ORDER OF THE COURT (Seventh Chamber)

20 June 2019 ([\*](#Footnote*))

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Invalidity proceedings — Partial declaration of invalidity — Word mark VIPER — Earlier national word mark VIPER — Genuine use of the earlier mark)

In Case C‐795/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 December 2018,

**FCA US LLC,** established in Auburn Hills (United States), represented by C. Morcom QC,

appellant,

the other party to the proceedings being:

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

defendant at first instance,

THE COURT (Seventh Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda and A. Kumin (Rapporteur), Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

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

makes the following

**Order**

1        By its appeal, FCA US LLC seeks to have set aside the judgment of the General Court of the European Union of 18 October 2018, *FCA US* v *EUIPO — Busbridge (VIPER)* (T‐109/17, not published, EU:T:2018:697) (‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 December 2016 (Case R 554/2016-1), relating to invalidity proceedings between Mr Robert Dennis Busbridge (‘the applicant for a declaration of invalidity’) and FCA US (‘the decision at issue’).

2        In support of its appeal, the appellant relies on two grounds of appeal, alleging, first, infringement of the rights of the defence and, secondly, infringement of Article 57(2) and (3) 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 must be applied in the present case.

5        On 11 April 2019, the Advocate General took the following position:

‘1.      By its appeal, the appellant claims that the Court should:

–        set aside [the judgment under appeal];

–        set aside the decision [at issue], or, in the alternative, refer the case back to the General Court for judgment in accordance with the Court’s decision;

–        order EUIPO to pay the costs incurred by the appellant in connection with the present appeal as well as the costs of the proceedings before the General Court and before the Board of Appeal of EUIPO, and

–        order that the application of the EUIPO decisions be suspended pending the hearing of the present appeal in accordance with Articles 278 and 279 TFEU.

2.      In support of its appeal, the appellant relies on two grounds of appeal, alleging, first, infringement of the rights of the defence and, secondly, infringement of Article 56 and 57 of Regulation [No 207/2009].

3.      For the reasons set out thereafter, I propose that the Court should dismiss the appeal in the present case as, in part, manifestly unfounded and, in part, manifestly inadmissible in accordance with Article 181 of the Rules of Procedure.

**The first ground of appeal**

4.      By its first ground of appeal, the appellant alleges, in essence, that the General Court infringed its rights of the defence during the proceedings before the Board of Appeal of EUIPO, in so far as it was not allowed to submit its observations in response to the further evidence of use of the earlier national mark VIPER produced by the applicant for a declaration of invalidity.

5.      According to settled case-law of the Court of Justice, an infringement of the rights of the defence results in the annulment of the contested measure only if, without such an irregularity, the outcome of the procedure might have been different, which is for the party concerned to show (see, inter alia, judgments of 21 March 1990, *Belgium* v *Commission*, C‐142/87, EU:C:1990:125, paragraph 48; of 6 September 2012, *Storck* v *OHIM*, C‐96/11 P, not published, EU:C:2012:537, paragraph 80, as well as of 26 September 2018, *Infineon Technologies* v *Commission*, C‐99/17 P, EU:C:2018:773, paragraph 78 and the case-law cited).

6.      In the present case, the General Court held in paragraph 33 of the judgment under appeal that the appellant had not put forward any arguments regarding whether the proceedings before the Board of Appeal of EUIPO could have led to a different outcome if it had been heard on the additional evidence of use in question. In that regard, the General Court referred to paragraph 18 of its judgment of 15 July 2015, *Australian Gold* v *OHIM — Effect Management & Holding (HOT)* (T‐611/13, EU:T:2015:492), which, in essence, reflects the case-law of the Court of Justice referred to in the previous point above.

7.      The appellant has not submitted any evidence capable of showing that the General Court erred in law or distorted the facts or evidence inasmuch as it has found, on the basis of the arguments and evidence before it, that the appellant had failed to establish that the outcome at which the Board of Appeal of EUIPO arrived in the decision at issue might have been different without the alleged irregularity.

