ORDER OF THE COURT (Eighth Chamber)
13 March 2018 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Invalidity proceedings — Figurative mark in black, yellow and white, containing the word element ‘mediaexpert’ — Failure to submit a translation of the registration certificate for the earlier mark — Rejection of the application for a declaration of invalidity)
In Case C‑560/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 September 2017,
Mediaexpert sp. z o.o., established in Warsaw (Poland), represented by J. Aftyka, radca prawny,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Eighth Chamber),
composed of J. Malenovský, President of the Chamber, D. Šváby (Rapporteur) and M. Vilaras, Judges,
Advocate General: Y. Bot,
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, Mediaexpert sp. z o.o. seeks to have set aside the judgment of the General Court of the European Union of 20 July 2017, Mediaexpert v EUIPO — Mediaexpert (mediaexpert) (T‑780/16, not published, EU:T:2017:538; ‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 August 2016 (Case R 2583/2015-1), concerning invalidity proceedings between Mediaexpert and Mediaexpert SA (‘the decision in dispute’).
The appeal
2        Pursuant to 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.
3        On 16 February 2018, the Advocate General took the following position:
‘For the reasons to be set out below, I propose that the Court should dismiss the appeal in Case C‑560/17 P as being, in part, manifestly unfounded and, in part, manifestly inadmissible and order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court of Justice.
It is apparent from page 3 of the present appeal that the appellant seeks to have the judgment under appeal set aside on the ground that the General Court “repeatedly infringed the [EU] Treaty and [Council] Regulation [(EC)] No 207/2009 [of 26 February 2009 on the EU trade mark (OJ 2009 L 78, p. 1] ..., namely the principle of fair procedure under Article 6(1) TEU, in conjunction with the second paragraph of Article 47 of the Charter of Fundamental Rights [of the European Union], as well as Article 8(1)(a) and (b) [of Regulation No 207/2009] by reason of a distortion of the facts”. However, the arguments put forward by the appellant do not correspond to the headings of those grounds of appeal, and the appellant makes no further reference to those provisions in its arguments.
That being the case, and notwithstanding the somewhat cryptic nature of the appellant’s arguments, it relies, essentially, on two grounds of appeal concerning the General Court’s failure to take account, firstly, of EUIPO’s previous practice and, secondly, of a procedural flaw.
The first ground of appeal
1.      By the first ground of appeal, the appellant criticises the General Court for not having ruled on the discrepancy between EUIPO’s practice, set out in the guidelines concerning proceedings before EUIPO (“the EUIPO Guidelines”), and the decision in dispute. The application for a declaration of invalidity having been rejected by EUIPO owing to the absence of a translation into the language of the case of the extract from the Urząd Patentowy Rzeczypospolitej Polskiej (Polish Patent Office) database concerning the registration of the earlier mark (“the extract from the database”), that legal assessment was, the appellant argues, contrary to the trade mark practice codified in the EUIPO Guidelines, under which a distinction is made between the admissibility conditions and the substantive conditions governing invalidity proceedings. The General Court, it is submitted, failed to refer to that practice.
2.      In that regard, firstly, although the appellant alleges a distortion of the facts, I note that it confines itself to relying on such a distortion without, however, indicating the facts that have allegedly been distorted or producing any evidence serving to identify any distortion of the facts by the General Court, whereas, under settled case-law, the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure, the appellant must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion (judgment of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 78).
3.      Secondly, it must be noted that the appellant’s arguments are based on a manifestly erroneous reading of the judgment under appeal since (i) the General Court, in paragraphs 60 to 62 of that judgment, examined the appellant’s arguments based on point 6.2, Part D, Section 1, of the EUIPO Guidelines, and (ii) the appellant relies for the first time, in support of the present appeal, on Part C, Section 1, of those guidelines relating to opposition procedures and not to applications for a declaration of invalidity.
4.      Furthermore, it must be recalled that the EUIPO Guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48). Moreover, to the extent that the decisions which the EUIPO Boards of Appeal are called on to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union (judgment of 19 January 2012, OHIM v Nike International, C‑53/11 P, EU:C:2012:27, paragraph 57).
