Order — ECLI:EU:C:2014:2116
Date: 2014-07-17
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Hungary

summary of the arguments invoked and that that information must be sufficiently clear and precise to allow the defendant to prepare its defence and the General Court to rule on the action, as the case may be, without other supporting information. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provision, must appear in the application. 31 In that regard, the General Court held, in paragraph 19 of the judgment under appeal, that MOL failed to identify either the specific points of its application which it wished to supplement by the general reference made by it, in paragraph 7 thereof, to the arguments raised before OHIM or the annexes in which those arguments, if any, were set out. It deduced therefrom, in paragraph 20 of that judgment, that it is not its task to search for or to identify, among the numerous annexes, the elements to which MOL could refer or to examine them, since such arguments are inadmissible. 32 It must be noted that that finding cannot be called into question by MOL’s argument seeking to reclassify the general reference which it made to the arguments invoked before OHIM as being a mere technical reference. Therefore, that argument must be rejected as irrelevant. 33 Furthermore, with regard to MOL’s claim that those arguments were reiterated in its application, it must be noted that they were examined by the General Court in the context of the single plea invoked by MOL. Since the General Court rejected that plea in paragraph 63 of the judgment under appeal, the claim by MOL must also be rejected as irrelevant. 34 Consequently, the first ground invoked by MOL in support of its appeal must be rejected in its entirety. The second ground of appeal Arguments of the parties 35 By its second ground of appeal, alleging an infringement of Article 65(2) of Regulation No 207/2009 and Article 135(4) of the Rules of Procedure of the General Court, MOL complains that that court held the evidence included in its application to be inadmissible in so far as it was presented for the first time before it. 36 On the one hand, MOL claims that, in the context of the proceedings before OHIM, it had set out in, inter alia, the written observations submitted by it, the facts and arguments covered by that evidence. That evidence therefore does not alter the subject-matter of the proceedings and does not relate to new facts or arguments. 37 On the other, MOL claims that it is apparent from the Court’s case-law that evidence of the accuracy of well-known facts invoked in the context of the proceedings before the General Court may be submitted, even if it was not presented in the context of the proceedings before OHIM (judgments in Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraphs 50 and 51, and LG Electronics v OHIM, C‑88/11 P, EU:C:2011:727, paragraph 29). It deduces therefrom that the evidence it attached to its application initiating proceedings was admissible given that it is clear that it concerns well-known facts. Not only were those facts known by everyone in the sector of information concerning the functioning and general use of debit and credit cards with different colours, but those facts could also be consulted by means of generally accessible sources, in particular, the website of MOL and the public trade mark registers. 38 OHIM considers that that ground of appeal must be rejected in so far as MOL does not draw a distinction between the facts invoked and the administration of proof of those facts. Therefore, even if MOL alleged the existence of a family of ‘mol’ marks, it failed to adduce evidence in support of such a contention. Findings of the Court 39 It should be noted that, as the General Court pointed out in paragraph 22 of the judgment under appeal, an action brought before it seeks a review of the lawfulness of decisions of the Boards of Appeal within the meaning of Article 65 of Regulation No 207/2009 and that, under Article 135(4) of the Rules of Procedure of the General Court, the parties’ pleadings may not change the subject‑matter of the proceedings before the Board of Appeal. 40 In the present case, MOL merely alleges that, during the proceedings before OHIM, it duly set out the facts and arguments covered by the evidence which was attached to its application. It does not, however, deny that it failed to present that evidence during the proceedings before OHIM. 41 Therefore, the conclusion reached by the General Court in paragraph 23 of the judgment under appeal, that the evidence attached by MOL to its application is inadmissible in so far as it was presented for the first time before it, is not called into question by the arguments invoked in support of the present ground of appeal. 42 With regard to the argument alleging that the facts invoked before the General Court are well known, it should be noted that the case-law on which the arguments of MOL are based is not relevant in the context of the present appeal. That case-law provides, first, that the bodies of OHIM may base their decisions on well-known facts, that were not invoked by the applicant, being required to establish the accuracy thereof (judgment in Storck v OHIM, EU:C:2006:422, paragraphs 50 and 51), and, secondly, that they are entitled to present documents to the General Court in order to substantiate the accuracy of a well-known fact although the latter has not been established in the OHIM decision contested before the General Court (judgment in LG Electronics v OHIM, EU:C:2011:727, paragraph 29). Consequently, that case-law cannot usefully be invoked by an applicant which attaches to its application initiating proceedings before the General Court evidence that was not presented or examined in the context of the proceedings before OHIM. 43 Therefore, the second ground invoked by MOL in support of its appeal must be rejected as manifestly unfounded. The third ground of appeal Arguments of the parties 44 By its third ground of appeal, alleging an infringement of Article 8(1)(b) of Regulation No 207/2009, MOL complains that the General Court held that the Board of Appeal was correct to find that there existed a likelihood of confusion between the marks at issue. 