ORDER OF THE COURT (Sixth Chamber)
8 November 2016 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of the figurative mark including the word element ‘dino’ — Partial rejection of the opposition)
In Case C‑361/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 29 June 2016,
Franmax UAB, established in Vilnius (Lithuania), represented by E. Saukalas, advokatas,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Ehrmann AG Oberschönegg im Allgäu, established in Oberschönegg (Germany),
intervener at first instance,
THE COURT (Sixth Chamber),
composed of A. Arabadjiev, acting as President of the Sixth Chamber, C.G. Fernlund (Rapporteur) and S. Rodin, Judges,
Advocate General: Y. Bot,
Registrar: A. Calot Escobar,
having regard to the decision taken, after hearing the Advocate General, to give a decision on the action 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, Franmax UAB seeks to have set aside the judgment of the General Court of the European Union of 26 April 2016, Franmax v EUIPO — Ehrmann (Dino) (T‑21/15, not published, ‘the judgment under appeal’, EU:T:2016:241), by which that court dismissed its action seeking annulment of the decision of the Fifth Board of Appeal of EUIPO of 23 October 2014 (Case R 2012/2013-5), relating to opposition proceedings between Ehrmann AG Oberschönegg im Allgäu and Franmax.
2        In support of its appeal, Franmax raises three grounds alleging failure to state reasons in the judgment under appeal, distortion of the facts and infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), respectively.
The appeal
3        Under 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.
4        That article should be applied in the present case.
5        On 9 September 2016, the Advocate General took the following position:
‘For the reasons which I shall discuss below, I propose that the Court should dismiss the appeal brought in Case C‑361/16 P as in part manifestly inadmissible and in part manifestly unfounded and order the appellant to pay the costs, in accordance with Article 137 of the Rules of Procedure.
The first ground of appeal, alleging failure to state reasons in the judgment under appeal
1      By its first ground of appeal, the appellant claims that the General Court did not explain the reasons why there was a low degree of similarity between “coffee”, “cocoa’, “artificial coffee” and “preparations made from cereals” covered by the mark for which registration is sought and falling within Class 30 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, on the one hand, and the “milk and milk products” covered by the earlier mark in Class 29 of the Nice Agreement, on the other.
2      That first ground of appeal, the reasoning for which is moreover vitiated by a contradiction, must from the outset be rejected as being manifestly unfounded.
3      In fact, in paragraphs 26 to 34 of the judgment under appeal, the General Court carried out a detailed, comprehensive analysis relating to the degree of similarity existing between “coffee”, “cocoa” and “artificial coffee” covered by the mark for which registration is sought and “milk and milk products” covered by the earlier mark, answering, in particular, in paragraphs 30 to 33 of the judgment under appeal, the appellant’s arguments.
4      In paragraphs 38 to 40 of the judgment under appeal, the General Court next examined the arguments raised by the appellant as to the lack of similarity between “preparations made from cereals”, covered by the mark for which registration is sought, and “milk and milk products”, covered by the earlier mark, setting out the reasons why the findings of the Fifth Board of Appeal of EUIPO were to be confirmed.
5      Consequently, the General Court’s analysis on that point cannot be vitiated by a lack of reasoning.
The second ground of appeal, alleging a distortion of the facts
6      By its second ground of appeal, the appellant claims that the General Court distorted the facts in its global assessment of the likelihood of confusion between the marks at issue.
7      That ground of appeal comprises two parts.
The first part of the second ground of appeal
8      By the first part of the second ground of appeal, the appellant criticises the General Court for not taking sufficient account of the word element “dino” in the mark for which registration is sought. It maintains, in that regard, that the General Court’s analysis is vitiated by a contradiction. Whereas, in paragraph 72 of the judgment under appeal, the General Court accepted that the word element “dino” stays in the memory of the relevant public and plays an important role in the perception of the mark, in paragraph 80 of the judgment under appeal, it confirmed the conclusion of the Fifth Board of Appeal of EUIPO that that word element did not affect the perception of the mark, strengthening the concept taken from the figurative element.
9      That first part, which appears incomplete, must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
10      It is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, that an appeal brought against a decision of the General Court is limited to points of law and lies on the grounds of lack of jurisdiction of the General Court, a breach of procedure before it which adversely affects the interests of the appellant, or an infringement of EU law by the General Court.
