Order — ECLI:EU:C:2013:300
Date: 2013-05-14
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Netherlands

summary of the background to the dispute are incorrect. The appellant states that the General Court’s summary of the contested decision does not correctly reproduce the findings in that decision. The General Court stated that the Board of Appeal found that the goods were different whereas the Board of Appeal, in its decision, found that they were quite different. 33 You‑Q also submits that the General Court failed to properly reflect the Opposition Division’s decision and the contested decision with regard to the establishment of the link that Article 8(5) of Regulation No 40/94 requires for its application. Consequently, the General Court incorrectly stated that the Board of Appeal found that ‘although the goods are dissimilar, the relevant public overlaps’ even though the Board of Appeal found that although the actual goods compared are very dissimilar, the two sets of relevant public overlap. 34 The appellant takes the view, moreover, that those statements are incomprehensible in view of Intel Corporation (paragraphs 46 and 47) and General Motors (paragraph 24) on which the General Court relies. Those judgments cannot, according to the appellant, serve as a basis inasmuch as they relate to the issue of assessing the reputation of a registered mark in relation to the relevant section of the public as regards the goods covered by that mark and not to that of an overlap between the relevant public. 35 In You-Q’s submission, the General Court did not therefore properly assess the existence of the required link and should have concluded that such a link is non‑existent. 36 In the second place, You‑Q disputes the ‘Law’ part of the judgment under appeal inasmuch as it includes further infringements of Article 8(5) of Regulation No 40/94. 37 You-Q submits that the General Court incorrectly reflected its arguments regarding the distinctiveness of the earlier marks. You‑Q did not argue that the word ‘BEATLES’ does not have any distinctive character, but disputed the Board of Appeal’s assessment that the earlier mark is an invented word and is highly distinctive. In the appellant’s submission, it is not an invented word since it is derived from the word ‘beat’. It deduces from that that the General Court erred by not accepting an argument which had not been put forward. 38 According to You-Q, the General Court’s finding that OHIM correctly observed that the marks THE BEATLES and BEATLES do not merely refer to the English word ‘beat’, but combine the words ‘beat’ and ‘beetle’ in such a way as to create a very distinctive and original combination is therefore unfounded. Likewise, the General Court’s finding that the term ‘beatles’ has acquired its own distinctive character so that, when faced with the earlier marks, the public at large will immediately think of the eponymous group is inconsistent and not based on any evidence. 39 You‑Q also criticises the statement that each mark has an economic value which is independent of and separate from that of the goods and services for which it is registered inasmuch as the protection conferred by Article 8(5) of Regulation No 40/94 is not dissociated from the goods and services for which the mark with a reputation is registered. Furthermore, the appellant takes the view that the General Court applied an interpretation of that provision which was incorrect and too extensive. It states that the judgment in Sigla v OHIM – Elleni Holdings (VIPS), on which the judgment under appeal is based, is contrary to that provision and Intel Corporation and Case C‑487/07 L’Oréal and Others [2009] ECR I-5185. 40 According to You-Q, by stating that, according to the Board of Appeal, the public for which the earlier marks were intended was the public at large, the General Court erred since the Board found, in the contested decision, that ‘the “sound records, video records, films” and merchandising products (such as toys and games), for which the earlier marks enjoy a reputation and are distinctive, are addressed to the public at large.’ 41 You‑Q denies that it maintained that the distinctive character and reputation of the earlier marks had to be examined by reference to the public concerned by the mark applied for, namely a specialist public. 42 According to You-Q, the assessment made by the General Court, in paragraph 35 of the judgment under appeal, with regard to the relevant public, in particular the taking into account of overlaps in the public in assessing the reputation of an earlier mark, is contrary to Intel Corporation (paragraph 47) and to Article 8(5) of Regulation No 40/94. An overlap is not evident from the facts and the goods at issue are so dissimilar that the mark applied for is unlikely to bring the earlier marks to the mind of the relevant public. 43 Furthermore, You-Q submits that the General Court erred in holding that the Board of Appeal was right to find that the requirement of reputation had been satisfied. Apple Corps did not file any evidence to that effect. 