ORDER OF THE COURT (Seventh Chamber)
25 September 2019(*)
(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Invalidity proceedings — Word mark EM — Regulation (EC) No 207/2009 — Article 7(1)(c) — Grounds for invalidity — Word mark which consists exclusively of signs or indications which may serve to designate the characteristics of goods or services — Trade mark consisting of an abbreviation)
In Case C‑728/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 November 2018,
EM Research Organization, Inc., established in Okinawa (Japan), represented by J. Liesegang and N. Lang, Rechtsanwälte,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Christoph Fischer GmbH, established in Stephanskirchen (Germany),
Ole Weinkath,
residing in Hünxe-Drevenack (Germany),
Multikraft Produktions- und Handels GmbH, established in Pichl/Wels (Austria),
Phytodor AG, established in Buochs (Switzerland), represented by M. Kinkeldey and M. Peters, Rechtsanwälte, and by J. Rosenhäger, Rechtsanwältin,
interveners at first instance,
THE COURT (Seventh Chamber),
composed of T. von Danwitz, President of the Chamber, C. Vajda and P.G. Xuereb (Rapporteur), Judges,
Advocate General: G. Hogan,
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, EM Research Organization, Inc. seeks to have set aside the judgment of the General Court of the European Union of 25 September 2018, EM Research Organization v EUIPO — Christoph Fischer and Others (EM) (T‑180/17, not published, EU:T:2018:591) (‘the judgment under appeal’), by which that court dismissed its action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO), of 9 January 2017 (Case R 2442/2015-1), relating to invalidity proceedings between, on the one hand,
Christoph Fischer GmbH, Ole Weinkath, Multikraft Produktions- und Handels GmbH and Phytodor AG, and, on the other hand, EM Research Organization (‘the contested decision’).
The appeal
2        Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, 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.
3        It is appropriate to apply that provision in the present case.
4        On 22 May 2019, the Advocate General adopted the following position:
‘1.      By its appeal, the appellant, EM Research Organization, seeks to have set aside the judgment under appeal, by which the General Court dismissed its action seeking the annulment of the contested decision, which confirmed
the decision of the Cancellation Division relating to invalidity proceedings between, on one hand, Christoph Fischer, Ole Weinkath, Multikraft Produktions- und Handels and Phytodor and, on the other hand, EM Research Organization.
2.       In the contested decision, the First Board of Appeal, at the outset, declared an additional statement of grounds and a market survey submitted by the appellant
to be inadmissible by reason of the fact that they were lodged out of time. On the substance, the First Board of Appeal confirmed the decision of the Cancellation Division on the ground, first, that there was ample evidence proving that the word mark EM (“the contested mark”) was already, or was capable of being, understood as a descriptive indication for the goods falling within the classes for which protection had been obtained. Under Article 7(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21) (“Regulation No 207/2009”), descriptive marks must be refused registration. Secondly, the First Board of Appeal took the view that the combination of the elements of the contested mark was incapable of performing the function of a trade mark and that, accordingly, the contested mark had to be declared invalid on the basis, this time, of Article 7(1)(b) of Regulation No 207/2009. Lastly, the First Board of Appeal found that, having regard to the descriptive character of the contested mark and its absence of distinctive character, it was unnecessary to examine whether that mark should also be declared invalid on the basis of Article 7(1)(d) of Regulation No 207/2009.
3.      By application lodged at the Registry of the General Court on 17 March 2017, the appellant brought an action for annulment of the contested decision.
4.       By the judgment under appeal, the General Court dismissed the appellant’s action. First of all, the General Court granted EUIPO’s request for the references made by the appellant to the information contained in the additional statement of grounds and the market survey to be declared inadmissible on the ground that, in the application, the appellant had not challenged the fact that the First Board of Appeal had declared those documents to be inadmissible. On the substance, the General Court rejected the first plea raised by the appellant, by which that party challenged, in essence, the contested decision inasmuch as the First Board of Appeal had found that the contested mark fell under the absolute ground for refusal of registration set out in Article 7(1)(c) of Regulation No 207/2009. Taking the view, therefore, that the decision of the First Board of Appeal to confirm the decision of the Cancellation Division was well founded, the General Court did not examine the second plea raised by the appellant, since that plea sought to challenge the assessments made by the Board of Appeal in relation to the absolute ground for refusal of registration set out in Article 7(1)(b) of Regulation No 207/2009.
