ORDER OF THE COURT (Sixth Chamber)
19 June 2014 (*)
(Appeal — Community trade mark — Application for Community word mark BOOMERANG — Earlier Community figurative mark Boomerang TV — Relative ground for refusal — Likelihood of confusion)
In Case C‑670/13 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 December 2013,
The Cartoon Network Inc., established in Wilmington (United States), represented by I. Starr, Solicitor,
appellant,
the other parties to the proceedings being:
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),
defendant at first instance,
Boomerang TV SA, established in Madrid (Spain),
intervener at first instance,
THE COURT (Sixth Chamber),
composed of A. Borg Barthet (Rapporteur), President of the Chamber, E. Levits and F. Biltgen, Judges,
Advocate General: J. Kokott,
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,
makes the following
Order
1        By its appeal The Cartoon Network Inc. (‘Cartoon Network’) seeks to have set aside the judgment of the General Court of the European Union in Cartoon Network v OHIM, T‑285/12, EU:T:2013:520 (‘the judgment under appeal’) dismissing its action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 2 April 2012 (Case R 699/2011-2), concerning opposition proceedings between Boomerang TV SA and Cartoon Network (‘the contested decision’).
Legal context
2        Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) has been repealed and replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. However, in view of the date on which the trade mark application in question was submitted, the present dispute remains governed by Regulation No 40/94, as amended by Council Regulation (EC) No 422/2004 of 19 February 2004 (OJ 2004 L 70, p. 1) (‘Regulation No 40/94’).
3        Article 8(1)(b) of Regulation No 40/94, entitled ‘Relative grounds for refusal’, provides:
‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:
…
(b)      if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.’
Background to the dispute
4        On 19 October 1999, pursuant to Regulation No 40/94, Cartoon Network filed an application for registration of a Community trade mark at OHIM.
5        The mark in respect of which registration was sought is the word sign ‘BOOMERANG’.
6        The services in respect of which registration was sought are in Classes 38 and 41 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended (‘the Nice Agreement’), and correspond to the following description:
–        Class 38: ‘Cable and television broadcasting services; broadcasting programmes directed to children and young adults via a global computer network’;
–        Class 41: ‘Entertainment services, namely a series of television and cable television programmes targeted primarily to children and young adults’.
7        The Community trade mark application was published in Community Trade Marks Bulletin No 2000/088 of 6 November 2000.
8        On 21 November 2000, Mr Ricote Saugar and Mr Abril Sanchez filed a notice of opposition, pursuant to Article 42 of Regulation No 40/94, to registration of the mark applied for in respect of all the services referred to in the application for registration.
9        The opposition was based, inter alia, on the Community figurative mark depicted below, filed on 3 May 1999 and registered as No 1 160 050 on 23 October 2009 for ‘cinema and recording studios, hire of videos, competitions (recreation), installation of televisions and radios, production of films’ in Class 41 of the Nice Agreement (‘the earlier trade mark’):
10      The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 40/94.
11      On 16 January 2008, the earlier trade mark was transferred to Boomerang TV SA.
12      By decision of 26 January 2011, the Opposition Division concluded that there was a likelihood of confusion and upheld the opposition.
13      On 25 March 2011, Cartoon Network lodged an appeal with OHIM against the Opposition Division’s decision.
14      By the contested decision, the Second Board of Appeal of OHIM dismissed the appeal. It considered that the relevant public consisted of both professionals and the general public throughout the territory of the European Union. The Board of Appeal considered that there was a degree of similarity between the services in Classes 38 and 41 of the Nice Agreement covered by the mark applied for and the ‘production of films’ services in Class 41 of that agreement covered by the earlier trade mark. It concluded that, as the signs at issue were similar, there was a likelihood of confusion for the purposes of Article 8(1)(b) of Regulation No 40/94, even though certain consumers might have a higher than average level of attention. Moreover, according to the Board of Appeal, the new evidence adduced by Cartoon Network did not demonstrate the peaceful coexistence on the market of the marks at issue.