8.      Therefore, I am of the view that the first ground of appeal must be rejected as manifestly unfounded.

**The second ground of appeal**

9.      By its second ground of appeal, the appellant claims, in essence, several errors of law on the part of the General Court inasmuch as it found that the Board of Appeal of EUIPO did not err in concluding that the earlier national mark VIPER had been used for the goods covered by that mark, namely in relation to sports cars in kit form, during the relevant period.

10.      In the first place, the appellant criticises the Board of Appeal of EUIPO for defining ‘kit cars’, by referring to a dictionary definition, as cars sold in parts for assembly by the owners themselves.

11.      In that regard, it is appropriate to recall that arguments in an appeal which criticise the decision in respect of which annulment was sought before the General Court, rather than the judgment delivered by the General Court following that application for annulment, are inadmissible (see, inter alia, judgment of 25 July 2018, *QuaMa Quality Management* v *EUIPO*, C‐139/17 P, not published, EU:C:2018:608, paragraph 54 and the case-law cited).

12.      In the present case, by the abovementioned ground of challenge, the appellant does not criticise the grounds of the judgment under appeal but rather the reasoning in the decision of the Board of Appeal of EUIPO, and it does not rely on the existence of an error of law on the part of the General Court, in particular in paragraph 47 of its judgment. That ground of challenge must therefore be rejected as manifestly inadmissible.

13.      In the second place, the appellant alleges that the General Court failed to find fault with the finding of the Board of Appeal of EUIPO, in paragraph 35 et seq. of the judgment under appeal, that ‘sports cars in kit form’ constitute an independent subcategory of the broader category of ‘sport cars’, by referring to the arguments it had put forward in its application before the General Court.

14.      However, it follows from, inter alia, Article 168(1)(d) and Article 169(2) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Elements of that appeal which merely reproduce the pleas in law and arguments previously submitted before the General Court, without including any argument specifically identifying the error of law allegedly vitiating the judgment under appeal, do not satisfy those requirements and must therefore be rejected as manifestly inadmissible (see, inter alia, judgments of 6 September 2018, *Basic Net* v *EUIPO*, C‐547/17 P, not published, EU:C:2018:682, paragraph 43; of 23 January 2019, *Deza* v *ECHA*, C‐419/17 P, EU:C:2019:52, paragraph 93 and 94, and of 4 April 2019, *OZ* v *EIB*, C‐558/17 P, EU:C:2019:289, paragraph 33).

15.      In the present case, the appellant limits itself, in essence, to repeating the arguments it has previously submitted before the General Court, without putting forward elements capable of establishing that the judgment under appeal is vitiated by an error of law. Therefore, those arguments must be rejected as manifestly inadmissible.

16.      In the third place, the appellant argues that ‘sports cars in kit form’ can be considered as ‘sports cars’ only if the kit supplied is complete in itself and, in its view, that is not the case for the goods sold by the applicant for a declaration of invalidity since, according to the appellant, those kits must be supplemented by vital parts from a different trade source.

17.      In that regard, it must be borne in mind that, in accordance with 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 appraise the relevant facts and to 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 Court of Justice on appeal (see, inter alia, judgments of 28 February 2018, *mobile.de* v *EUIPO*, C‐418/16 P, EU:C:2018:128, paragraph 65, and of 26 March 2019, *Commission* v *Italy*, C‐621/16 P, EU:C:2019:251, paragraph 97).

18.      In the present case, as set out in paragraphs 51 to 59 of the judgment under appeal, the General Court noted, in particular, that the appellant’s arguments alleging the incomplete nature of kits offered by the applicant for a declaration of invalidity were based on a misreading of the decision at issue and that, moreover, the issue arising was not decisive. Since the appellant has not established or even claimed a distortion of the relevant facts, the ground of challenge seeking to secure from the Court a new appraisal of the relevant facts must therefore be rejected as manifestly inadmissible.

