ORDER OF THE COURT (Eighth Chamber)
6 September 2018 (*)
(Appeal — EU trade mark — Article 181 of the Rules of Procedure of the Court of Justice — Invalidity proceedings — Word mark BET 365 — Evidence of the acquisition of distinctive character through use)
In Case C‑136/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 February 2018,
Robert Hansen, residing in Munich (Germany), represented by M. Pütz-Poulalion, Rechtsanwalt,
appellant,
the other parties to the proceedings being:
bet365 Group Ltd, established in Stoke-on-Trent (United Kingdom),
applicant at first instance,
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Eighth Chamber),
composed of J. Malenovský, President of the Chamber, M. Safjan and M. Vilaras (Rapporteur), Judges,
Advocate General: H. Saugmandsgaard Øe,
Registrar: A. Calot Escobar,
having regard to the decision taken, 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 his appeal, Mr Robert Hansen requests that the Court set aside the judgment of the General Court of the European Union of 14 December 2017, bet365 Group v EUIPO — Hansen (BET365) (T‑304/16, EU:T:2017:912; ‘the judgment under appeal’), by which the General Court upheld in part the action brought by bet365 Group Ltd and annulled the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 March 2016 (Case R 3243/2014-5), relating to invalidity proceedings between Mr Hansen and bet365 Group (‘the decision at issue’), to the extent that that decision relates to services in Class 41 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, listed in the registration of the EU trade mark BET 365.
2        Mr Hansen also requests that the Court deliver a final judgment in these proceedings by granting the form of order that he sought at first instance.
3        Mr Hansen raises a single ground of appeal, divided into six parts, alleging misinterpretation of Article 7(3) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the [European Union] trade mark (OJ 2009 L 78, p. 1).
The appeal
4        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.
5        That provision must be applied in the present case.
6        On 8 June 2018, the Advocate General took the following position:
‘[...]
3. For the reasons set out hereafter, I propose that the Court dismiss the appeal in this case on the ground that it is, in part, manifestly inadmissible and, in part, manifestly unfounded.
4. By the first part of the ground of appeal, Mr Hansen criticises the General Court for having erred in law when it examined whether some of the evidence submitted by bet365 Group (‘the proprietor of the contested mark’) was suitable for the purpose of establishing the acquisition of distinctive character through use of the word mark BET 365 (‘the contested mark’), instead of assessing whether the proprietor of the contested mark had produced sufficient evidence of such acquisition. The General Court thus infringed the rules governing the burden of proof.
5. It is apparent from paragraph 75 of the judgment under appeal that the General Court found that the Board of Appeal did not take into account certain items of evidence put forward by the proprietor of the contested mark in an attempt to demonstrate the acquisition by that mark of distinctive character through use. It went on to conclude that the decision at issue was not sufficiently substantiated by valid grounds and that, consequently, it should be annulled.
6. The General Court then observed, in paragraph 76 of the judgment under appeal, that it was not for that court to make a detailed and conclusive analysis for the whole of the relevant territory, particularly since the Board of Appeal had not itself carried out such an analysis. In that respect, the General Court relied on, inter alia, paragraph 72 of the judgment of 5 July 2011, Edwin v OHIM (C‑263/09 P, EU:C:2011:452), where the Court of Justice held that the General Court can neither substitute its own reasoning for that of a Board of Appeal nor carry out an assessment on which that Board of Appeal has not yet adopted a position.
7. It follows that, in basing its analysis, inter alia, on the Board of Appeal’s failure to take into account certain items of evidence, the General Court did not infringe the rules governing the burden of proof. The General Court did not itself assess the distinctive character of the contested mark, but rather, correctly, limited itself to evaluating the relevance of the items of evidence provided to show that the mark had acquired distinctive character through use.
8. Accordingly, the first part of the ground of appeal must be rejected as manifestly unfounded.
9. By the second part of his ground of appeal, Mr Hansen submits that the General Court erred in law by failing to limit its assessment of the acquisition of distinctive character through use by the contested mark to the services in Class 41 for which the mark was registered. Mr Hansen claims that, in this respect, the General Court was wrong to annul the decision at issue for all the services in Class 41 generally.
10. In that regard, I observe, first of all, that the General Court noted, in accordance with the case-law of the Court of Justice, in paragraph 28 of the judgment under appeal, that the distinctive character of a mark, including that acquired through use, must also be assessed ‘with regard to the goods or services in respect of which registration is applied for or obtained’.