11      So, according to settled case-law of the Court of Justice, appraisal of the facts and assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal (see, inter alia, order of 25 February 2016, Deutsche Rockwool Mineralwoll v OHIM, C‑487/15 P, not published, EU:C:2016:130, paragraph 29).
12      In the present case, as regards the claim that the General Court failed to consider adequately the word element “dino” in the mark for which registration is sought, it is clear that the appellant in fact seeks to call into question the factual assessments made by the General Court without pleading any distortion of the facts by the latter whatsoever. Consequently, examination of such a claim does not fall within the jurisdiction of the Court of Justice.
13      As regards the claim that the General Court’s analysis is vitiated by a contradiction, that claim is unfounded for it is, in fact, based on a misreading of the judgment under appeal.
14      Contrary to what the appellant claims, the General Court did not state, in paragraph 72 of the judgment under appeal, that the word element “dino” will be memorised by the relevant public. In that paragraph, the Court noted that consumers will remember the figurative representation of the dinosaur. Moreover, in paragraph 80 of the judgment under appeal, the General Court did not approve the findings of the Fifth Board of Appeal of EUIPO as to the existence of a likelihood of confusion between the marks at issue, but merely presented the conclusions adopted for that purpose by EUIPO, before setting out, in paragraphs 81 and 82 of the judgment under appeal, the arguments of the appellant, EUIPO and the intervener, and then, in paragraph 83 of the judgment under appeal, making its own legal analysis.
The second part of the second ground of appeal
15      By the second part of the second ground of appeal, the appellant criticises the General Court’s conclusion in paragraph 78 of the judgment under appeal, that the signs are conceptually ‘highly similar’, insofar as they both refer to the concept of a moving dinosaur giving the impression of a friendly, happy creature. In such circumstances, according to the appellant, the General Court ought to have concluded that the signs are conceptually identical. Yet, according to the appellant, the General Court did not explain any conceptual difference between those signs.
16      That second part must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
17      As to the claim that the General Court incorrectly found that the signs at issue were highly similar, it is clear that the appellant again disputes the factual assessments made by the General Court, without showing any distortion whatsoever of the facts by the General Court.
18      Concerning the claim that the General Court did not explain any conceptual difference between the signs at issue, that is based on an incomplete reading of the judgment under appeal, for the General Court set out the differences existing between the signs at issue with a very clear, detailed analysis in paragraphs 65, 66 and 68 to 70 of that judgment, to which it expressly refers in the context of its analysis relating to the conceptual comparison of the signs at issue referred to in paragraphs 76 to 79 of that judgment.
19      It follows that the second ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The third ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
20      By its third ground of appeal, the appellant criticises the General Court for infringing Article 8(1)(b) of Regulation No 207/2009 by not duly carrying out a global assessment of the likelihood of confusion between the marks at issue.
21      That ground of appeal is divided into three parts.
The first part of the third ground of appeal
22      By the first part of the third ground of appeal, the appellant criticises the General Court for incorrectly finding that the glass of milk carried by the dinosaur represented by the earlier mark is a descriptive element of the goods at issue. Admittedly, according to the appellant, a glass of milk clearly alludes to milk, but cannot be an element descriptive of other milk products. The General Court thus committed an error of law, in paragraph 76 of the judgment under appeal, by sharing the conclusions of the Fifth Board of Appeal of EUIPO on that issue.
23      That first part must be rejected as being manifestly inadmissible.
24      The assessment of the descriptive character of a figurative element, such as the glass of milk at issue, is a factual assessment. That assessment does not constitute a question of law subject as such to review by the Court of Justice in the context of an appeal, the appellant not demonstrating or even claiming that that assessment is based on any distortion of the facts or evidence.
25      Moreover, it should be noted that the argument raised by the appellant is based on a misreading of paragraph 76 of the judgment under appeal, in which the General Court merely presented and summarised the conclusions of the Fifth Board of Appeal of EUIPO.
The second part of the third ground of appeal
26      By the second part of the third ground of appeal, the appellant criticises the General Court’s global assessment of the likelihood of confusion.
27      That part is divided into two arguments.
28      By its first argument, the appellant criticises the General Court for failing to take due account, in the global assessment of the likelihood of confusion, of the interdependence of the similarity of the signs at issue and that of the goods covered by those signs. The appellant maintains that, despite the existence of an average degree of similarity between the signs at issue, there is no likelihood of confusion as regards the goods having a low degree of similarity.