Procedure before the General Court and the judgment under appeal
15      By application lodged at the Registry of the General Court on 28 June 2012, Cartoon Network brought an action for annulment of the contested decision.
16      In support of its action, Cartoon Network raised a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 40/94.
17      Having referred to the case-law concerning the relevant public in paragraph 19 of the judgment under appeal as part of its assessment of the likelihood of confusion, the General Court found, in paragraph 20 of that judgment, that some of the services covered by the earlier trade mark — such as ‘cinema and recording studios’ — were intended for professionals, and that others — such as ‘hire of videos’ — were intended for the general public. With regard to the services covered by the mark applied for, the General Court held, in essence, that those were programme broadcasting services addressed to both the general public and a specialised public, adding that Cartoon Network had not put forward any argument to substantiate its assertion that the only audience for the services covered by the mark applied for would be television viewers.
18      Next, the General Court observed, in paragraphs 21 to 23 of the judgment under appeal, that the only services covered by the earlier trade mark that were taken into consideration by the Board of Appeal in its comparison of the services covered by the marks at issue were film production services. According to the General Court, such services are ‘aimed solely at professionals in the audiovisual sector’, although they do ‘also target the general public’ in so far as the general public watches the films produced by those professionals.
19      The General Court thus considered that the relevant public had to consist of the persons at whom the services in question were directly aimed, consequently ruling, in paragraph 25 of the judgment under appeal, that the Board of Appeal should have assessed the likelihood of confusion solely with regard to professionals in the audiovisual sector.
20      Regarding the comparison of the services in question for the purposes of assessing the similarities between them, the General Court found, in paragraph 28 of the judgment under appeal, that the ‘earlier mark relates, in particular, to film production services[, whereas the] mark applied for relates to broadcasting services via cable, television or the Internet’. It also stated, in paragraph 30 of that judgment, that the Board of Appeal had rightly observed that ‘film production services and broadcasting services [were] often carried out by the same undertakings, which act as both producer and broadcaster’. The General Court pointed out that that was the case for many television channels in Europe, and that the example of the BBC given by the Board of Appeal was relevant.
21      The General Court thus ruled, in paragraph 35 of the judgment under appeal, that the Board of Appeal had been right to take the view that the services in Classes 38 and 41 of the Nice Agreement covered by the mark applied for and the ‘production of films’ services in Class 41 of that agreement covered by the earlier trade mark had a degree of similarity. In that regard, the General Court rejected, inter alia, in paragraph 38 of that judgment, Cartoon Network’s argument relating to the perception of the services in question by television viewers — in particular children and young adults — since it had been found in paragraph 25 of that judgment that they were not part of the relevant public in the present case.
22      Regarding the comparison of the signs in question, in paragraph 40 of the judgment under appeal the General Court observed that Cartoon Network did not dispute the Board of Appeal’s findings relating to the similarity of the marks at issue. The General Court therefore ruled that, owing to a strong similarity between the marks at issue and a similarity between the services in question, there was a likelihood of confusion for professionals between those marks and the services for which they were used. Accordingly, it dismissed the action in its entirety.
Form of order sought before the Court of Justice
23      By its appeal, Cartoon Network claims that the Court should:
–        set aside the judgment under appeal and annul the contested decision;
–        in the alternative, set aside the judgment under appeal and refer the case back to the General Court, and
–        order OHIM to pay the costs.
Appeal
24      Pursuant to Article 181 of its Rules of Procedure, where an 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.
25      Cartoon Network raises three grounds in support of its appeal.
First ground of appeal
Arguments
26      By its first ground of appeal, Cartoon Network complains that the General Court infringed Articles 36 and 53 of the Statute of the Court of Justice of the European Union, in that it did not provide a proper statement of reasons in the judgment under appeal for concluding, in paragraph 25 of that judgment, that the relevant public consisted solely of ‘professionals’.
Findings of the Court
27      It should be borne in mind that, according to settled case-law, the obligation to state reasons owed by the General Court requires it to disclose its reasoning clearly and unequivocally, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, to that effect, judgment in Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraphs 135 and 136, and 3F v Commission, C‑646/11 P, EU:C:2013:36, paragraph 63).