19.      In the fourth place, the appellant disputes the assessment, by the Board of Appeal of EUIPO, of the evidence submitted by the applicant for a declaration of invalidity, which was endorsed by the General Court, in particular in paragraph 60 of the judgment under appeal, by claiming that articles and advertisements published in specialised magazines cannot constitute evidence of the prior use of the mark at issue in the course of trade.

20.      By its arguments the appellant seeks, in fact, to secure from the Court a new examination of the evidence concerned, without establishing or even putting forward any distortion thereof by the General Court. It follows from the case-law of the Court of Justice referred to in point 17 above, concerning the limits of appellate review by the Court of Justice, that those arguments must also be rejected as manifestly inadmissible.

21.      In light of all these considerations, I am of the opinion that the second ground of appeal must be dismissed as manifestly inadmissible.

22.      Since the first ground of appeal is manifestly unfounded and the second ground of appeal is manifestly inadmissible, the appeal must be dismissed in its entirety and the appellant must be ordered to pay the costs pursuant to Article 137 and Article 184(1) of the Rules of Procedure.’

6        With regard to the second ground of appeal, it is necessary, in the first place, to add that, to the extent that the appellant criticises the General Court for upholding the Board of Appeal’s analysis regarding the definition of the word ‘kit car’ as set out in the *Oxford dictionary*, it is sufficient to note that the appellant does not explain which error of law, in its view, the General Court made in upholding that analysis. Accordingly, on the basis of the case-law cited in point 14 of the Advocate General’s position, it is appropriate to reject that ground of challenge as manifestly inadmissible.

7        In the second place, the appellant alleges that the General Court failed to address the ground of challenge it submitted in support of that second submission, claiming, in essence, that the definition of ‘kit car’ as set out in that dictionary is not a permissible basis for establishing that the goods sold by the applicant for a declaration of invalidity were sports cars in kit form.

8        However, that ground of challenge is based on a manifestly incorrect reading of paragraph 60 of the judgment under appeal and must, therefore, be rejected as manifestly unfounded. Indeed, in that paragraph of the judgment, the General Court addresses that ground of challenge by noting that it is clear from the decision at issue that the Board of Appeal based its analysis on the evidence submitted by the applicant for a declaration of invalidity and dating from the relevant period, and, in particular, on the articles published in the specialised magazine *Kitcar* as well as on the frequent and regular insertion of advertisements concerning the earlier mark in that magazine.

9        In the third place, to the extent that the appellant alleges that the General Court ignored the arguments put forward in the application lodged before the General Court in order to challenge the Board of Appeal’s finding that ‘sports cars in kit form’ constitute an ‘independent subcategory’ of the broader category of ‘sports cars’, it is sufficient to note that the General Court cannot be criticised for not adjudicating on a ground of challenge that was not raised before it (see, by analogy, judgment of 22 October 2015, *AC-Treuhand* v *Commission*, C‐194/14 P, EU:C:2015:717, paragraph 55).

10      As the General Court observed in paragraph 39 of the judgment under appeal, in the context of the application lodged before it, the appellant did not raise any argument specifically challenging the Board of Appeal’s finding that ‘sports cars in kit form’, for which the earlier mark was found to have been used, constitute an independent subcategory of the broader category of ‘sports cars’.

11      It follows that that ground of challenge must be dismissed as manifestly unfounded.

12      In the fourth place, the appellant alleges that the General Court held, in paragraph 55 of the judgment under appeal, that the arguments claiming the incomplete nature of the kits offered by the applicant for a declaration of invalidity were based on a misreading of the decision at issue.