5.      By application lodged at the Registry of the Court of Justice on 22 November 2018, the appellant brought an appeal against the judgment under appeal. In support of that appeal, the appellant
has raised two grounds alleging, first, infringement of Article 76(2) of Regulation No 207/2009, read in conjunction with Rule 50(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1) and, secondly, infringement of Article 7(1)(c) of Regulation No 207/2009.
6.      For the reasons which I will set out below, I propose that the Court dismiss the appeal
on the basis of
Article 181 of the Rules of Procedure of the Court of Justice as being, in part, manifestly inadmissible and, in part, manifestly unfounded, and rule that EM Research Organization
is to bear its own costs, in accordance with Article 137 of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof.
The first ground of appeal
7.      The appellant claims that the General Court misinterpreted its application at first instance and subsequently
omitted to rule by holding, in paragraph 19 of the judgment under appeal, that the appellant had not challenged the decision of the First Board of Appeal to declare inadmissible the market survey. The applicant claims first that, under the first plea in the action, it advanced that, contrary to the conclusions reached by the First Board of Appeal, the assessment of the relevant public made in the market survey was correct and it requested that the market survey be taken into consideration. Secondly, at the hearing, it expressly requested that that survey be taken into account.
8.      In that regard, it must be recalled that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure of the General Court, the application at first instance must contain a brief statement of the pleas in law on which the application is based. According to consistent case-law, in order to guarantee legal certainty and the sound administration of justice, that summary of the applicant’s pleas in law must be sufficiently clear and precise to enable the defendant to prepare its defence and the competent Court to rule on the action (see, to that effect, order of 21 January 2016, Internationaler Hilfsfonds v Commission, C‑103/15 P, not published, EU:C:2016:51, paragraph 33).
9.      In the present case it must be stated that, under its first plea at first instance, the appellant did not put forward any arguments alleging that the First Board of Appeal, in declaring inadmissible the market survey, vitiated its decision by an unlawful act. Admittedly, in the context of its second plea at first instance, the appellant claimed that that Board had ignored the market survey. However, such a cryptic claim does not meet the requirements of clarity and precision following from Article 76(d) of the Rules of Procedure of the General Court, in order to be regarded as constituting a statement of a plea.
10.      Given that it must therefore be found that it was not expressly apparent from EM Research Organization’s application that that party intended to raise a plea alleging that the First Board of Appeal had incorrectly held that the market survey was inadmissible, EM Research Organization cannot maintain that the General Court misinterpreted its application in holding that it had not challenged the inadmissibility of that survey.
11.      In those circumstances, the
appellant cannot reasonably argue
either that, at the hearing before the General Court, it had requested that that market survey be taken into account. Under Article 84 of the Rules of Procedure of the General Court, the introduction of a new plea in the course of the proceedings, which does not result from matters of law or of fact which came to light after the action had been brought, is prohibited.
12.      In the alternative, the appellant claims that the General Court should have found that the contested decision was vitiated by an error of law consisting in the fact that the First Board of Appeal incorrectly held that Article 76(2) of Regulation No 207/2009 obliged it to dismiss the market survey as inadmissible whereas that provision, read in conjunction with Rule 50(1) of Regulation No 2868/95 left it a discretion as to whether to decide to do so.
13.      Given that, as it has just been noted, it was not explicit from EM Research Organization’s application that that party intended to raise a plea alleging that the First Board of Appeal committed an error of law in holding that the market survey was inadmissible, the appellant cannot criticise the General Court on the grounds that it did not find that such an alleged error of law existed.
14.      According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the findings of law on the pleas argued before the General Court (see, to that effect, judgment of 24 March 2011, ISD Polska and Others, C‑369/09 P, EU:C:2011:175, paragraph 83). Any complaint seeking to criticise the General Court for failing to examine whether a decision complied with provisions of EU law which were not raised before it
must be declared inadmissible (see, by analogy, judgment of 21 February 2008, Commission v Girardot, C‑348/06 P, EU:C:2008:107, paragraph 51).
