Provisional text
ORDER OF THE COURT (Tenth Chamber)
1 December 2016 (1)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of the word mark MITOCHRON — Partial rejection of the application for registration — Likelihood of confusion — Regulation (EC) No 207/2009 — Article 8(1)(b))
In Case C‑401/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 July 2016,
Market Watch Franchise &amp; Consulting Inc., established in Freeport (Bahamas), represented by J. Korab, Rechtsanwalt,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Tenth Chamber),
composed of M. Berger, President of the Chamber, A. Borg Barthet and F. Biltgen (Rapporteur), Judges,
Advocate General: J. Kokott,
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 its appeal, Market Watch Franchise & Consulting Inc. asks the Court to set aside the judgment of the General Court of the European Union of 13 May 2016, Market Watch v EUIPO — El Corte Inglés (MITOCHRON) (T‑62/15, not published, EU:T:2016:304) (‘the judgment under appeal’), by which that Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 November 2014 (Case R 508/2014-2), relating to opposition proceedings between El Corte Inglés SA and Market Watch Franchise & Consulting.
2        In support of its appeal, the appellant puts forward two grounds of appeal, alleging that there were procedural irregularities before the General Court and that the General Court infringed EU law.
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        It is appropriate to apply that provision to the present case.
5        On 21 October 2016, the Advocate General took the following position:
‘I am of the view that the appeal in the case in question should be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded and that Market Watch Franchise & Consulting … should be ordered to pay the costs in accordance with Article 137 and Article 184(1) of the Rules of Procedure of the Court for the following reasons:
The first ground of appeal, alleging that there were procedural irregularities before the General Court
1.      In the context of its first ground of appeal, the appellant submits that the General Court infringed its right to a fair hearing by not, in spite of its reasoned requests to that effect, granting it the possibility of replying to EUIPO’s response.
2.      In that regard, it must be borne in mind that, it is true that, according to Article 135(2) of the Rules of Procedure of the General Court of 2 May 1991, which still applies to the proceedings before the General Court in the present case pursuant to Article 227(6) of the Rules of Procedure of the General Court of 4 March 2015, in proceedings relating to intellectual property rights, “the application and the responses [could] be supplemented by replies and rejoinders by the parties … where the President, on a reasoned application …, consider[ed] such further pleading necessary…”. However, since the decision whether or not to allow the appellant to lodge a reply was a matter for the General Court’s discretion, that Court’s refusal of an application to lodge a reply in no way infringed the rules of EU law (see order of 22 October 2010, Longevity Health Products v OHIM, C‑84/10 P, not published, EU:C:2010:628, paragraph 24).
3.      Furthermore, it is true that the Court has jurisdiction, in an appeal, to verify whether procedural irregularities adversely affecting the appellant’s interests were committed by the General Court (order of 4 September 2014, Metropolis Inmobiliarias y Restauraciones v OHIM, C‑509/13 P, not published, EU:C:2014:2173, paragraph 56). However, it is for the appellant who is relying on such an irregularity to establish that that irregularity adversely affects its interests (order of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraph 34). In the present case, the appellant has failed to establish that the General Court’s rejection of its application to lodge a reply adversely affected its interests.
4.      In those circumstances, the first ground of appeal must be rejected as being manifestly unfounded.
The second ground of appeal, alleging infringement of EU law
5.      First of all, the appellant complains that the General Court did not examine the merits of its arguments and limited itself to stating that the obvious similarities between the marks at issue were sufficient to find that there was a likelihood of confusion. However, in so far as the appellant does not identify either the arguments which the General Court allegedly failed to examine or the elements in relation to which the General Court allegedly limited itself to finding that there were obvious similarities, that complaint must be rejected as manifestly inadmissible (see, to that effect, order of 11 September 2014, Think Schuhwerk v OHIM, C‑521/13 P, EU:C:2014:2222, paragraph 27).
6.      Next, the appellant calls into question the General Court’s assessments, first, regarding the level of attention of the relevant public and, secondly, regarding the phonetic, conceptual and typographical similarities between the signs at issue. Those assessments are of a factual nature and are not, save where the facts are distorted, which has not been put forward in the present case, subject to review by the Court of Justice on appeal (judgment of 4 October 2007, Henkel v OHIM, C‑144/06 P, EU:C:2007:577, paragraph 51, and order of 30 January 2014, Industrias Alen v The Clorox Company, C‑422/12 P, EU:C:2014:57, paragraphs 37 and 38). Likewise, in so far as the appellant reproduces in almost identical terms some of the arguments it submitted before the General Court, its appeal amounts in reality to no more than a request for re-examination of the application submitted at first instance, which the Court of Justice does not have jurisdiction to undertake (order of 29 November 2012, Hrbek v OHIM, C‑42/12 P, not published, EU:C:2012:765, paragraph 53). It follows that the appellant’s arguments regarding the relevant public and the similarity of the signs at issue must be rejected as manifestly inadmissible.
7.      Lastly, the appellant submits that any likelihood of confusion between the marks at issue must be ruled out, because the goods covered by those marks are not intended to be sold in the same territories. That argument must be rejected as manifestly unfounded. It is apparent from the case-law of the Court of Justice that it does not follow from 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)] that, for an EU trade mark to be refused registration under that provision, the likelihood of confusion must exist in all Member States and in all language areas of the [European] Union. The unitary character of the EU trade mark, as laid down in Article 1(2) of Regulation No 207/2009, means that an earlier EU trade mark can be relied on in opposition proceedings against any application for registration of an EU trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (order of 16 September 2010, Dominio de la Vega v OHIM, C‑459/09 P, not published, EU:C:2010:533, paragraphs 29 and 30). Since, in the present case, the General Court found, in paragraph 49 of the judgment under appeal, that there was a likelihood of confusion on the part of the Italian-speaking public, that was therefore sufficient for registration of the later mark to be refused. Moreover, as particular marketing strategies for the goods at issue may vary over time depending on the wishes of the proprietors of those marks, it is inappropriate to take those strategies into account for the purposes of analysing whether there will be a likelihood of confusion between those marks (judgment of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59).
8.      Consequently, the second ground of appeal must be rejected as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
9.      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.’
6        On the same grounds as those set out by the Advocate General, the appeal must be dismissed.
Costs
7        Under Article 137 of the Rules of Procedure of the Court of Justice, which is applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since this order has been adopted before service of the appeal on the defendant and therefore before the latter has been able to incur costs, Market Watch Franchise & Consulting must be ordered to bear its own costs.
On those grounds, the Court (Tenth Chamber) hereby orders:
1.      The appeal is dismissed.
2.      Market Watch Franchise &amp; Consulting Inc. shall pay its own costs.
Luxembourg, 1 December 2016.
A. Calot Escobar
M. Berger
Registrar
President of the Tenth Chamber
1 Language of the case: English.