ORDER OF THE COURT (Eighth Chamber)
22 February 2018 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Revocation proceedings — Word mark AN IDEAL WIFE — Declaration of revocation)
In Case C‑529/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 5 September 2017,
Isabel Martín Osete, residing in Paris (France), represented by V. Wellens, avocat,
appellant,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Danielle Rey, residing in Toulouse (France),
intervener at first instance,
THE COURT (Eighth Chamber),
composed of J. Malenovský (Rapporteur), President of the Chamber, M. Safjan and M. Vilaras, Judges,
Advocate General: N. Wahl,
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 her appeal, Ms Isabel Martín Osete asks the Court to set aside the judgment of the General Court of the European Union of 29 June 2017, Martín Osete v EUIPO — Rey(AN IDEAL WIFE and Others) (T‑427/16 to T‑429/16, not published, ‘the judgment under appeal’, EU:T:2017:455), by which the General Court dismissed her actions seeking annulment of the decisions of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 April 2016 (Cases R 1528/2015-2, R 1527/2015-2 and R 1526/2015-2), concerning revocation proceedings between Ms Danielle Rey and Ms Martín Osete.
2        By her appeal, Ms Martín Osete also asks the Court of Justice, principally, to set aside the decisions of 21 April 2016 and, in the alternative, to refer the case back to the General Court.
3        In support of her appeal, the appellant puts forward two grounds of appeal, the first of which is divided into two parts, alleging infringement of Article 51(1)(a) 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, when 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 the appeal in whole or in part.
5        That provision must be applied in the present case.
6        On 18 January 2018, the Advocate General took the following position:
‘1.      For the following reasons, I propose that the Court should dismiss the appeal in the present case by an order adopted under Article 181 of the Rules of Procedure, and order Ms Martín Osete to pay the costs, in accordance with Article 137 and Article 184(1) of those rules.
2.      In support of her appeal, the appellant puts forward two grounds of appeal alleging infringement of Article 51(1)(a) of Regulation No 207/2009, the first of which is divided into two parts. The first ground of appeal alleges (i) that the General Court erred in its assessment of the genuine use of the registered marks; and (ii) that it distorted the facts of the case. The second ground of appeal alleges that the General Court erred in its assessment in that it interpreted the notion of “proper reasons for non-use”, provided for in that article, in an overly restrictive manner.
3.      In the first ground of appeal, the appellant appears to put forward two parts. Firstly, she submits that the General Court erred in law by considering that the evidence adduced by the proprietor of the marks at issue did not prove that, during the relevant period, the marks had been put to genuine use as regards the goods for which they were registered. Secondly, the appellant submits that the General Court distorted the facts when it carried out its assessment of the evidence.
4.      In the first part of the first ground of appeal, the appellant criticises the General Court for not undertaking an overall assessment of the genuine nature of the use of the earlier marks, taking into account all the evidence adduced by the appellant. She submits that, while some of the evidence, taken in isolation, does not satisfy all the relevant factors for proving genuine use of those marks, the evidence taken as a whole is of such a nature as to establish such use.
5.      According to settled case-law of the Court of Justice, referred to by the General Court in paragraphs 19 and 20 of the judgment under appeal, when assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of that trade mark is real. Furthermore, an overall assessment must be conducted which takes account of all of the relevant factors in the particular case (see judgment of 15 July 2015, Deutsche Rockwool Mineralwoll v OHIM — Recticel (λ), T‑215/13, not published, EU:T:2015:518, paragraphs 22 and 23 and the case-law cited).
6.      In that regard, it is clear from the examination conducted by the General Court in paragraphs 26 to 45 of the judgment under appeal that it undertook, on the one hand, an assessment of all the facts and circumstances relevant to establishing whether the commercial exploitation of the trade marks at issue was real, and, on the other hand, an overall assessment of the evidence adduced in that context. The General Court considered in particular that, in the complete absence of official documents such as invoices, sales figures or advertising figures, the documents submitted before the Board of Appeal with regard to turnover, market share, advertising and trade relations with potential suppliers carried no evidentiary weight. Moreover, the documents subsequent to the relevant period did not contradict that finding. Thus, it is on the basis of an overall assessment of the relevant factors, undertaken in paragraph 45 of the judgment, that the General Court upheld the decisions of the Board of Appeal, according to which the extent and frequency of the use of the trade marks during the relevant period could not compensate for the absence of turnover.
7.      Thus, contrary to the appellant’s submissions, the General Court did not undertake an individual assessment of the evidence, but proceeded with an overall assessment of the facts and circumstances as a whole. It follows that the first part of the first ground of appeal is manifestly unfounded.