15.      Even if it were to be assumed that, by its arguments, the appellant is claiming that the General Court was obliged to examine of its own motion whether the decision of the First Board of Appeal to declare inadmissible the market survey was well founded, on the ground that, according to the case-law, the review by the General Court over the decisions of EUIPO’s Boards of Appeal is a full review, such an argument must be rejected as manifestly unfounded.
16.      The concept of “full review” refers to the scope of the review made by the General Court, namely the fact that that court has jurisdiction to review the contested decision in its entirety and, in particular, to review whether the Boards of Appeal have made a correct legal classification of the facts of the dispute or whether their assessment of the facts submitted to them was flawed (see judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 39).
17.      By contrast, that concept does not mean that the General Court can examine of its own motion whether, by declaring inadmissible an offer of evidence, a Board of Appeal rendered its decision unlawful. Thus, even where it carries out a full review, the General Court cannot examine pleas, with the exception of those which are a matter of public policy, other than those raised by the applicant in its application. The existence of a possible error of law in the application of Article 76(2) of Regulation No 207/2009 does not constitute a plea involving a question of public policy.
18.      Consequently, the first ground of appeal must be rejected as manifestly unfounded in its entirety.
The second ground of appeal
The first part
19.      The appellant takes issue with the General Court for failing to ‘determine’ in its judgment objective criteria
concerning the quality and the quantity of the evidence necessary to establish that a registered trade mark, in the form of an abbreviation, is descriptive. It claims that the consequence of the absence of such criteria, first, was that there was a significant risk of a mark incorrectly being refused registration under Article 7(1)(c) of Regulation No 207/2009, thereby depriving an economic operator of the general right to register trade marks consisting merely of letters or a combination of letters, although such a right is expressly provided for in Article 4 of that regulation. Secondly, it claims that the General Court, in the judgment under appeal, did not apply Article 7(1)(c) of that regulation consistently or in a uniform manner.
20.      It must be observed at the outset that it is the task of the General Court to examine the merits of the claims submitted by the parties, and the grounds supporting them, not to deliver abstract opinions on the way in which, in general, the provisions of a measure of EU law must be applied.
21.      Consequently, the fact that the General Court did not “determine” such criteria concerning the quantity and quality of the evidence necessary to establish that an abbreviation is not descriptive does not appear to be such as to constitute an irregularity, except if the statement of such criteria by the General Court was necessary to meet its obligation to state reasons for its decision. However, in the present case, it does not appear that the General Court’s obligation to state reasons for its judgments required it to set out such criteria. The obligation to state reasons requires only that the reasoning followed by the General Court must be clearly and unequivocally shown in such a way as to enable the persons concerned to ascertain the ground or grounds which led to the outcome adopted and to enable the Court to exercise judicial review (see, by analogy, judgment of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741,
paragraph 165), which is not the case in the present instance.
22.      Inter alia, it follows from paragraphs 55 to 59, 62, 74 and 79 of the judgment under appeal that the General Court, in order to hold that the contested mark was descriptive, did not rely on criteria in relation to evidence specific to abbreviations, but observed that the abbreviation ‘EM’ was already commonly used, at the date of registration of the trade mark application, to designate the goods covered by that application. According to that court, that fact was apparent to the requisite legal standard from evidence dated prior to that date, other than the statements annexed to the application for a declaration of invalidity and the information taken from the Wikipedia and Acronym Finder internet sites, those latter items of evidence being purely confirmatory.
23.      Moreover, the General Court did not err in law in holding that it was unnecessary to use criteria specific to abbreviations even though, according to the appellant, in essence, such criteria were necessary in order, first, to balance Article 4 of Regulation No 207/2009 with Article 7(1)(c) thereof and, secondly, to take account of the absence of intrinsic distinctive character of an abbreviation.