44 According to You-Q, the General Court’s assessment regarding the similarity of the signs at issue goes beyond a proper assessment within the framework of Article 8(5) of Regulation No 40/94. It also calls into question the General Court’s finding as regards the required link. 45 Lastly, You-Q disputes the General Court’s assessment of the requirement of Article 8(5) of Regulation No 40/94 that unfair advantage be taken of the distinctive character or the repute of the earlier marks. 46 You-Q states, in this respect, that no evidence regarding the required serious risk was submitted. 47 You-Q also submits that, in view of the difference between the goods in question, no association can be made between the signs at issue on the part of the relevant public. Such an association could not, in any event, establish the necessary link as required, let alone the serious risk of taking unfair advantage. 48 Furthermore, no evidence has been provided of a link between the goods in question, a commercial advantage which You-Q derives from use or the intentional registration of the mark to create an association in the mind of the public with the earlier marks. 49 You‑Q adds that the reasoning that the relevant public, on account of the handicap in question, is attracted to the positive image of the earlier marks does not establish that there is a serious risk of taking unfair advantage. Likewise, it is irrelevant that a part of the public targeted by the goods covered by the mark applied for belongs to the generation of persons who know the goods covered by the earlier marks. 50 Apple Corps submits that the General Court made no error of law or fact. 51 OHIM submits that the appeal is inadmissible in so far as, first, the appellant fails to explain clearly the errors of law made in the judgment under appeal and, secondly, the alleged errors made when applying Article 8(5) of Regulation No 40/94 – with regard to the reputation, the relevant public, the goods covered by the marks at issue and the link necessary for a finding of unfair advantage – in reality concern the assessment of the facts and not questions of law. 52 OHIM thus maintains that, according to the Court, inter alia in an order of 9 July 2010 in Case C‑461/09 P The Wellcome Foundation v OHIM, paragraph 20, and in Case C‑361/04 P Ruiz‑Picasso and Others v OHIM [2006] ECR I‑643, paragraph 23, the definition of the relevant public, the comparison of the signs and the assessment of their similarity are assessments of fact which cannot be reviewed on appeal. Likewise, OHIM takes the view that assessing the reputation of the earlier marks for the relevant public, establishing the nature of the respective goods to assess their similarity, and the global test for ascertaining the link required for a finding of unfair advantage are matters of fact. 53 In the alternative, if the appeal is considered to be admissible, OHIM submits that the appellant’s action is manifestly unfounded. 54 As regards the degree of similarity between the goods in respect of which the marks at issue have been registered and the existence of a link between those marks, OHIM, referring to the case-law of the General Court (Case T‑67/04 Spa Monopole v OHIM – Spa-Finders Travel Arrangements (SPA-FINDERS) ECR II‑1825, paragraph 41, and Sigla v OHIM – Elleni Holdings (VIPS), paragraph 47), submits that an unfair advantage can only occur as the result of a link established in the mind of the public between the later sign and the earlier mark. The existence of that link must be appreciated globally, taking into account all factors relevant to the case and in particular the degree of similarity of the signs, the strength of the earlier mark’s distinctiveness and its reputation. 55 OHIM takes the view, in particular, that the General Court’s finding as to the overlap of the relevant publics is correct. Relying on paragraphs 48 to 53 of Intel Corporation, it states that the public can associate two marks only if it is likely to encounter both of them on the market, either simultaneously or at different times. It adds that the likelihood of association is particularly strong in the present case because the distinctiveness of the earlier marks is very strong. 56 OHIM therefore disputes the appellant’s arguments claiming that a difference in the nature of the goods automatically means that no finding of the requisite link can be made by the relevant public. Findings of the Court 57 It must be pointed out that, although You-Q does not put forward any pleas in support of its appeal, but sets out its criticisms of the judgment under appeal on a linear basis, it is possible to distinguish, in its arguments, those elements relating to the factual assessments made by the General Court from those relating to an alleged infringement of Article 8(5) of Regulation No 40/94. 58 In the first place, therefore, You-Q calls into question (i) the General Court’s reproduction of the background to the dispute and its arguments relating to the distinctive character of the earlier marks and (ii) the General Court’s factual assessments relating to the similarity of the signs at issue, the reputation of the earlier marks, the relevant public, the link which may be established between the mark applied for and the earlier marks, and the unfair advantage taken of the distinctive character or repute of the earlier marks, but without pleading any error of law in the judgment under appeal. 