ORDER OF THE COURT (Tenth Chamber)
6 December 2016 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Figurative mark containing the word elements ‘HOT JOKER’ — Opposition by the proprietor of the figurative mark containing the word elements ‘joker +’ — Refusal of registration)
In Case C‑342/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 June 2016,
Novomatic AG, established in Gumpoldskirchen (Austria), represented by W. Mosing, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Granini France, established in Mâcon (France), represented by D. Lichtlen, avocat,
intervener at first instance,
THE COURT (Tenth Chamber),
composed of M. Berger, President of the Chamber, E. Levits (Rapporteur) and F. Biltgen, Judges,
Advocate General: M. Wathelet,
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, Novomatic AG asks the Court of Justice to set aside the judgment of the General Court of 19 April 2016, Novomatic v EUIPO — Granini France (HOT JOKER) (T‑326/14, not published, ‘the judgment under appeal’, EU:T:2016:221), by which the General Court dismissed its action seeking the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 February 2014 (Case R 589/2013-2), concerning opposition proceedings between Granini France and Novomatic.
2        In support of its appeal, Novomatic puts forward two grounds, alleging infringement, respectively, 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) and Articles 75 and 76 of that regulation.
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        On 19 October 2016, the Advocate General took the following position:
‘I propose that the Court should dismiss the appeal in the present case as in part manifestly inadmissible and in part manifestly unfounded and order Novomatic AG to pay the costs, in accordance with Article 137 of the Rules of Procedure, for the following reasons:
1.      In support of its appeal, the appellant formally puts forward two grounds alleging, respectively (i) infringement of Article 8(1)(b) of Regulation [No 207/2009] and (ii) infringement of Articles 75 and 76 of that regulation.
2.      The appellant’s only complaint is that the General Court failed to take into account relevant criteria, first, with regard to the examination of the similarity of the goods at issue and, secondly, with regard to the comparison of the signs at issue, in particular concerning the word element “JOKER”, so that no proper reasons have been given for the judgment under appeal. Likewise, it is apparent from the wording of the appeal that, first, the appellant bases its arguments solely on those two complaints (comparison of the goods concerned and comparison of the signs). Secondly, it is only in the context of the conclusion that the appellant draws from the alleged errors committed by the General Court concerning the comparison of the goods concerned that it also relies on an infringement of Articles 75 and 76 of Regulation No 207/2009.
3.      Accordingly, I consider that, in essence, the appellant raises a single ground of appeal alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
4.      That ground of appeal is divided into two parts.
5.      By the first part, the appellant raises the failure to take account of the factors relevant to the examination of the similarity of the goods (first complaint) resulting at the same time in an infringement of Article 75 (second complaint) and Article 76 (third complaint) of Regulation No 207/2009.
6.      By the second part, the appellant raises the failure to take account of factors relevant to the comparison of the signs at issue. That second part is divided into three complaints: (i) error of assessment with regard to the determination of the dominant element in the earlier trade mark; (ii) error of assessment with regard to the determination of the dominant element in the mark applied for; and (iii) error of assessment with regard to the comparison of the signs at issue.
7.      I propose that the two parts of the single ground of appeal should be rejected as in part manifestly inadmissible and in part manifestly unfounded, for the reasons set out below.
The first, second, fourth and fifth arguments of the first complaint of the first part of the single ground of appeal
8.      The first argument concerns the interpretation by the General Court of the expression “in particular”; the second argument concerns the relevant public; the fourth argument disputes that the word “games” includes “games of chance” and the fifth argument criticises the General Court for having failed to take account of the fact that “games” and “games of chance” are included in totally different distribution channels and that they also serve different purposes. Those arguments relate, in essence, first, to the interpretation by the General Court of the items comprising the description of the goods covered by the signs at issue (first and fourth arguments) and, secondly, the assessment made by the General Court of the factors relevant to the comparison of the goods in question in Classes 9 and 28 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 (second and fifth arguments).
9.      Those arguments must be rejected as manifestly inadmissible in so far as the appellant, in fact, merely asks for a re-examination of the arguments presented before the General Court (as the four abovementioned arguments have already been raised before the General Court) and disputes an assessment of matters of fact, which does not constitute a question of law which may be subject to review by the Court of Justice on appeal. Moreover, the appellant neither demonstrates nor alleges any distortion of the facts or evidence by the General Court.
The third argument of the first complaint of the first part of the single ground of appeal
10.      By this argument, the appellant claims that if, as the General Court held, the “hardware and software” and the online “electronic games” have to be regarded as complementary, the result would be that all the “games” in Class 28 would in all circumstances be at least similar to the “hardware and software”.