13      The appellant claims that this alleged error of law on the part of the General Court, first, stemmed from the General Court’s assertion, in paragraph 51 of the judgment under appeal, that the Board of Appeal did not define, contrary to what the appellant submitted, a kit car as a kit which includes all the parts necessary for assembling a car, and that it found that the earlier mark had been used for sports cars in kit form, despite the need for, in respect of certain vehicle components, a donor vehicle. However, according to the appellant, the Board of Appeal could not validly have defined a kit car in such terms. Secondly, according to the appellant, the General Court, in paragraph 52 of the judgment under appeal, in effect accepted and by implication wrongly accepted the Board of Appeal’s reference to the ‘comprehensive nature’ of the kits of the applicant for a declaration of invalidity. Thirdly, in the appellant’s view, the General Court’s finding in paragraph 53 of the judgment under appeal, that such a ‘fact’ did not make it possible to conclude that, in the present case, the Board of Appeal had found that the goods sold by the applicant for a declaration of invalidity were kits containing all the components necessary to build a car, indeed supports the argument advanced on behalf of the appellant throughout, namely that the substantially incomplete kits offered by the applicant for a declaration of invalidity could not validly be called ‘kit cars’ as defined in the *Oxford dictionary*.

14      In that regard, it should be noted, first, that in so far as the appellant alleges that the Board of Appeal incorrectly defined the term ‘kit car’, it is sufficient to reject this argument as manifestly inadmissible on the basis of the case-law cited in point 11 of the Advocate General’s position. Next, it must be held that the General Court, in paragraph 52 of the judgment under appeal, contrary to what the appellant submits, did not endorse the Board of Appeal’s reference to the ‘comprehensive nature’ of the kits of the applicant for a declaration of invalidity, but merely found as a fact that the ‘Board of Appeal referred, in response to the [appellant]’s arguments, to the “comprehensive nature” of the kits proposed by the applicant for a declaration of invalidity under the earlier mark’. The appellant’s argument is thus based on a manifestly incorrect reading of the judgment under appeal and must, therefore, be rejected as manifestly unfounded. Finally, as regards the appellant’s argument concerning paragraph 53 of the judgment under appeal, it should be noted that the appellant merely disputes the General Court’s finding in that paragraph of its judgment without developing any specific legal argument capable of establishing that that judgment is vitiated by an error of law. Therefore, in accordance with the case-law cited in point 14 of the Advocate General’s position, that argument must be rejected as manifestly inadmissible.

15      It follows that the appellant’s argument referred to in paragraph 12 of the present order cannot succeed.

16      In the fifth place, the appellant alleges that the General Court failed, in paragraph 57 of the judgment under appeal, to represent fairly the arguments it put forward before that Court, before reiterating, in essence, those arguments.

17      The appellant thus merely reproduces arguments it has previously put forward at first instance, without developing any specific legal argument capable of challenging the General Court’s assessments. Accordingly, on the basis of the case-law cited in point 14 of the Advocate General’s position, it is appropriate to reject that ground of challenge as manifestly inadmissible.

18      In the sixth place, the appellant criticises the General Court, first, for applying in paragraph 59 of the judgment under appeal, by analogy, paragraph 41 of the judgment of 11 March 2003, *Ansul* (C‐40/01, EU:C:2003:145), although the facts of the case at issue are different, in its view, and, secondly, for finding, pursuant to that case-law and on the basis of the evidence submitted, that the question whether all the components of the VIPER sports car in kit form were manufactured or sold by the applicant for a declaration of invalidity was not decisive.

19      In that regard, suffice it to note that that ground of challenge, under cover of an alleged error of law, seeks, in reality, to secure from the Court of Justice a new appraisal of the facts and a new assessment of the evidence submitted at first instance, without putting forward any distortion of those facts or that evidence.

20      Therefore, in accordance with the case-law cited in point 17 of the Advocate General’s position, such a ground of challenge must be rejected as manifestly inadmissible.

21      For those reasons and for those given by the Advocate General, the appeal must be dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded.

**Costs**

22      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 was adopted before the appeal was served on the respondent and therefore before the latter could have incurred costs, the appellant must be ordered to bear its own costs.

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

1.      **The appeal is dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded.**

2.      **FCA US LLC shall bear its own costs.**

Luxembourg, 20 June 2019.

| | | |
| --- | --- | --- |
| A. Calot Escobar | | T. von Danwitz |

| | | |
| --- | --- | --- |
| Registrar | | President of the Seventh Chamber |

---

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