45 MOL claims that the General Court, in defining the relevant public, disregarded the fact that the characteristics of banking and financial services imply a high degree of attention on the part of the average consumer who will subscribe to such services only after a particularly careful examination. Such a fact is liable to reduce the likelihood of confusion between the marks relating to those services. 46 With regard to the comparison of the services, MOL claims that the General Court erred in law, first, by failing to regard as a question of evidence the fact that the services covered by the application for registration are included in the list of the class at issue, and, secondly, by stating that the services referred to by the earlier marks include the services covered by the mark in respect of which registration is sought. According to MOL, the comparison between each of the earlier marks and the mark at issue reveals a partial dissimilarity, since the services in Class 36 of the Nice Agreement referred to by the earlier marks are understood in a broad sense and are not identical to the specialised services in Class 36 covered by the mark for which registration is sought. 47 With regard to the comparison of the signs, MOL complains that the General Court failed to take into account the weak distinctive character of the element ‘blue’ which results from the fact that it designates a primary colour used generally in business and everyday language and argues that it is generally used in relation to credit or debit cards in the banking and finance sector. MOL claims also that, in paragraph 46 of the judgment under appeal, the General Court incorrectly interpreted and rejected without grounds its arguments relating to the reputation of the word ‘mol’, the purpose of which was, in reality, to show its distinctive and dominant character in the mark at issue. 48 Moreover, MOL considers that, by rejecting the reference it made to the principles of sound administration and equal treatment and by referring to the principle of legality without specifying the reason why it was infringed and which type of unlawfulness MOL had invoked in support of its claim, the General Court infringed those principles. 49 As regards the assessment of the visual, phonetic and conceptual similarity of the marks at issue, MOL claims, first of all, that the degree of visual similarity is extremely weak in the light in particular of the number and length of the initial words ‘BBVA’ and ‘TARJETA’, the position and weak distinctive character of the word ‘blue’ and the reputation of the highly distinctive word ‘mol’. MOL adds that the conclusion reached by the General Court in paragraph 47 of judgment under appeal is incorrect given that consumers are able to identify the differences between the marks at issue. Next, MOL claims that, as a result of the very weak degree of phonetic similarity between those marks, the visual similarity cannot be average. Finally, according to MOL, the degree of conceptual similarity is weak in so far as, first, for non-Spanish-speaking consumers, the words ‘card’ and ‘tarjeta’ are not similar and, secondly, consumers concentrate on the differences between the marks at issue, in particular the word ‘mol’ and the sign ‘BBVA’. 50 Consequently, MOL considers that the General Court erred in law by holding that the presence of the words ‘mol’ and ‘card’ is not enough to offset the similarity of the weakly distinctive element ‘blue’ and that the conclusion that it failed to invoke any arguments or evidence capable of showing that the findings of the Board of Appeal in that regard are mistaken is factually incorrect. 51 OHIM considers that that ground of appeal must be rejected as manifestly inadmissible in so far as MOL seeks, in reality, to obtain a reexamination by the Court of the findings of fact made by the General Court, without showing or claiming that the latter distorted the facts or evidence. Findings of the Court 52 It should be noted that, under Article 256(1) TFEU and the first subparagraph of Article 58 of the Statute of the Court, an appeal lies on a point of law only. The General Court has, therefore, 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 does not, save where they distort the evidence, constitute a point of law subject, as such, to review by the Court of Justice on appeal (see judgment in Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49 and case-law cited). 53 It suffices to state that, by complaining that the General Court incorrectly assessed the similarity of the services at issue and the visual, phonetic and conceptual similarity of the marks at issue and, therefore, that it found the existence of a likelihood of confusion between them, MOL seeks to have reviewed by the Court factual assessments made by the General Court in the context of the single plea invoked by MOL at first instance, without showing or even alleging that the General Court distorted the facts or evidence. 54 In those circumstances, it is necessary to reject the third ground of appeal as manifestly inadmissible. 55 Since none of the three grounds of appeal invoked by MOL in support of its appeal has been upheld, the latter must be dismissed in its entirety. Costs 56 Under Article 138(1) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 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 the appellant has been unsuccessful and OHIM has applied for an order for costs, the appellant must be ordered to pay the costs. On those grounds, the Court (Sixth Chamber) hereby: 1. Dismisses the appeal; 2. Orders MOL Magyar Olaj- és Gázipari Nyrt. to pay the costs. [Signatures] * Language of the case: English.