11.      In the present case, the Board of Appeal had already held that “hardware and software” and online “electronic games” were complementary. Given that that third argument was not raised by the appellant in its application before the General Court and was not submitted to the General Court for its assessment, the Court is not competent to assess its merits (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 126 and the case-law cited). That argument must therefore be dismissed as manifestly inadmissible.
The second complaint of the first part of the single ground of appeal
12.      As regards the alleged infringement of Article 75 of Regulation No 207/2009, on the one hand, the appellant does not seem to direct its complaint based on the breach of the obligation to state reasons (Article 75, first sentence) against the decision of the Board of Appeal in question but against the judgment under appeal. Accordingly, that complaint must be interpreted as being based not on the provisions of the first sentence of Article 75 of that regulation but on those of Article 296 TFEU.
13.      The statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and the Court to exercise its supervisory jurisdiction. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65).
14.      In the present case, the appellant does not rely on a failure to state reasons in the judgment under appeal but rather, in essence, on incorrect reasoning as regards the General Court’s assessment of the comparison of the goods concerned. In the same way as for the alleged infringement of Article 76 of Regulation No 207/2009, it simply infers the breach of the obligation to state reasons from the alleged failure by the General Court to take account of the relevant elements regarding the comparison of the goods. Since such a complaint relates to the issue of the merits of the statement of reasons, it relates to the substantive legality of the judgment under appeal.
15.      Since that alleged failure to take elements into account has been the subject of the other complaints which I propose to declare manifestly inadmissible, I propose that the second complaint in the first part of the single ground of appeal should also be dismissed as manifestly inadmissible.
16.      In any event, in the light of the case-law cited above, it is not apparent from the wording of the judgment under appeal that it is vitiated by a breach of the obligation to state reasons. Accordingly, the second complaint in the first part of the single ground of appeal must be rejected as manifestly inadmissible or, in any event, manifestly unfounded.
The third complaint of the first part of the single ground of appeal
17.      The Court has repeatedly ruled that 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 the appeal, failing which the appeal or specific ground of appeal will be declared inadmissible. Likewise, a mere abstract statement of the grounds in the appeal does not satisfy the requirements set out in Article 58 of the Statute of the Court and in Article 168(1)(d) of its Rules of Procedure.
18.      In the present case, even without the need to rule on the question as to whether the provisions of Article 76 of Regulation No 207/2009 are capable of binding the General Court, it must be held that the appellant has not substantiated the complaint alleging infringement of Article 76 of Regulation No 207/2009. It seems to me that the appellant simply infers that infringement from the alleged failure by the General Court to take account of the relevant elements regarding the comparison of the goods. Since that alleged failure to take elements into account was the subject of the other complaints which I propose to declare manifestly inadmissible, I propose that the third complaint in the first part of the single ground of appeal should also be dismissed as manifestly inadmissible.
The three complaints in the second part of the single ground of appeal
19.      In the present case, with regard to the three complaints in the second part of the single ground of appeal, these concern the assessment made by the General Court regarding, first, the determination of the dominant element in the signs at issue and, secondly, the comparison of those signs. On the one hand, such an assessment as to the similarity between the marks by the General Court is a factual assessment which falls outside the Court of Justice’s jurisdiction in hearing an appeal. On the other hand, it does not appear that the appellant alleges or a fortiori demonstrates a distortion of the facts at issue. Consequently, in challenging those assessments by the General Court, the appellant seeks to call into question an assessment of a factual nature and is, in reality, seeking a new assessment of the similarity of the signs by the Court of Justice. Accordingly, the three complaints in the second part of the single plea must be rejected as manifestly inadmissible.
20.      The single ground of appeal relied on by the appellant must therefore be rejected as in part manifestly inadmissible and in part manifestly unfounded.’
5        It should be added that, as regards the third argument of the first complaint in the first part of the single ground of appeal, by which the appellant criticises the General Court for finding that ‘hardware and software’ and online ‘electronic games’ should be regarded as complementary, that argument seeks to call into question an assessment of a factual nature and is intended, in reality, to replace it with the Court of Justice’s own assessment, which falls outside the Court’s jurisdiction in hearing an appeal and in any event renders that argument inadmissible.
6        On that last ground as well as those relied on 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 was adopted before the appeal was served on the defendant and on the intervener at first instance and, therefore, before those parties could have incurred costs, Novomatic must be ordered to bear its own costs.
On those grounds, the Court (Tenth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Novomatic AG shall bear its own costs.
Luxembourg, 6 December 2016.
A. Calot Escobar
M. Berger
Registrar
President of the Tenth Chamber
** Language of the case: English.