ORDER OF THE COURT (Ninth Chamber)
2 May 2019 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Invalidity proceedings — International registration designating the European Union — Figurative mark NUIT PRECIEUSE — Rejection of the application for a declaration of invalidity)
In Case C‑739/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 28 November 2018,
Chefaro Ireland DAC, established in Dublin (Ireland), represented by P. Maeyaert and J. Muyldermans, advocaten,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Laboratoires M&L SA, established in Manosque (France),
intervener at first instance,
THE COURT (Ninth Chamber),
composed of K. Jürimäe, President of the Chamber, D. Šváby (Rapporteur) and S. Rodin, 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 of Justice,
makes the following
Order
1        By its appeal, Chefaro Ireland DAC asks the Court to set aside the judgment of the General Court of the European Union of 12 September 2018, Chefaro Ireland v EUIPO — Laboratoires M&L (NUIT PRECIEUSE) (T‑905/16, not published, ‘the judgment under appeal’, EU:T:2018:527), dismissing its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 October 2016 (Case R 2596/2015-4) relating to invalidity proceedings between Chefaro Ireland and Laboratoires M&L.
2        In support of its appeal, the appellant relies on a single ground of appeal, alleging errors of law vitiating the General Court’s application of Article 8(1)(b) of Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).
The appeal
3        Under Article 181 of its Rules of Procedure, 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 provision must be applied in the present case.
5        On 8 March 2019, the Advocate General took the following position:
‘1.      For the reasons set out below, I propose that the Court should dismiss the appeal in the present case as being, in part, manifestly inadmissible and, in part, manifestly unfounded, pursuant to Article 181 of the Rules of Procedure of the Court.
2.      In support of its appeal, the appellant raises a single ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, divided into three parts. By the first part of that ground, the appellant criticises the General Court for ruling out any likelihood of confusion of the earlier national word mark EAU PRÉCIEUSE and the word sign “NUIT PRÉCIEUSE”, registration of which as an EU trade mark is sought, based on the conceptual dissimilarity of the marks in question. By the second part of that ground, the appellant submits that the General Court failed to state sufficient reasons in connection with the conceptual comparison of the signs in question and erred in its interpretation of that provision. By the third part of the ground, the appellant criticises the General Court for rejecting as inadmissible the appellant’s reasoning relating to the global assessment of the evidence due to its being insufficiently detailed and vitiating the judgment under appeal by failing to state sufficient reasons in that regard.
The first part of the single ground of appeal, alleging incorrect application of the “rule of conceptual neutralisation”
3.      In the first part of its single ground, the appellant criticises the General Court for erring in law in having considered that the conceptual dissimilarity alone of the signs in question ruled out the existence of a likelihood of confusion between the signs. It maintains that that assessment is incompatible with the global assessment of the likelihood of confusion carried out pursuant to Article 8(1)(b) of Regulation No 207/2009, read in conjunction with Article 1 of Protocol No 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. According to the appellant, the rule of “neutralisation” of the phonetic and visual similarities by conceptual differences, for the purpose of ruling out any likelihood of confusion, is not applicable in the present case, since the signs at issue have an average or high degree of visual and phonetic similarity and the goods concerned are identical or highly similar. The General Court thus applied the “neutralisation” rule in an automatic and absolute manner without examining the grounds on which and the extent to which the conceptual differences between the signs at issue were sufficient to counteract the phonetic and visual similarities between those signs. The General Court, in the appellant’s view, therefore applied that rule in such a way as to reject the global assessment of the likelihood of confusion and the interdependence of the similarity of the signs and that of the goods.
4.      Admittedly, according to settled case-law, the global assessment of the likelihood of confusion must, as regards the visual, phonetic or conceptual similarity of the marks in question, be based on the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components (judgment of 16 January 2019, Poland v Stock Polska and EUIPO, C‑162/17 P, not published, EU:C:2019:27, paragraph 41 and the case-law cited).
5.      The first part of the single ground of appeal is, however, based on an incorrect reading of the judgment under appeal. In the first place, the General Court carried out such a global assessment of the likelihood of confusion, as is apparent from paragraphs 71 and 73 of the judgment under appeal.
6.      In the second place, in having stated, in paragraph 72 of the judgment under appeal, that “the signs are not conceptually similar and that factor, by itself, [weighed] against the existence of a likelihood of confusion”, the General Court, in accordance with the case-law of the Court of Justice, inter alia in paragraph 42 of the judgment of 16 January 2019, Poland v Stock Polska and EUIPO (C‑162/17 P, not published, EU:C:2019:27), did not restrict itself to taking just one component of a composite trade mark and comparing it with another mark, but based its assessment on the fact that conceptual differences between two signs can counteract phonetic and visual similarities between them, provided that at least one of those signs has a clear and specific meaning for the relevant public, so that that public is capable of grasping it immediately (judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 98 and the case-law cited).
7.      In the third place, the General Court compared the marks in question by examining each of them as a whole, as required by the settled case-law of the Court (see, inter alia, judgment of 16 January 2019, Poland v Stock Polska and EUIPO, C‑162/17 P, not published, EU:C:2019:27, paragraph 42 and the case-law cited). Contrary to the appellant’s claim, the General Court assessed the likelihood of confusion after having conducted a specific analysis of the various components of the marks at issue. Accordingly, the General Court referred to the similarities and other factors (type of goods, level of attention of the public) before carrying out a global assessment of the likelihood of confusion.