24.      In the first place, although Article 4 of Regulation No 207/2009 provides that a straightforward arrangement of letters may constitute an EU trade mark, that provision stipulates that such an arrangement cannot be registered as a mark unless it is capable of distinguishing the goods or services of one undertaking from those of other undertakings. The signs and indications to which Article 7(1)(c) of Regulation No 207/2009 refers, namely those which may serve, in trade, to designate the goods or services covered by the trade mark application or the characteristics of those goods or services, are not capable of enabling goods or services of one undertaking to be distinguished from similar goods and services of other undertakings, since they merely describe the goods or services concerned or their characteristics. It must therefore be inferred from that information that arrangements of letters do not have an unconditional right to be registered as a trade mark but, by implication, their registration remains subject, inter alia, to the condition set out in Article 7(1)(c) of Regulation No 207/2009.
25.      In the second place, although letters, such as those in the present case, forming the abbreviation “EM”, are not generally likely to have an intrinsic meaning and therefore, apart from in special circumstances, are not likely to be descriptive of goods or services, it is consistent case-law that Article 7(1)(c) of Regulation No 207/2009 presupposes that not only the intrinsic meaning of the sign or the indication whose registration as a trade mark is sought is to be taken into account, but also the perception of it on the part of the relevant public (see, to that effect, judgment of 6 December 2018, J. Portugal Ramos Vinhos, C‑629/17, EU:C:2018:988, paragraph 27 and the case-law cited). Consequently, the General Court was able, without erring in law, to rely, as is apparent from paragraph 75 of the judgment under appeal, on the perception which the relevant public had of the abbreviation “EM” at the date of the application for registration in order to hold that that abbreviation
had to be considered to be descriptive, for the purposes of Article 7(1)(c) of Regulation No 207/2009.
26.      Lastly, as regards the argument put forward by the appellant
that the reasoning followed by the General Court lacked consistency, which is impliedly tantamount to pleading contradictory reasoning, it must be rejected as manifestly inadmissible. It follows from Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the elements
which are criticised in the decision which the appellant seeks to have set aside. However, in its appeal, the appellant has not stated which points of the judgment under appeal it claims are vitiated by contradictory reasoning.
27.      Accordingly, the first part of the second ground of appeal must be rejected as, in part, manifestly unfounded and, in part, manifestly inadmissible.
The second part
28.      The appellant claims that in paragraphs 34 to 45 of the judgment under appeal, the General Court erred in law in dividing the relevant public in two. It submits that where, as in the present case, the relevant public is composed of the general public and professionals, it is not open to the General Court to distinguish those two publics, but it is required to refer to the perception of the sign or indication at issue on the part of an average consumer, that is, a consumer who is reasonably well-informed and reasonably observant and circumspect.
29.      However, that second part of the ground of appeal is based on a misreading of the judgment under appeal. Although, in paragraph 44 of the judgment under appeal, the General Court found that that relevant public was composed of both, on one hand, “members of the general public with an interest in gardening or who own pets or other animals and[, on the other hand,] professionals”, contrary to the appellant’s claims, that court did not divide that public in two, but referred, as is apparent from paragraphs 45, 59, 61, 75 and 85 of that judgment, to a single relevant public, namely to a consumer paying an average degree of attention. Therefore, the arguments set out by the appellant to support the second part of the second ground of appeal are unfounded.
30.      Even if the appellant is also disputing that the goods or services concerned may interest both professionals and individuals, such an argument must be considered to be inadmissible. Findings relating to the characteristics of the relevant public and its degree of attention, perception or attitude are appraisals of fact. Under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, the appraisal of those facts and the assessment of that evidence 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, to that effect, judgment of 28 February 2019, Groupe Léa Nature v EUIPO, C‑505/17 P, not published, EU:C:2019:157, paragraph 62).
31.      It follows from all of the foregoing considerations that the second part of the second ground of appeal must be rejected as, in part, manifestly inadmissible and, in part, manifestly unfounded.
The third part
32.      The appellant alleges that the General Court, first, in paragraphs 49 to 58 of the judgment under appeal, failed to take into account the fact that, although the group of letters “EM” and the expression “effective microorganisms” to which those letters refer were already used at the date of the application for registration, they were used to refer to the goods of the appellant. Secondly, the appellant submits that, contrary to what it stated in the judgment under appeal, that group of letters and that expression do not describe any combination of useful regenerative microorganisms, but refer to a specific combination of those microorganisms, developed, manufactured and distributed by the appellant.