28      In the present case, the General Court first of all made reference, in paragraph 19 of the judgment under appeal, to the case-law pursuant to which the relevant public for the assessment of the likelihood of confusion between two marks at issue is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for.
29      It then found in paragraph 20 of that judgment that some of the services covered by the earlier trade mark were intended for professionals and that others were intended for the general public. Regarding the services covered by the mark applied for, the General Court observed that those services were programme broadcasting services addressed to the general public and a specialised public and held that Cartoon Network had not put forward any argument to substantiate its assertion that the only audience for the services covered by the mark applied for would be television viewers.
30      The General Court also observed, in paragraphs 21 and 22 of the judgment under appeal, that only the film production services covered by the earlier trade mark and intended solely for professionals in the audiovisual sector were taken into consideration by the Board of Appeal when it compared the services covered by the marks at issue. The General Court held that although the general public watches the films produced, it does not itself use film production services, although those services might be provided to, inter alia, broadcasters who, in turn, are influenced by the general public. Thus, the General Court concluded, in paragraph 23 of that judgment, that the relevant public for the assessment of the likelihood of confusion consisted of the audience for the services in question and not of other categories of persons who had only an indirect relationship with the provider of those services.
31      In paragraph 24 of the judgment under appeal, the General Court concluded that the Board of Appeal had erred in law in taking the view that the services covered by the earlier trade mark were also addressed to the general public. Consequently, in accordance with the case-law, it ruled, in paragraph 25 of that judgement, that the relevant public to be taken into consideration consisted of professionals.
32      It follows from the foregoing that the General Court did provide a proper statement of reasons for the part of its assessment relating to the determination of the relevant public, allowing the Court to exercise its power of review.
33      Accordingly, the first ground of appeal must be rejected as being manifestly unfounded.
Second ground of appeal
Arguments
34      By its second ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 40/94, Cartoon Network primarily submits that the General Court distorted the facts relating to determining the relevant public. It claims that the General Court distorted the Community trade mark application by concluding in paragraphs 25 and 38 of the judgment under appeal that the services referred to in that application are addressed to professionals, whereas it is clear from the description of those services that the relevant public consists of children and young adults. There are in fact two different relevant publics for the services covered by the marks at issue and there is no overlap whatsoever between those two publics.
35      In the alternative, Cartoon Network argues that, even assuming that the General Court’s determination of the relevant public is correct, that Court was wrong to conclude that there was a likelihood of confusion between the two marks at issue, since — by reason of their higher level of attention — professionals could not have confused those marks.
Findings of the Court
36      Regarding the principal argument raised, it should be borne in mind that, according to case-law, there is a distortion of the facts where, without there being any need for new evidence, an assessment of the facts made by the General Court appears to be manifestly incorrect (see, to that effect, PKK and KNK v Council, C‑229/05 P, EU:C:2007:32, paragraph 37, and General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraph 54).
37      In the present case, it is clear that the appellant’s argument is based on a manifestly incorrect reading of the judgment under appeal.
38      First, having referred to the relevant case-law in paragraph 19 of the judgment under appeal, the General Court analysed, in paragraph 20 of that judgment, which public was the intended target of the services covered by the mark in respect of which registration was sought, taking into consideration each of the services described by Cartoon Network in its trade mark application, namely ‘cable and television broadcasting services’ and ‘broadcasting programmes directed to children and young adults via a global computer network’ in Class 38 of the Nice Agreement and ‘entertainment services, namely a series of television and cable television programmes targeted primarily to children and young adults’ in Class 41 of that agreement.
39      Secondly, as can be seen from paragraph 30 above, of the services covered by the earlier trade mark, only film production services, which are intended solely for professionals in the audiovisual sector, were taken into consideration by the Board of Appeal of OHIM.
40      Therefore, in accordance with the case-law cited in paragraph 19 of the judgment under appeal, the General Court did not distort the facts relating to determining the relevant public in finding, in paragraph 25 of that judgment, that the common relevant public for the two marks at issue for the purposes of assessing whether there was a likelihood of confusion between those marks consisted of professionals.
