ORDER OF THE COURT (Eighth Chamber)
8 December 2016 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court — EU mark ? Opposition proceedings — Application for registration of the figurative mark containing the word elements ‘VICHY LABORATOIRES V IDÉALIA’ — Rejection of the application for registration)
In Case C‑371/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 4 July 2016,
L’Oréal SA, established in Paris (France), represented by J. Mioludo, advogado,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Eighth Chamber),
composed of M. Vilaras, President of the Chamber, J. Malenovský and D. Šváby (Rapporteur), 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, L’Oréal SA asks the Court to set aside the judgment of the General Court of the European Union of 28 April 2016, L’Oréal v EUIPO — Theralab (VICHY LABORATOIRES V IDÉALIA) (T‑144/15, not published, ‘the judgment under appeal’, EU:T:2016:249), 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 22 January 2015 (Case R 1097/2014-4), concerning opposition proceedings between Theralab — Productos Farmacêuticos e Nutracêuticos Lda and L’Oréal (‘the decision at issue’).
2        In support of its appeal, the appellant relies on two grounds. By its first ground, which may be divided into two parts, the appellant submits that the General Court infringed Article 117(l) of the Rules of Procedure of the General Court, because, first, it omitted some essential facts in the summary of the facts and, secondly, the summary of the facts includes some distortions. By its second ground, the appellant submits that the General Court infringed 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), Article 36 of the Statute of the Court of Justice of the European Union and Article 117(m) of the Rules of Procedure of the General Court, in upholding the reasoning of the Fourth Board of Appeal of EUIPO and, therefore, in failing to apply correctly the principle that the likelihood of confusion must be assessed globally. In endorsing the Board of Appeal’s reasoning, the General Court, in the appellant’s view, also vitiated the judgment under appeal by failing to state the grounds.
The appeal
3        In accordance with 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 4 November 2016, the Advocate General took the following position:
‘I propose that the Court should dismiss the appeal in the present case as being in part manifestly inadmissible and in part manifestly unfounded and order L’Oréal to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure of the Court, for the reasons set out below:
The first ground of appeal, alleging infringement of Article 117(1) of the Rules of Procedure of the General Court because of an incomplete summary of the facts and a distortion of the facts
1.      In its first ground of appeal, the appellant submits, first, that the General Court omitted some essential facts in the summary of the facts. In support of that claim, it submits that the General Court did not correctly reproduce its arguments relating, first, to the need to assess the likelihood of confusion globally and, secondly, the weak distinctive character of the earlier mark.
2.      First of all, it must be found that that line of argument has no connection with the summary of the facts in the judgment under appeal. Next, in so far as the appellant seeks in fact to complain that the General Court failed to respond to its arguments, such a contention must be rejected as manifestly unfounded. The General Court did respond to the appellant’s arguments relating to the global assessment of the likelihood of confusion and the weak distinctive character of the earlier mark. Lastly, in so far as the appellant’s line of argument must be understood as in fact seeking to complain that the General Court concluded, in its assessment of the facts against which there is no appeal, that there was a likelihood of confusion between the mark applied for and the earlier mark, that line of argument must be rejected as manifestly inadmissible. Since an appeal lies on points of law only, the General Court has exclusive jurisdiction to find and appraise the relevant facts, the evidence, the similarities between the signs at issue and the likelihood of confusion. Consequently, save where there is distortion of those factors, which is neither relied on nor obvious in the present case, they are not open to review by the Court of Justice on appeal (order of 17 September 2015, Arnoldo Mondadori Editore v EUIPO, C‑548/14 P, not published, EU:C:2015:624, paragraphs 38 and 41).
3.      In the second place, the appellant submits that the summary of the facts in the judgment under appeal includes some distortions. It is, however, apparent from the appellant’s line of argument that strictly speaking it is not arguing that there has been a distortion of the facts, but that its arguments have been altered by the General Court. It is, however, apparent that such a complaint is manifestly unfounded.