33.      In that regard, it must be borne in mind that, in accordance with Article 256 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 consequently has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of the facts and the assessment of evidence do not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 30 May 2018, Tsujimoto v EUIPO, C‑85/16 P and C‑86/16 P, EU:C:2018:349, paragraph 42).
34.      Given the exceptional nature of a complaint of distortion of the facts and evidence, the provisions referred to and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice require, in particular, that an appellant indicate precisely the elements alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. Such a distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and evidence (see judgment of 25 July 2018, QuaMa Quality Management v EUIPO, C‑139/17 P, not published, EU:C:2018:608, paragraph 34 and the case-law cited).
35.      In the present case, it must be noted that the issue of whether the group of letters “EM” and the expression “effective microorganisms” describe any combination of useful regenerative microorganisms or refer to a specific combination of those microorganisms is a factual assessment which, consequently, falls outside the scope of Court of Justice’s review. In addition, in so far as the appellant’s claims that the General Court distorted the facts relate to that issue, the arguments that the appellant
expounds in support of those claims neither allow the specific elements
which the General Court allegedly distorted to be identified nor show the errors of assessment allegedly committed by it. Consequently, those arguments do not meet the requirements resulting from the case-law cited in point 34 of the present position.
36.      On the other hand, the claim that the General Court did not take into account the fact that, although the arrangement of letters “EM” and the expression “effective microorganisms” to which those letters refer were already used at the date on which the application for registration of those letters was filed, they were used to refer to the appellant’s goods, must be considered to be admissible. Such an argument does not call into question the findings of fact made by the General Court, but effectively criticises the General Court for an erroneous application of Article 7(1)(c) of Regulation No 207/2009, inasmuch as it claims that the General Court failed to take into account a fact which was allegedly decisive (see, by analogy, judgment of 16 January 2019, Poland v Stock Polska and EUIPO, C‑162/17 P, not published, EU:C:2019:27, paragraphs 36 to 38).
37.      Such an argument must however be rejected as unfounded. As it has already been pointed out, the assessment of whether or not a sign or an indication is descriptive presupposes that the perception of that sign or indication on the part of the relevant public is taken into account. That perception may indeed be the result of the way in which the trade mark applicant has previously “communicated” with regard to his goods or services, since such communication, so far as concerns,
as in the present case,
an abbreviation,
may have led to the phenomenon of antonomasia, and have done so even before the mark was registered. Consequently, the fact that an abbreviation
was used at the date of the application for registration to refer to the trade mark applicant’s goods does not seem to be such as to prevent
that abbreviation from being perceived on the part of the relevant public at that date as descriptive of the goods or services covered.
38.      In those circumstances, the third part of the second ground of appeal must be rejected as in part manifestly inadmissible and in part manifestly unfounded.
The fourth part
39.      The appellant claims that the General Court erred in law by relying, in paragraphs 52 to 58 of the judgment under appeal, in order to hold that the contested mark was descriptive, on the use made of the abbreviation “EM” and of the expression “effective microorganisms”. In addition, it submits, as is apparent, by analogy, from the judgment of 12 February 2004, Koninklijke KPN Nederland (C‑363/99, EU:C:2004:86, paragraph 58), that
for the registration of a sign or an indication to be refused, it is necessary that the characteristics of the goods or services covered cannot be described otherwise than by using that sign or that indication. In the present case, the goods covered could be described using other words.
40.      In this connection, it must again be pointed out that in order to determine whether a sign or an indication is descriptive for the purposes of Article 7(1)(c) of Regulation No 207/2009, account must be taken of the perception of that sign or indication on the part of the relevant public for the goods or services concerned.
41.      Given that that perception may be determined by the use which was made, before the application for registration, of that sign or indication, the General Court could, without erring in law, refer, in paragraphs 55 and 58 of the judgment under appeal, to the fact that, at the relevant date, use of the abbreviation “EM” in order to designate the goods marketed by the appellant was already widespread.