8.      By the second part of the first ground of appeal, under the guise of an alleged distortion of the facts, the appellant seeks in reality to challenge the General Court’s assessment of the facts and evidence.
9.      It should be recalled that, in an appeal, the Court of Justice has no jurisdiction to establish the facts or to examine the evidence which the General Court accepted in support of those facts, except when there is an allegation of distortion. It is for the General Court alone to assess the value to be attached to the evidence submitted to it. Save where the clear sense of the evidence has been distorted, that assessment therefore does not constitute a point of law which is subject as such to review by the Court of Justice (see judgment of 18 January 2017, Toshiba v Commission, C–623/15 P, not published, EU:C:2017:21, paragraph 39 and the case-law cited, and order of 14 December 2017, Verus v EUIPO, C–101/17 P, not published, EU:C:2017:979, paragraph 28). In that regard, it is settled case-law, first, that it is for the appellant to indicate precisely which evidence has allegedly been distorted by the General Court and to show the errors of assessment which, in his or her view, led to such distortion. Secondly, such distortion must be obvious from the documents on the Court’s file, without any need for a new assessment of the facts and evidence (see judgments of 20 October 2011, PepsiCo v Grupo Promer Mon Graphic, C‑281/10 P, EU:C:2011:679, paragraphs 78 and 79 and the case-law cited, and of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 69 and the case-law cited).
10.      In the present case, the appellant does not identify the evidence that the General Court allegedly distorted and she does not indicate the errors of assessment that it allegedly committed. Consequently, the second part of the first ground of appeal must be rejected as being manifestly inadmissible (see, to that effect, order of 14 December 2017, Verus v EUIPO, C‑101/17 P, not published, EU:C:2017:979, paragraph 31).
11.      It follows from the foregoing that the first ground of appeal is, in part, manifestly unfounded and, in part, manifestly inadmissible.
12.      In the second ground of appeal, the appellant criticises the General Court for accepting an overly restrictive definition of the notion of “proper reasons for non-use”, within the meaning of Article 51(1) of Regulation No 207/2009. The appellant submits that the regulations issued both by the International Fragrance Association and by the European Union rendered the marketing of perfumes overly difficult during the relevant period. It is alleged that the General Court, like the Board of Appeal, erred in not considering those regulations as being “proper reasons for non-use” of the trade marks at issue during the relevant period.
13.      In that regard, the General Court recalled, in paragraph 50 of the judgment under appeal, the case-law of the Court of Justice according to which only obstacles having a sufficiently direct relationship with a trade mark, making its use impossible or unreasonable, and which arise independently of the will of the proprietor of that mark, may be described as “proper reasons for non-use” (judgment of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 96 and the case-law cited).
14.      In paragraph 52 of the judgment under appeal, the General Court held that, as correctly pointed out by the Board of Appeal, the regulations at issue apply to all operators in the perfumes sector and not solely to the appellant, that compliance with the applicable regulations is inherent in any commercial activity, and that the problems associated with the manufacture of products form part of the commercial difficulties faced by any undertaking. It recalled that the notion of “proper reasons for non-use”, within the meaning of Article 51(1)(a) of Regulation No 207/2009, refers more to circumstances unconnected with the trade mark proprietor rather than to circumstances associated with his or her commercial difficulties (see judgment of 18 March 2015, Naazneen Investments v OHIM — Energy Brands (SMART WATER), T‑250/13, not published, EU:T:2015:160, paragraph 66 and the case-law cited). Consequently, the General Court ruled, in paragraph 53 of the judgment, that the Board of Appeal had been right to hold that the appellant could not rely, in this case, on any proper reason for the non-use of the registered trade marks.
15.      It should be noted that, under the guise of a misinterpretation of the notion of “proper reasons for non-use”, within the meaning of that provision, the appellant seeks, in reality, to challenge the factual assessments made by the General Court. As recalled in point 9 above, such assessments fall outside the jurisdiction of the Court of Justice in an appeal, save where these have been distorted by the General Court.
16.       As the appellant has not invoked any distortion of the facts or evidence in support of the second ground of appeal, the latter is manifestly inadmissible.
17.      Accordingly, the appeal must be dismissed in its entirety as being, in part, manifestly inadmissible and, in part, manifestly unfounded.’
7        On the same grounds as those set out by the Advocate General, the appeal must be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.
Costs
8        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. 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 the appellant is to bear her 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.      Ms Isabel Martín Osete shall bear her own costs.
Luxembourg, 22 February 2018.
A. Calot Escobar
J. Malenovský
Registrar
President of the Eighth Chamber
*      Language of the case: English.