4.      Accordingly, the appellant states, first, that it did not claim that the Fourth Board of Appeal of EUIPO misinterpreted the principle that a consumer tends to be more drawn towards the beginning of a mark rather than the end, but simply that it misapplied that principle. However, the General Court did not distort that argument in so far as it observed that the appellant relied on a “misinterpretation” of that principle by the Fourth Board of Appeal of EUIPO. Secondly, the appellant complains that the General Court incorrectly attributed to it the argument that any likelihood of confusion should have been excluded. In fact, the appellant simply argued that the assessment of the marks’ phonetic similarity and of the earlier mark’s weak distinctive character and the application of the distance theory ought to have led to a different conclusion on the likelihood of confusion. It is apparent that by that line of argument the appellant seeks in fact to call in question the General Court’s assessment of the facts, in particular its assessment of the distinctive character of the marks at issue and the likelihood of confusion. However, as has been stated in paragraph 2 above, save where there is distortion of those factors, which is neither relied on nor obvious in the present case, they are not open to review by the Court of Justice on appeal.
5.      It follows from the foregoing that the first ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.
The second ground of appeal, alleging an error of law in the application of Article 8(1)(b) of Regulation No 207/2009 and an infringement of Article 36 of the Statute of the Court of Justice of the European Union and of Article 117(m) of the Rules of Procedure of the General Court
6.      In the context of the second ground of appeal, the appellant submits that the General Court erred in law in validating the reasoning of the Fourth Board of Appeal of EUIPO, which failed to apply correctly the principle of the global assessment of the likelihood of confusion when it compared the marks at issue. In merely endorsing the Board of Appeal’s reasoning, the General Court also vitiated the judgment under appeal by failing to state the grounds.
7.      First of all, it is necessary to point out that the review carried out by the General Court under Article 65 of Regulation No 207/2009 is a review of the legality of the decisions of the Boards of Appeal of EUIPO. In that context, the power of the General Court to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal as regards the assessment of the facts forming the basis of the dispute (see, to that effect, judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72). Consequently, in the present case, the General Court’s task consisted in reviewing whether the Fourth Board of Appeal of EUIPO had properly assessed the likelihood of confusion between the marks at issue.
8.      As regards, next, the argument alleging a failure to state the grounds, it is to be noted that, after referring to the case-law on the global assessment of the likelihood of confusion, the General Court examined the relevant paragraphs of the decision at issue and found that the Fourth Board of Appeal of EUIPO had carried out an assessment of the various elements which compose the mark applied for before assessing the similarities between the marks at issue. It was only on the basis of that examination, and also on the basis of an examination of the appellant’s criticisms, that the General Court found that the Board of Appeal had not limited itself to a comparison of the words “idéalia” and “idealina”, by disregarding the other elements which compose the mark applied for. It follows that the appellant cannot validly complain that the General Court merely repeated the Board of Appeal’s reasoning without developing independent reasoning of its own in order to disclose the basis of its decision. The General Court did not simply summarise the Board of Appeal’s position, but explained specifically the reasons for which the Board of Appeal had, in the General Court’s view, correctly applied the principles relating to the global assessment of the likelihood of confusion. The argument alleging a failure to state the grounds must, therefore, be rejected as manifestly unfounded.
9.      As to the substance, the appellant cannot validly complain that the General Court erred in law when applying the principle of the global assessment of the likelihood of confusion. Consequently, it is apparent from the General Court’s examination of the decision at issue that it ascertained whether the Fourth Board of Appeal of EUIPO had properly taken into account, in accordance with the obligations deriving from the case-law, all the elements composing the mark applied for. In that context, the General Court, inter alia, examined and rejected as unfounded the appellant’s argument, reiterated in the present appeal proceedings, that the element “Vichy” was not duly taken into account by the Board of Appeal. It follows that the General Court properly took into account all the elements composing the mark applied for when it reviewed the Board of Appeal’s assessment of the similarity of the signs at issue.
10.      In addition, in so far as the appellant’s line of argument must be understood as seeking to criticise the General Court’s assessments of the similarity of the signs at issue, it must be rejected as inadmissible. Accordingly, the failure to take into account all the factors relevant to the global assessment of the likelihood of confusion does constitute an error of law and may, as such, be raised before the Court of Justice in the context of an appeal. By contrast, the assessment of those factors is an issue of fact which is not open to review by the Court (order of 22 October 2014, Repsol YPF v OHIM, C‑466/13 P, not published, EU:C:2014:2331, paragraph 63).
11.      Consequently, the second ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.’
Conclusion
12.      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.’
5        On the same grounds as those selected by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
Costs
6        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. Since the present order has been adopted before the appeal has been served on the defendant and, therefore, before the latter could have incurred costs, L’Oréal must be ordered to bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      L’Oréal SA shall bear its own costs.
Luxembourg, 8 December 2016.
A. Calot Escobar
M. Vilaras
Registrar
President of the Eighth Chamber
* Language of the case: English.