42.      As regards the argument that, in order for registration of an indication to be refused on the basis of that provision, it is necessary that the characteristics of the goods may not be described otherwise than by using that indication, such an argument must be rejected as without legal foundation. As is apparent from the precise wording of Article 7(1)(c) of Regulation No 207/2009, where the signs or indications at issue may serve to designate the goods or services concerned or the characteristics of those goods, the registration of those signs or indications must be refused.
43.      In that regard, far from calling into question that conclusion, the judgment of the Court of 12 February 2004, Koninklijke KPN Nederland (C‑363/99, EU:C:2004:86), concerning the interpretation of another EU measure on registration at national level of marks but which provided for an analogous ground for the refusal of registration, on the contrary confirms it, since, in paragraph 57 thereof, the Court states that that provision does not require that
if the ground for refusal set out there is to apply, the signs or indications of which the mark is composed must constitute “the only way of designating [the] characteristics [of the goods or services concerned]”.
44.      In those circumstances, the fourth part of the second ground of appeal must be rejected as manifestly unfounded.
The fifth to seventh parts
45.      The appellant essentially takes issue with the General Court for infringing several rules in relation to the taking of evidence and for distorting the clear sense of certain items of evidence.
46.      Thus, in the fifth part of the second ground of appeal, the appellant submits that the General Court, in paragraph 59 of the judgment under appeal, based its decision on the statements attached to the application for a declaration of invalidity, without taking account of the motives of their authors, of the fact that those persons do not represent the relevant public due to there being too few of them, of the fact that the group was chosen by the interveners,
of the fact that they are not representative of the relevant public and of the date of those statements, which postdate by several years the date of the application for registration of the mark concerned.
47.      As regards the sixth part of the second ground of appeal, the appellant claims, first of all, that the General Court distorted the clear sense of the statements attached to the application for a declaration of invalidity by finding that those statements establish that the abbreviation “EM” is an intrinsically descriptive term for the goods covered by the contested mark, since none of those statements indicate that the persons making the statements
perceive that abbreviation as a description of the ingredients or production method, or both, of the goods concerned.
48.      Next, the appellant claims that the General Court erred in law in criticising it, in paragraph 64 of the judgment under appeal, for failing to produce any document capable of disproving
those statements. It was for the interveners to prove the descriptive character of the contested mark and not for the appellant to prove that those facts were false.
49.      Lastly, according to the appellant, the General Court erred in law in finding, in paragraphs 72 to 75 of the judgment under appeal, that items of evidence postdating the date on which the application for registration was filed, such as the statements or publications produced many years after the relevant date, may prove that, at the date
at which the application for registration of that mark was filed, the relevant public recognised the meaning of the letters ‘EM’ and attached to them a descriptive meaning.
50.      In the seventh part, the appellant claims, in essence, that the General Court disregarded the rule that, to be considered an item of evidence, it is necessary that a document was not drafted by the person relying on it, since, in paragraphs 76 to 79 of the judgment under appeal, the General Court accepted that it was possible to rely on information which may be found on the Wikipedia and Acronym Finder internet sites, which cover acronyms and abbreviations, in order to establish that a sign was descriptive in character, even though the information on those sites could have been drafted by the interveners. In any event, if the General Court regarded the information on the Wikipedia internet site as relevant, it should have taken into account the fact that, according to that information, the letters “EM”
constituted a trade mark of EM Research Organization, Inc.
51.      It must be noted with regard to each of those parts
that,
although the appraisal by the General Court of the probative value of the documents before it cannot be challenged before the Court of Justice, the latter nevertheless has jurisdiction to rule on arguments alleging infringement of the rules on the burden of proof and the taking of evidence or that the evidence in the file has been distorted (see judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 26).
52.      As set out, the fifth to seventh parts of the second ground of appeal, and the various arguments relied upon, are tantamount to allegations that the General Court misconstrued the conditions under which an item of evidence may be regarded as credible, or reversed the burden of proof or distorted the clear sense of certain documents in the file. Consequently, those parts of the ground and those arguments must be considered to be admissible.
