ORDER OF THE COURT (Tenth Chamber)

24 November 2015 ( )

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Community trade mark — Appeal brought by the ‘other party to the proceedings before the Board of Appeal’ who failed to lodge a response before the General Court — No status as intervener before the General Court — Appeal manifestly inadmissible)

In Case C‑206/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 14 April 2015,

Sun Mark Ltd, established in Greenford (United Kingdom),

Bulldog Energy Drink Ltd, established in Stanmore (United Kingdom),

represented by T. Sampson, Barrister,

appellants,

the other parties to the proceedings being:

Red Bull GmbH, established in Fuschl am See (Austria),

applicant at first instance

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant at first instance,

THE COURT (Tenth Chamber),

composed of F. Biltgen, President of the Chamber, A. Borg Barthet (Rapporteur) and E. Levits, Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By their appeal, Sun Mark Ltd (‘Sun Mark’) and Bulldog Energy Drink Ltd (‘Bulldog Energy Drink’) seek the setting aside of the judgment of the General Court of the European Union in Red Bull v OHIM — Sun Mark (BULLDOG) (T‑78/13, EU:T:2015:72) (‘the judgment under appeal’), by which it annulled the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 November 2012 (Case R 107/2012 — 2) relating to opposition proceedings between Red Bull GmbH and Sun Mark Ltd (‘the decision at issue’).

Legal framework

2 Article 56, second paragraph, of the Statute of the Court of Justice of the European Union provides:

‘[A]n appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. However, interveners other than the Member States and the institutions of the Union may bring such an appeal only where the decision of the General Court directly affects them.’

3 Article 134(1) of the Rules of Procedure of the General Court of 2 May 1991, in the version applicable at the date when the applicant lodged the originating application with the General Court (‘the Rules of Procedure’), provides:

‘The parties to the proceedings before the Board of Appeal [of OHIM] other than the applicant may participate, as interveners, in the proceedings before the General Court by responding to the application in the manner and within the period prescribed.’

4 Article 135(1) of the Rules of Procedure reads as follows:

‘[OHIM] and the parties to the proceedings before the Board of Appeal other than the applicant shall lodge their responses to the application within a period of two months from the service of the application.’

5 According to Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1):

‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b) If because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.’

Background to the dispute

6 The facts giving rise to the dispute are summarised in paragraphs 1 to 13 of the judgment under appeal.

7 On 1 July 2010 Sun Mark filed an application for registration of a Community trade mark with OHIM pursuant to Regulation No 207/2009.

8 The trade mark for which registration was sought is the word sign ‘BULLDOG’.

9 The goods in respect of which registration was sought are in Classes 32 and 33 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 (‘the Nice Agreement’).

10 Community trade mark application No 9215567 was published in Community Trade Marks Bulletin No 170/2010 of 10 September 2010.

11 On 12 November 2010, Sun Mark requested OHIM to restrict the list of goods by removing those in Class 33 of that agreement.

12 On 15 November 2010, Sun Mark applied to OHIM to remove ‘beers’, identified as such, from the list of goods in Class 32 of that agreement.

13 By letters of 22 and 25 November 2010, OHIM accepted the requests for limitation, stated that the list of goods covered by the trade mark application in Class 32 has read as follows: ‘mineral and aerated waters; energy drinks; isotonic beverages; carbonated beverages (non-alcoholic, and beers); carbonated drinks (non-alcoholic, and beers); fruit flavored carbonated drinks; fruit drinks and fruit juices; non-alcoholic drinks and beverages’.

14 On 3 December 2010, Red Bull GmbH (‘Red Bull’), filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009, against registration of the mark applied for.

15 The opposition was based, inter alia, on the following earlier trade marks:

– international word mark BULL, registered on 15 July 2005 under No 867085, producing its effect in the European Union, designating goods in Class 32 and corresponding to the following description: ‘Non-alcoholic beverages, including refreshing drinks, energy drinks, whey beverages, isotonic, hypertonic and hypotonic drinks (for use and/or as required by athletes); non-alcoholic malt beverages; mineral water and aerated waters; fruit drinks and fruit juices; syrups, essences and other preparations for making beverages as well as effervescent (sherbet) tablets and effervescent powders for drinks and non-alcoholic cocktails’;

– Austrian word mark BULL, registered on 29 August 2008 under No 246682 for the same goods as those covered by the international word mark BULL described above, it being made clear that ‘powders for drinks’ must be understood as being ‘effervescent powders for drinks’;

– Austrian word mark RED BULL, registered on 15 January 2008 under No 242873, designating in particular, first, the same goods as those covered by the Austrian word mark BULL, described above and, second, goods in Class 33 corresponding to the following description: ‘Alcoholic beverages (except beers); hot and mixed alcoholic drinks, including alcoholic energy drinks, mulled wine and mixed drinks containing milk; alcoholic malt beverages, malt liquor; wines, spirits and liqueurs; alcoholic preparations for making beverages; spirit or wine-based cocktails and aperitifs; beverages containing wine’;

– the international word mark RED BULL, registered on 19 March 2008 under No 961854, having effect within the territory of the Member States of the European Union, with the exception of the Republic of Croatia, the Republic of Malta, the Republic of Austria and the United Kingdom of Great Britain and Northern Ireland, for, inter alia, the same goods in Class 32 as those covered by the international and national word marks described above; and

– the international word mark RED BULL, registered on 19 March 2008 under No 972114, having effect within the territory of the Member States of the European Union, with the exception of the Republic of Croatia, the Republic of Malta, the Republic of Austria and the United Kingdom of Great Britain and Northern Ireland, for, inter alia, the same goods in Class 33 as those covered by the Austrian word mark RED BULL described above.