59 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 a point of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts. The appraisal of those facts thus does not, save where the facts are distorted, constitute a point of law subject, as such, to review by the Court of Justice on appeal (see, to that effect, Joined Cases C‑280/99 P to C‑282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78; Case C‑16/06 Les Éditions Albert René v OHIM [2008] ECR I‑10053, paragraph 68; and Case C‑335/09 P Poland v Commission [2012] ECR I‑0000, paragraph 24), bearing in mind that a 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 the evidence (see order of 31 March 2011 in Case C‑433/10 P Mauerhofer v Commission, paragraph 71). 60 Findings relating to the characteristics of the relevant public and its degree of attention, perception or attitude therefore represent appraisals of fact and are not consequently subject to review by the Court of Justice on appeal (see, to that effect, order in The Wellcome Foundation v OHIM, paragraphs 20 and 21). 61 Likewise, the assessment of the reputation of the earlier marks and of the link which the public may make between the mark applied for and the earlier marks constitutes, as OHIM submits, a matter of fact. 62 Lastly, You-Q calls into question the General Court’s assessment of certain items of evidence. Those items of evidence relate to the reputation of the earlier marks and to the existence, first, of a serious risk of taking unfair advantage, secondly, to a link between the goods at issue and, thirdly, to a commercial advantage which You-Q derives from the use of the mark to create an association in the mind of the public with the earlier marks. 63 It must be borne in mind, in that regard, that the Court does not have jurisdiction to re-examine the evidence which the General Court has accepted. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, order in Mauerhofer v Commission, paragraph 70). 64 As it has not been claimed that the facts or the clear sense of the evidence were distorted, You-Q’s arguments must therefore be rejected as manifestly inadmissible. 65 In the second place, You-Q pleads, in essence, infringement of Article 8(5) of Regulation No 40/94 in so far as the General Court held that there was an overlap of publics in spite of a difference between the goods covered by the mark applied for and those covered by the earlier marks. You‑Q takes the view that the absence of similarity between those goods precludes any overlap on the part of the relevant publics. It deduces from this that the public is not able to make any link between the signs at issue and, therefore, that it cannot be established that any unfair advantage was taken of the distinctive character or the repute of the earlier marks. 66 Article 8(5) of Regulation No 40/94 expressly envisages a situation in which an opposition is filed against an application for registration of a mark for goods or services which are not similar to those covered by the earlier marks. 67 The Court has thus pointed out that Article 8(5) of Regulation No 40/94 expressly refers to the situation in which the goods or services are not similar (see, to that effect, judgment of 7 May 2009 in Case C-398/07 Waterford Wedgwood v Assembled Investments (Proprietary) and OHIM, paragraph 34). 68 It must also be pointed out that certain marks may have acquired such a reputation that it goes beyond the relevant public as regards the goods or services for which they were registered and that, in such a case, the relevant section of the public as regards the goods or services for which the later mark is registered may make a connection between the marks at issue, even though that public is wholly distinct from the relevant section of the public as regards the goods or services for which the earlier mark was registered (see, to that effect, Intel Corporation, paragraphs 51 and 52). 69 The General Court was therefore right in holding that the publics overlapped in spite of a difference between the goods covered by the mark applied for and those covered by the earlier marks. Likewise, it could hold, without infringing Article 8(5) of Regulation No 40/94, that, while the goods are quite different, it is not altogether inconceivable that the relevant public could make an association between the signs at issue and that it could be led to transfer the values of the earlier marks to the goods covered by the mark applied for and, therefore, that it was likely that the appellant could take unfair advantage of the repute of the earlier trade marks. 70 It follows that the appellant’s arguments must be rejected as manifestly unfounded. 71 In light of the foregoing, the present appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded. Costs 72 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since You‑Q has been unsuccessful and OHIM and Apple Corps have applied for You‑Q to pay the costs, it must be ordered to pay the costs. On those grounds, the Court (Seventh Chamber) hereby orders: 1. The appeal is dismissed. 2. You‑Q BV shall pay the costs. [Signatures] * Language of the case: English.