signs at issue by maintaining that, in the light of the judgments of 11 November 1997, *SABEL* (C‐251/95, EU:C:1997:528), and of 29 September 1998, *Canon* (C‐39/97, EU:C:1998:442, paragraph 17), the General Court should have concluded that there was a likelihood of confusion between the signs at issue, given the particularly distinctive character per se of the earlier marks, the identity of the goods covered by the signs at issue and the similarity existing between those marks.

9.      As has been recalled in the analysis of the first ground of appeal, the appraisal of the facts and the assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice. The Court has also held that the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case. Accordingly, the assessment of those factors is a question of fact which is not subject to review by the Court on appeal.

10.      In the present instance, the appellant relies neither on any distortion of the facts by the General Court nor on a failure to take account of all factors relevant for assessing the likelihood of confusion. It seeks, in fact, to call into question the assessments of the General Court relating to the absence of a likelihood of confusion between the signs at issue.

11.      Consequently, the second ground of appeal must be rejected as being manifestly inadmissible.

12.      In the light of the foregoing, I therefore propose that the Court of Justice should dismiss the appeal.’

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, 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. Since the present order is adopted before the appeal has been served on the defendant and therefore before the latter could have incurred costs, Monster Energy must be ordered to bear its own costs.

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

1.      **The appeal is dismissed.**

2.      **Monster Energy Company shall bear its own costs.**

Luxembourg, 16 February 2017.

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| A. Calot Escobar | | E. Juhász |

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| Registrar | | President of the Ninth Chamber |

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