ORDER OF THE COURT (Ninth Chamber)
27 October 2016 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Opposition proceedings — Application for registration of the figurative mark REAL HAND COOKED — Rejection of the application for registration)
In Case C‑272/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 May 2016,
Tayto Group Ltd, established in Corby (United Kingdom), represented by R. Kunze, Solicitor, and G. Würtenberger, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
MIP Metro Group Intellectual Property GmbH & Co. KG, established in Düsseldorf (Germany),
defendants at first instance,
THE COURT (Ninth Chamber),
composed of E. Juhász (Rapporteur), President of the Chamber, C. Vajda and C. Lycourgos, Judges,
Advocate General: N. Wahl,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,
makes the following
Order
1        By its appeal, Tayto Group Ltd asks the Court to set aside the judgment of the General Court of the European Union of 24 February 2016, Tayto Group v OHIM — MIP Metro (REAL HAND COOKED) (T‑816/14, not published, ‘the judgment under appeal’, EU:T:2016:93), by which the General Court dismissed its action seeking the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 October 2014 (Case R 109/2009/1) concerning opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and Tayto Group.
2        In support of its appeal, the appellant relies on three grounds, alleging, respectively, that the General Court (i) failed to respond to an argument, (ii) did not respect the rules relating to the right to due process and, lastly, (iii) misinterpreted the likelihood of confusion between the earlier mark at issue and the mark applied for.
The appeal
3        Under Article 181 of the 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 should be applied in the present case.
5        The Advocate General took the following position on 21 September 2016:
‘1.      For the following reasons, I propose that the Court dismiss the appeal as in part manifestly inadmissible and in part manifestly unfounded and order Tayto Group to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court.
2.      In support of its appeal, the appellant puts forward three grounds of appeal.
3.      The first ground of appeal alleges that the General Court failed to respond to an argument allegedly raised by the appellant in the context of its first plea for annulment, according to which the Board of Appeal did not apply, when it adopted the decision of 6 October 2014, the version in force of the Nice Agreement Concerning the International Classification of Goods for the Purposes of the Registration of Marks, of 15 June 1957.
4.      Despite the fact that the General Court expressly adopted a position, in paragraphs 22 to 27 of the judgment under appeal, on the appellant’s first plea for annulment, the appellant does not cite any paragraph of the judgment under appeal in support of that ground of appeal, nor does it indicate which paragraphs of that judgment are disputed or did not respond to its arguments to the requisite legal standard. That deficiency is exacerbated by the brief line of argument in support of that ground of appeal, which is not sufficiently substantiated to enable the Court to exercise its powers of review on appeal. Consequently, that ground of appeal is manifestly inadmissible (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraphs 29 and 30).
5.      The first part of the second ground of appeal alleges that the General Court wrongly held, in paragraph 30 of the judgment under appeal, that the question relating to the representation of the earlier mark had been resolved and, in paragraph 32 of that judgment, that the appellant could not claim that there was a presumption that the representation of the earlier mark had been provided in black and white. The appellant submits that it did not receive a colour representation of the earlier mark during the proceedings before the Board of Appeal and that the General Court therefore erroneously considered, in paragraph 33 of the judgment under appeal, that the Tayto Group’s rights of defence had not been infringed.
6.      In that regard, it must be pointed out that, by the first part of that ground of appeal, in so far as it concerns paragraphs 30 and 32 of the judgment under appeal, the appellant actually seeks to contest the factual assessment made by the General Court in paragraph 31 of that judgment, a paragraph which, incidentally, the appellant does not challenge. In that paragraph, the General Court found that the Opposition Division had clearly indicated, in its decision, that the colour representation of the earlier mark had indeed been attached to the notice of opposition sent by mail and received by EUIPO, and that this was further confirmed by the fact that, in that decision, it was mentioned that the earlier sign is composed of the word “real” written in red and the word “quality” written in blue. That assessment is not subject to review by the Court on appeal (see judgment of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission, C‑154/14 P, EU:C:2016:445, paragraph 33). Since it is not open to the appellant to challenge that factual assessment, the General Court did not err in holding, in paragraph 33 of that judgment, that the appellant’s rights of defence had not been infringed. Accordingly, the first part of the second ground of appeal must be rejected as manifestly unfounded.
7.      The same is true with regard to the second part of the second ground of appeal, alleging that the General Court wrongly held, in paragraph 34 of the judgment under appeal, that the appellant’s right to due process was not infringed. The appellant merely makes general assertions, without validly calling into question the reason in the judgment under appeal that led the General Court to make that assessment, namely that the proceedings before the Boards of Appeal are administrative and not judicial in nature.
8.      It follows that the second ground of appeal must be rejected in its entirety as manifestly unfounded.
9.      Lastly, the third ground of appeal, alleging that, by stating that the element “real” constitutes the dominant element of the marks at issue, the General Court misinterpreted the principles applicable in assessing whether there is a likelihood of confusion, must, like the first ground of appeal, be rejected as manifestly inadmissible, since the appellant does not cite any paragraph in the judgment under appeal in support of its line of argument and also does not indicate the paragraphs of that judgment which it contests.
10.      It follows from the foregoing that the appeal, which is in part manifestly inadmissible and in part manifestly unfounded, should be dismissed in its entirety.’
6        For the same reasons as those stated by the Advocate General, the appeal must be dismissed.
Costs
7        Under Article 137 of the Court’s 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 has been made before the appeal was served on the respondents and therefore before the latter could have incurred costs, Tayto Group should be ordered to bear its own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Tayto Group Ltd shall bear its own costs.
[Signatures]
* Language of the case: English.