8.      In addition, although, by its arguments, the appellant actually seeks to call into question the General Court’s assessment of the facts, that reasoning is manifestly inadmissible, since, according to settled case-law, the finding, by the General Court, as to whether facts on which the Board of Appeal of EUIPO based its decision are well known or not is a factual assessment which, save where the facts or evidence are distorted, is not subject to review by the Court of Justice on appeal (judgment of 16 January 2019, Poland v Stock Polska and EUIPO, C‑162/17 P, not published, EU:C:2019:27, paragraph 69 and the case-law cited).
9.      Accordingly, the first part of the ground of appeal must be rejected as manifestly unfounded.
The second part of the single ground of appeal, alleging failure to state sufficient reasons in the judgment under appeal in connection with the conceptual comparison and infringement of Article 8(1)(b) of Regulation No 207/2009
10.      By the second part of its single ground of appeal, the appellant claims that the General Court failed to fulfil its duty to state reasons, in paragraphs 63 and 64 of the judgment under appeal, in considering that the signs in question were conceptually different, without basing its findings on objective information or evidence. It thus erred in its assessment of the conceptual comparison in basing its findings on its own perception.
11.      Pursuant to Article 36 of the Statute of the Court of Justice of the European Union, judgments are to state the reasons on which they are based. It has consistently been held that the reasoning of the General Court in a judgment must be disclosed 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. The duty incumbent upon the General Court to state reasons for its judgments does not, however, require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, provided that it enables the persons concerned to ascertain why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 16 January 2019, Poland v Stock Polska and EUIPO, C‑162/17 P, not published, EU:C:2019:27, paragraphs 78 and 79 and the case-law cited).
12.      In the present case, the General Court, in paragraphs 63 and 64 of the judgment under appeal, first highlighted that the signs at issue consisted of composite expressions with different meanings. It therefore considered that the relevant French public would not dissect those signs in order to distinguish each element thereof and would not, as a result, perceive the word “précieuse” independently in the expressions “eau précieuse” and “nuit précieuse”. Accordingly, the complaint alleging failure to state reasons is unfounded.
13.      Moreover, by criticising the General Court for having based its assessment on its own perception, the appellant actually seeks to call into question the General Court’s assessment of the facts. First, the finding regarding the perception of the relevant French public is a finding of fact. Second, as regards the assessment of the adjective “précieuse” common to both signs, the Court has previously stated that the assessment of conceptual similarities is of a factual nature (order of 25 February 2016, Deutsche Rockwool Mineralwoll v OHIM, C‑487/15 P, not published, EU:C:2016:130, paragraphs 34 and 35).
14.      It follows that the second part of the single ground of appeal must be rejected as being, in part, manifestly unfounded and, in part, manifestly inadmissible.
The third part of the single ground of appeal, alleging incorrect application of Article 76 of the Rules of Procedure of the General Court, and, therefore, failure to state reasons regarding the distinctive character of the earlier mark
15.      By the third part of its single ground of appeal, the appellant submits that the General Court, in having found that its reasoning relating to the global assessment of the evidence was inadmissible, failed to have regard to Article 76 of the Rules of Procedure of the General Court. Therefore, by failing to respond to the arguments it put forward in support of the plea alleging enhanced distinctive character of the earlier mark, the General Court erred in its interpretation of Article 8(1)(b) of Regulation No 207/2009 and the judgment under appeal is vitiated by a failure to state reasons in that regard.
16.      Regarding the complaint alleging infringement of Article 8 of Regulation No 207/2009, it must be noted that the General Court, in paragraphs 84 to 87 of the judgment under appeal, did not assess the evidence provided by the appellant or examine the assessment of the Board of Appeal, but rather rejected the third part of the single plea in law submitted before it as inadmissible on the ground that it did not contain sufficiently detailed arguments, which therefore failed to meet the requirements laid down in Article 76 of the Rules of Procedure of the General Court. As the General Court did not make its ruling on the basis of Article 8(1)(b) of Regulation No 207/2009, the complaint alleging infringement of that provision and a failure to state reasons is ineffective.
17.      Regarding the complaint alleging incorrect application of Article 76 of the Rules of Procedure of the General Court, the General Court first recalled that that article provides that an application must contain the subject matter of the proceedings, the pleas in law, the arguments relied on and a summary of those pleas in law. That summary must be sufficiently clear and precise to enable the other parties to the proceedings before the General Court to prepare their observations and the General Court to rule on the action, if necessary without any other supporting information. It is therefore necessary for the essential points of law and fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or fail to rule on a claim.
18.      Admittedly, it is apparent from paragraphs 47 to 52 of the application at first instance that the appellant contested, in essence, the assessment of the evidence submitted before the Board of Appeal as regards the distinctive character of the earlier mark, based on the alleged absence of a global assessment of the evidence. The appellant thereby merely provides an overall criticism of the Board of Appeal’s decision, without setting out specifically the reasons why the assessment of the evidence submitted before the Board of Appeal is incorrect. It follows that the essential elements of fact and of law on which the application is based are not sufficiently coherently and comprehensibly apparent from the application itself. The General Court was therefore fully entitled to find that that reasoning did not meet the requirements of clarity and precision laid down in Article 76 of the Rules of Procedure of the General Court.
19.      Consequently, the third part of the single ground of appeal must be rejected as being, in part, ineffective and, in part, manifestly unfounded.
Conclusion
It follows from the foregoing that the present appeal must be dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.’
6        On the same grounds as those stated by the Advocate General in points 1 to 7 and 9 to 19 of her proposal, the present 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. Since the present order was adopted before the appeal was served on the respondent and therefore before the latter could have incurred costs, Chefaro Ireland must be ordered to bear its own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
2.      Chefaro Ireland DAC shall bear its own costs.
Luxembourg, 2 May 2019.
A. Calot Escobar
K. Jürimäe
Registrar
President of the Ninth Chamber
*      Language of the case: English.