11. Then, in paragraph 75 of the judgment under appeal, the General Court pointed out that there are not sufficient valid grounds in the decision at issue to justify its operative part concerning the gambling and betting services in Class 41 listed in the registration and, consequently, concluded that, with regard to those services, the annulment of the decision was well founded.
12. Lastly, I would point out that, in paragraph 77 of the judgment under appeal, the General Court found that the contested decision had to be annulled ‘in so far as it concerns the services in Class 41 listed in the registration of the contested mark’.
13. In so doing, the General Court substantiated its reasoning by stressing the fact that the services referred to are those listed in the registration of the contested mark. Consequently, Mr Hansen’s argument is based on an erroneous reading of the judgment under appeal, since the General Court did not annul the decision at issue in respect of all services in Class 41, contrary to what is maintained by Mr Hansen.
14. Accordingly, the second part of the ground of appeal must be rejected as manifestly unfounded.
15. By the third part of his ground of appeal, Mr Hansen alleges that the General Court erred in law by relying exclusively on proof of use of the contested mark adduced in respect of certain States, but not all the States of the European Union.
16. It is apparent from paragraphs 32 and 33 of the judgment under appeal that the General Court did not accept the argument raised by Mr Hansen before it that the scope of the relevant territory should have been wider, inter alia, because there are some Member States in which English is not widely spoken by the relevant public.
17. As provided in Article 169(2) of the Rules of Procedure, the appeal must identify precisely those points in the decision of the General Court which are contested.
18. In addition, 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 (see, inter alia, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 43). An appeal does not fulfil that requirement if it does not include an argument specifically pointing out the error of law vitiating the judgment under appeal and simply reproduces the pleas in law and arguments that have already been submitted before the General Court (see, to that effect, judgment of 6 November 2014, Italy v Commission, C‑385/13 P, not published, EU:C:2014:2350, paragraphs 59 and 60, and order of 2 March 2017, TVR Italia v EUIPO, C‑576/16 P, not published, EU:C:2017:165, paragraph 2).
19. In the present case, without indicating the paragraphs of the judgment under appeal to which he is referring in support of his claims, Mr Hansen simply takes up the same arguments put forward in his submissions before the General Court concerning the assessment of the relevant territory. Consequently, the third part of the ground of appeal must be rejected as manifestly inadmissible.
20. By the fourth part of his ground of appeal, Mr Hansen takes issue with the General Court for having erred in law when it attributed probative value to the figures provided by the proprietor of the contested mark as evidence.
21. By the fifth part of his ground of appeal, Mr Hansen submits that the General Court erred in law in its understanding of the nature of the evidence provided by the proprietor of the contested mark in respect of the affiliation programme.
22. It should be recalled that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The General Court has exclusive jurisdiction to find and appraise both the relevant facts and the evidence. The appraisal of the latter thus does not, save where such facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, to that effect, judgments of 2 March 1994, Hilti v Commission, C‑53/92 P, EU:C:1994:77, paragraph 42, and of 28 February 2018, mobile.de v EUIPO, C‑418/16 P, EU:C:2018:128, paragraph 65).
23. By his arguments in the fourth and fifth parts, Mr Hansen attempts to call into question the General Court’s appraisal of the evidence and thereby obtain a new examination of the facts by the Court of Justice, without alleging that the facts have been distorted by the General Court.
24. Consequently, the fourth and fifth parts of the ground of appeal must be rejected as manifestly inadmissible.
25. By the sixth part of his ground of appeal, Mr Hansen claims that the General Court erred in law in its application of the quantitative criteria to be met in order for the contested mark to acquire through use distinctive character.
26. In that regard, Mr Hansen submits that the proprietor of the contested mark produced a limited number of documents consisting of articles published outside of the United Kingdom, which do not show the extent of the use of the contested mark in the countries to which those documents refer.
27. It must be noted that Mr Hansen merely raises again the arguments submitted before the General Court on the assessment of the relevance of the body of evidence and examples provided by the proprietor of the contested mark relating to news articles, online advertisements, websites, information on marketing expenses and commercial figures showing the visibility of the contested mark. Furthermore, it must be noted that the applicant has not in fact alleged that the General Court distorted that evidence.
28. In the light of those considerations and in accordance with the case-law referred to in points 18 and 22 above, the sixth part of the ground of appeal must be dismissed as manifestly inadmissible.
29. As the six parts of the ground of appeal are either manifestly inadmissible or manifestly unfounded, the appeal must be dismissed in its entirety.’