29      That argument must be rejected as manifestly inadmissible.
30      It is clear that the appellant seeks once more to call into question the factual findings made by the General Court, without establishing any distortion at all.
31      By its second argument, the appellant submits that the General Court’s analysis of the existence of a likelihood of confusion between the marks at issue is vitiated by defective reasoning. It maintains that the General Court did not examine the overall degree of similarity of the signs at issue or explain why there is a likelihood of confusion in the minds of consumers when the signs, although similar, concern goods with a low degree of similarity.
32      That second argument must be rejected as manifestly unfounded.
33      It should be observed that the General Court made a comprehensive and reasoned examination of the likelihood of confusion existing between the marks at issue.
34      On the one hand, contrary to the appellant’s claim, the General Court set out, in paragraphs 84 to 88 of the judgment under appeal, the reasons why there is a likelihood of confusion between those marks and, in particular, the reasons for which the signs at issue should be regarded as being similar. In that regard, it should be noted that paragraph 85 of the judgment under appeal refers back to paragraphs 65 to 78 of that judgment. In those paragraphs, the General Court carried out the comparison of the signs at issue by examining, in turn, the visual, phonetic and conceptual aspects of those signs. Finally, the General Court examined the global degree of similarity between the signs at issue, and concluded, in paragraph 79 of the judgment under appeal, that the signs at issue must be considered to be similar.
35      On the other hand, the General Court set out the reasons why there is, in the mind of the relevant public, a likelihood of confusion of the marks at issue even if they cover goods with a low degree of similarity.
36      In paragraph 83 of the judgment under appeal, the General Court made a point of recalling the principle guiding any global assessment of the likelihood of confusion, in which a low degree of similarity between the goods may be offset by a greater degree of similarity between the marks, and vice versa.
37      The General Court analysed the visual, phonetic and conceptual similarity of the signs at issue. It was in the context, in particular, of the visual comparison of the signs at issue that the General Court examined the perception of the relevant public, that examination being binding neither in the context of the phonetic comparison of those signs, the earlier figurative mark being devoid of any word elements, as the General Court noted in paragraph 75 of the judgment under appeal, nor in the context of the conceptual comparison of those signs, the appellant having accepted the existence, for the relevant public, of a certain conceptual similarity, as the General Court held in paragraph 77 of that judgment. In paragraph 69 of the judgment under appeal, the General Court set out the reasons why the minor differences found between the dinosaur represented in the earlier mark and the one represented in the mark for which registration is sought do not enable consumers to distinguish between the marks at issue. Then, in paragraph 72 of the judgment under appeal, the General Court explained the reasons why the word element “dino” in the mark for which registration is sought does not enable the relevant public to distinguish between the two marks at issue either.
38      In the light of those factors, the second part of the third ground of appeal must therefore be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The third part of the third ground of appeal
39      By the third part of the third ground of appeal, the appellant criticises the General Court for failing to take due account, in the context of its global assessment of the likelihood of confusion, of the distinctive character of the word element “dino”. The appellant also criticises the General Court for failing to explain, in paragraph 80 of the judgment under appeal, why that word element would strengthen the concept inferred from the figurative element.
40      That part must be rejected as in part manifestly inadmissible and in part manifestly unfounded.
41      As regards the claim that the word element “dino” has its own distinctive character, it is clear that the appellant in reality repeats the criticism it made earlier in support of its first ground of appeal. Consequently, and for the same reasons as those already set out in paragraph 12 of the present judgment, that claim is inadmissible.
42      As far as the claim that the judgment under appeal is, in that regard, vitiated by defective reasoning is concerned, that claim must be rejected as manifestly unfounded in so far as it once again rests on a misreading of that judgment, the General Court having set out, in paragraph 80 thereof, the conclusions of the Fifth Board of Appeal of EUIPO.
43      It follows that the third ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
44      In the light of all those considerations, the appeal brought by Franmax must therefore be dismissed and the latter be ordered to pay the costs incurred in the proceedings, in accordance with Article 137 of the Rules of Procedure.’
6        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
7        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the other parties and therefore before they could have incurred costs, Franmax must be ordered to bear its own costs.
On those grounds, the Court (Sixth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Franmax UAB shall bear its own costs.
Luxembourg, 8 November 2016.
A. Calot Escobar
A. Arabadjiev
Registrar
President of the Sixth Chamber
* Language of the case: English.