5.      As EUIPO’s previous practice codified in its abovementioned guidelines is not binding, and as the General Court, in paragraphs 35 to 44 of the judgment under appeal, based itself on the distinction made by the EU legislature between the admissibility conditions and the substantive conditions governing invalidity proceedings in order to reject the appellant’s arguments, the reasoning regarding EUIPO’s practice must be rejected as being manifestly unfounded.
6.      It follows that the first ground of appeal must be rejected as being manifestly unfounded.
The second ground of appeal
7.      By the second ground of appeal, the appellant invokes a failure on the part of the General Court to take into account a procedural flaw by reason of EUIPO’s rejection of the application for a declaration of invalidity. It is submitted that the General Court wrongfully omitted to take into account the fact that, in rejecting the substantive application for a declaration of invalidity, EUIPO vitiated the decision in dispute by a procedural flaw, whereas the appellant had remedied the irregularities identified by EUIPO by providing a list drawn up in English of the goods and services covered by the earlier mark. In this regard, the appellant submits that EUIPO was aware of the scope of the protection of the earlier mark and that, considering EUIPO’s conduct, the appellant could not foresee that, by failing to provide a translation of the extract from the database, its application would be rejected.
8.      In this regard, it must be recalled that, under Article 168(1)(b) and Article 169(2) of the Rules of Procedure, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of that appeal, failing which the appeal or specific ground of appeal will be declared 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, paragraph 29).
9.      Furthermore, according to settled case-law, an appeal which merely reiterates the pleas in law and arguments already put forward before the General Court amounts in reality to no more than a request for a re-examination of the application bought before the General Court, and consequently falls outside the jurisdiction of the Court of Justice (see, to that effect, judgment of 4 July 2000, Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 35, and order of 7 July 2016, Fapricela v Commission, C‑510/15 P, not published, EU:C:2016:547, paragraph 29).
10.      In the present case, the appellant does not cite any paragraph of the judgment under appeal or identify the paragraphs of that judgment which it contests, and the arguments submitted under the second ground of appeal reiterate the arguments succinctly put before the General Court, with the result that the appellant is in fact merely criticising the decision of EUIPO’s Cancellation Division and the decision in dispute without identifying specifically the error of law that allegedly vitiates the General Court’s findings.
11.      In particular, it should be stressed that the General Court examined (i) the question of the need for a translation of the extract from the database, in paragraphs 25 to 53 of the judgment under appeal, by answering the same arguments as those put forward by the appellant under the present ground of appeal, and (ii) the allegations regarding a breach of the principle of protection of legitimate expectations, by answering, in paragraphs 58 to 63 of the judgment under appeal, the appellant’s arguments that EUIPO had given it the impression that the invalidity proceedings were proper and complete.
12.      It follows that the second ground of appeal must be rejected as manifestly inadmissible and that, consequently, the action must be dismissed in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible.
13.      In the light of all of those considerations, the appeal brought by Mediaexpert must therefore be dismissed and the latter ordered to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure.’
4        It is clear from the considerations set out in points 1 to 3 of the proposal of the Advocate General, firstly, that, inasmuch as the first ground of appeal concerns a distortion of the facts, it is manifestly inadmissible since the appellant has not indicated the facts that the General Court allegedly distorted; secondly, to the extent that, by that ground of appeal, the appellant criticises the General Court for not ruling on the discrepancy between Part C, Section 1, of the EUIPO Guidelines and the decision in dispute, it raises, for the first time at the appeal stage, a new plea in law, seeking to change the subject matter of the proceedings before the General Court, which is prohibited by the second sentence of Article 170(1) of the Rules of Procedure; and, thirdly, to the extent that, by that ground of appeal, the appellant criticises the General Court for not examining its arguments based on point 6.2 of Part D, Section 1, of the EUIPO Guidelines, this has no basis in fact, as the General Court examined those arguments in paragraphs 60 to 62 of the judgment under appeal. It follows that the first ground of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
5        Moreover, it is clear from the considerations set out in points 7 to 12 of the proposal of the Advocate General that the second ground of appeal is manifestly inadmissible.
6        Consequently, 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. In the present case, since the present order is adopted before the appeal has been served on the respondent, and therefore before the latter could have incurred costs, Mediaexpert must be ordered to bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
2.      Mediaexpert sp. z o.o. shall bear its own costs.
Luxembourg, 13 March 2018.
A. Calot Escobar
J. Malenovský
Registrar
President of the Eighth Chamber
*      Language of the case: English.