7        By the first part of his sole ground of appeal, Mr Hansen submits, in essence, that the General Court erred in its assessment of the burden of proof, as it did not examine whether bet365 Group had proved that its mark BET 365 had acquired distinctive character through use.
8        As the Advocate General pointed out in points 5 to 7 of his proposal, in so far as the General Court found, in its unappealable assessment of the facts and evidence, that the Board of Appeal had omitted to take sufficient account of certain items of evidence adduced by bet365 Group to show that the contested mark had acquired distinctive character through use, it was entitled to annul the decision at issue and refer the case back to the Board of Appeal for a new assessment by the latter of all the evidence submitted, without infringing the rules on the allocation of the burden of proof.
9        Consequently, as the Advocate General observed in point 8 of his proposal, the first part must be rejected as manifestly unfounded.
10      By the second part of his sole ground of appeal, Mr Hansen complains that the General Court erred in law by failing to limit its assessment of the acquisition of distinctive character through use by the contested mark to the services in Class 41 for which the mark was registered. Mr Hansen also criticises the General Court for having annulled the decision at issue for all services in Class 41 and not merely the services in that class in respect of which registration had been applied for.
11      That part is based on a misreading of the judgment under appeal. First, as is apparent from paragraph 75 of that judgment, the General Court annulled the decision at issue due to several errors in law and errors as to legal classification of the facts, as well as an incomplete examination of the evidence. Thus, contrary to what is alleged by Mr Hansen, in annulling that decision, the General Court did not find that it had been proved that the contested mark had acquired distinctive character through use for certain of the services in Class 41, but rather that the Board of Appeal had omitted to take into consideration certain items of evidence put forward by bet365 Group that could in fact help to establish whether the contested mark had acquired such distinctive character. Second, as the Advocate General pointed out in point 13 of his proposal and as is explicitly stated in paragraph 77 of the judgment under appeal, the General Court annulled the decision at issue in so far as it concerns the services in Class 41 listed in the registration of the contested mark, and not all services in that class generally.
12      It follows that the second part must also be rejected as manifestly unfounded.
13      By the third part, Mr Hansen criticises the General Court for relying throughout the judgment under appeal on evidence of use relating to only certain EU Member States and for finding, on the basis of that evidence, that EUIPO’s conclusions as to the acquisition by the contested mark of distinctive character through use resulted from an infringement of Article 7(3) of Regulation No 207/2009.
14      In that regard, it must be noted, as the Advocate General stated in point 19 of his proposal, that Mr Hansen does not identify the part of the judgment under appeal at which his argument is directed, with the result that the third part must be rejected as manifestly inadmissible.
15      It should be added that, in so far as Mr Hansen claims that the General Court relied on evidence relating to only some EU Member States in order to annul the decision at issue, he has misread the judgment under appeal.
16      As has already been pointed out, it is apparent from paragraph 75 of the judgment under appeal that the General Court annulled the decision at issue not on the ground that the evidence submitted allowed the distinctive character acquired through use of the contested mark to be established, but on the ground that that decision was insufficiently substantiated by valid grounds, in the light of, first, the various errors in law and errors as to legal classification of the facts referred to in paragraphs 38 to 55 of the judgment under appeal and, second, numerous pieces of evidence that could in fact help to establish whether the contested mark had acquired distinctive character through use, which were submitted by bet365 Group to the Board of Appeal, but were not taken into account by it.
17      Consequently, even if the third part were admissible, it would, in any event, have to be rejected as manifestly unfounded.
18      With regard to the fourth and fifth parts of the sole ground of appeal, they must be rejected as manifestly inadmissible because, under the cloak of alleged errors in law, they are actually attempts to call into question the assessment of the evidence by the General Court, as the Advocate General notes in points 20 to 24 of his proposal.
19      The sixth part must also be dismissed. First, Mr Hansen has not precisely identified the sections of the judgment under appeal at which the argument expounded in that part are directed, contrary to the requirements of the case-law referred to by the Advocate General in point 18 of his proposal. Second, that argument seeks to call into question the General Court’s assessment of certain items of evidence, which, as is apparent from the case-law referred to by the Advocate General in point 22 of his proposal, is not a matter that is subject to review by the Court of Justice on appeal, save where facts or evidence have been distorted, which is not alleged in the present case.
20      It follows from all the foregoing considerations that the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
21      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 that closes the proceedings. Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that Mr Hansen is to bear his 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.      Mr Robert Hansen shall bear his own costs.
Luxembourg, 6 September 2018.
A. Calot Escobar
J. Malenovský
Registrar
President of the Eighth Chamber
*      Language of the case: English.