41      Nor, therefore, did the General Court err in law in ruling in paragraph 38 of the judgment under appeal that children and young adults were not part of the relevant public in the present case, that is, for the purposes of assessing whether there was a likelihood of confusion between the two marks at issue.
42      Regarding the argument raised in the alternative, it must be stated that Cartoon Network raises that argument without indicating which of the points in the grounds of the judgment under appeal it is contesting in that regard.
43      On that subject, Article 169(2) of the Rules of Procedure of the Court of Justice provides that the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested.
44      Thus, an appeal that does not have such characteristics cannot be the subject of a legal assessment which would allow the Court to exercise its function in the area under examination and to carry out its review of legality (order in Thesing and Bloomberg Finance v ECB, C‑28/13 P, EU:C:2014:230, paragraph 28 and the case-law cited).
45      Besides, the rule laid down in Article 169(2) of the Rules of Procedure makes it possible for equality between litigants to be maintained in so far as the admissibility of an appeal cannot turn on whether or not the Court is able easily to identify the contested points in the grounds of a judgment under appeal, since identifying such points depends on contingent factors, such as the length of the judgment under appeal, the length of the appeal itself, the number of grounds of appeal and the complexity of the reasoning in both the judgment under appeal and the appeal itself.
46      In those circumstances, the second ground of appeal must be rejected as being in part manifestly unfounded and in part manifestly inadmissible.
Third ground of appeal
Arguments
47      By its third ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 40/94, Cartoon Network complains that the General Court erred in law in finding that the services covered by the earlier trade mark were similar to those covered by the mark in respect of which registration was sought. By the first part of the third ground, Cartoon Network submits that the General Court erred in its assessment of the nature of the relevant public in paragraph 38 of the judgment under appeal and distorted the facts in that regard.
48      The second part of that ground concerns the infringement of Article 73 of Regulation No 40/94, pursuant to which decisions of OHIM are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. Cartoon Network claims, in that regard, that the assessment carried out by the General Court in paragraph 30 of the judgment under appeal should not have been based on the example of the BBC, since, by taking that example into consideration, the Board of Appeal infringed that provision.
Findings of the Court
49      It must be stated that the first part of the third ground of appeal is based on the premiss that the General Court distorted the description of the services provided in the trade mark application.
50      However, as can be seen from the analysis of the second ground of appeal, the General Court did not distort the facts in that regard. It follows that the first part of the third ground of appeal must be rejected as being manifestly unfounded.
51      Concerning the second part of the third ground of appeal, in so far as Cartoon Network is using that part to criticise the contested decision, it should be borne in mind that, according to settled case-law, arguments in an appeal which criticise the decision whose annulment was applied for before the General Court, rather than the judgment delivered by the General Court following that application for annulment, are inadmissible (see order in Abbott Laboratories v OHIM, C‑21/12 P, EU:C:2013:23, paragraph 86, and order in Evropaïki Dynamiki v EEA, C‑462/10 P, EU:C:2012:14, paragraph 36).
52      In so far as Cartoon Network is using the second part of the third ground of appeal to criticise the General Court for relying on the example of the BBC, it is sufficient to state that that point is being raised for the first time at the appeal stage.
53      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, whose jurisdiction in appeals is limited, a dispute of wider ambit than that which came before the General Court. In an appeal the Court’s jurisdiction is confined to review of the findings of law on the pleas argued before the General Court (see, in particular, Glencore and Compagnie Continentale v Commission, C‑24/01 P and C‑25/01 P, EU:C:2002:642, paragraph 62 and the case-law cited).
54      As the second part of the third ground of appeal must be rejected as being manifestly inadmissible, that ground must, accordingly, be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
55      It follows from all of the foregoing that the appeal must be dismissed in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible.
Costs
56      Under Article 137 of the Rules of Procedure, 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.
57      Since Cartoon Network has been unsuccessful, it must be ordered to pay the costs.
On those grounds, the Court (Sixth Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders The Cartoon Network Inc. to pay the costs.
[Signatures]
* Language of the case: English.