53.      On the other hand, those parts and the arguments put forward are ineffective. In paragraph 74 of the judgment under appeal, the General Court observed that a large part of the evidence produced was dated prior to the date of the application for registration and it held that that evidence in itself sufficed to establish the descriptive character of the contested mark. Furthermore, in paragraphs 62 and 79 of the judgment under appeal, the General Court stated it considered the statements annexed to the application for a declaration of invalidity and the information on the two internet sites mentioned to be purely confirmatory of the other evidence.
54.      It must therefore be held that, for the purposes of the General Court, the evidence with a date prior to that of the application for registration, not including the statements annexed to the application for a declaration of invalidity filed by the interveners or the information on the Wikipedia and Acronym Finder internet sites, was in itself sufficient to demonstrate that the abbreviation “EM” was perceived by the relevant public at the date of the application for registration as descriptive of the goods and services covered.
The evidence to which the fifth, sixth and seventh parts of the second ground of appeal relate concerns the taking into account by the General Court of the statements annexed to the application for a declaration of invalidity or the abovementioned internet sites, or evidence postdating the date of the application for registration.
55.      As a result, those parts of the second ground of appeal must be rejected as ineffective and therefore, to that effect, as manifestly unfounded.
The eighth part
56.      The appellant claims that the General Court erred in law in failing, in connection with the examination under Article 7(1)(c) of Regulation No 207/2009, to take account of the prior decisions of Boards of Appeal of EUIPO in relation to the contested mark and in holding that it was not bound, in general, by those decisions.
57.      It is sufficient to point out in this connection that, according to consistent case-law, the General Court is not bound by decisions taken by EUIPO (see, inter alia, judgment of 17 July 2014, Reber Holding v OHIM, C‑141/13 P, not published, EU:C:2014:2089, paragraph 57).
58.      The eighth part must therefore be rejected as manifestly unfounded.
The ninth part
59.      According to the appellant, the General Court misinterpreted the conditions for the application of Article 7(1)(c) of Regulation No 207/2009, in holding that merely a few statements and publications could be representative of the target public.
60.      It submits that it follows from a reading of that provision in conjunction with Article 1(2) of that regulation that a sign or indication cannot be refused registration unless it is descriptive of the goods or services at issue from the perspective of a non-negligible part of the target public. In its view, the General Court held to the contrary since, first, it examined exclusively
the perception of the contested trade mark on the part of the German-speaking public
and, secondly, it accepted that 54 statements produced years after the relevant date and a few publications could be sufficient to establish that the contested mark is descriptive.
61.      In that regard, it must be borne in mind that under Article 7(2) of Regulation No 207/2009, paragraph 1 of that article is to apply notwithstanding that the grounds of non-registrability obtain in only part of the European Union. It follows that, inter alia, a mark must be refused registration even if it is descriptive of the goods or services concerned only in one of the official languages of the European Union (see, to that effect, judgment of 19 September 2002, DKV v OHIM, C‑104/00 P, EU:C:2002:506, paragraph 40).
62.      In those circumstances, even if the General Court concluded that the contested decision was founded on the sole basis of an analysis of the perception of the contested mark on the part of the German-speaking relevant public, such an approach would not be contrary to Article 7(1)(c) of Regulation No 207/2009.
63. So far as concerns the issue of whether the evidence accepted by the General Court was sufficient to prove that the contested mark was descriptive, that is a
factual consideration and as such does not fall within the scope of the Court of Justice’s jurisdiction in appeal proceedings.
64.      It follows that the ninth part of the second ground of appeal must be rejected as, in part, manifestly inadmissible and, in part, manifestly unfounded and, accordingly, the second ground of appeal must be rejected in its entirety.
Conclusions
65.      In the light of all of the foregoing considerations, the present appeal must be dismissed in its entirety as, in part, manifestly inadmissible and, in part, manifestly unfounded. As a result, EM Research Organization must bear its own costs, in accordance with 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.’
5        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
6        Under Article 137 of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since in this case the present order has been adopted before the appeal was served on the other parties and, consequently, before those parties could have incurred costs, it must be held that the appellant is 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.      EM Research Organization, Inc. shall bear its own costs.
Luxembourg, 25 September 2019.
A. Calot Escobar
T. von Danwitz
Registrar
President of the Seventh Chamber
*      Language of the case: English.