16 The grounds put forward in support of the opposition were those referred to in Article 8(1)(b) and Article 8(5) of Regulation No 207/2009.

17 On 17 November 2011, the Opposition Division of OHIM upheld the opposition in its entirety and ordered Sun Mark to pay the costs.

18 On 13 January 2012, Sun Mark filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.

19 By the decision at issue, the Second Board of Appeal of OHIM upheld the appeal and annulled the Opposition Division’s decision. In particular it held that the goods covered by the trade mark for which registration was sought and those covered by the earlier word marks were identical, but, as regards the comparison with the earlier word marks BULL, the signs at issue had a fairly low degree of visual and phonetic similarities and were conceptually different. It also took the view that, as regards the comparison with the earlier word marks RED BULL, these signs had a low degree of visual and phonetic similarity and were conceptually different. It accordingly decided that the mark applied for and the earlier marks could not be regarded as similar overall because of their significant conceptual differences and that, consequently, there was no likelihood of confusion for the purposes of Article 8(1)(b) of Regulation No 207/2009.

The proceedings before the Court of First Instance and the judgment under appeal

20 By application lodged at the Registry of the General Court on 7 February 2013, Red Bull brought an action for annulment of the decision at issue. In support of its action it put forward two pleas alleging infringement of Article 8(1)(b) and Article 8(5) of Regulation No 207/2009 respectively.

21 As regards the examination of the first plea in law, the scope of which was limited to the assessment of whether there was a likelihood of confusion between the mark applied for and the earlier word marks BULL, the General Court held that, having regard to the fact that the goods at issue were completely identical and the overall resemblance between the signs at issue, the likelihood of confusion had been proved.

22 The General Court accordingly annulled the decision at issue on the ground that the Board of Appeal had infringed Article 8(1)(b) of Regulation No 207/2009 and that there therefore was no need to rule upon the second plea in law alleging an infringement of Article 8(5) of Regulation No 207/2009.

Form of order sought before the Court of Justice

23 By their appeal, Sun Mark and Bulldog Energy Drink ask the Court to:

– declare that they are entitled to bring the present appeal against the judgment under appeal;

– set aside the judgment under appeal;

– reinstate the decision at issue, and

– order Red Bull to pay the costs of the appeal.

The appeal

24 Under Article 181 of its Rules of Procedure, where an 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.

25 In support of their appeal, Sun Mark and Bulldog Energy Drink argue, as a preliminary point, that they are entitled to bring the present appeal and, as to the substance, raise a single plea alleging the infringement of Article 8(1)(b) of Regulation No 207/2009.

Arguments of the appellants

26 Sun Mark and Bulldog Energy Drink submit that the fact that they did not take part in the proceedings before the General Court, in particular by not presenting their own submissions, does not deprive them of the right to bring an appeal, in accordance with the terms of Article 56, second paragraph, of the Statute of the Court of Justice or Article 134 of the Rules of Procedure of the General Court.

27 It does not follow from those two articles that the status as a party before the General Court of the parties to the proceedings before the Board of Appeal of OHIM is subject to the condition that they have actively participated in the proceedings before the General Court. Moreover, those two articles do not expressly provide that such inaction automatically has the consequence of depriving one party to the proceedings before the Board of Appeal of OHIM of the right to bring an appeal against a decision of the General Court relating to those proceedings. Such a consequence would have to be expressly stated. That is not the case.

28 It must be held that Sun Mark and Bulldog Energy Drink, as applicants for the trade mark BULLDOG, supported OHIM’s forms of order before the General Court, in so far as the decision at issue upheld their application.

Findings of the Court

29 Under Article 56, second paragraph, of the Statute of the Court of Justice, an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. However, interveners other than the Member States and the institutions of the Union may bring such an appeal only where the decision of the General Court directly affects them.

30 It follows from the wording of Article 134(1) of the Rules of Procedure of the General Court that, in order to be considered an intervener before the General Court, a party to the proceedings before the Board of Appeal of OHIM other than the applicant before the General Court must have responded to the application in the manner and within the period prescribed.

31 Pursuant to Article 135(1) of the Rules of Procedure of the General Court, OHIM and the parties to the proceedings before the Board of Appeal other than the applicant are to lodge their responses to the application within a period of two months from the service of the application.

32 In the present case, it is common ground that Sun Mark did not respond to the originating application before the General Court although it was served with that document. Sun Mark was mentioned in the judgment under appeal only as the ‘other party to the proceedings before the Board of Appeal of OHIM’ and not as ‘the other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court’.

33 In particular, Sun Mark and Bulldog Energy Drink did not propose their own forms of order before the General Court and failed to indicate whether they supported those of one or other of the parties. In that connection, the fact that they did not respond to the originating application cannot be interpreted as meaning that they supported OHIM’s forms of order before the General Court.

34 Therefore, they cannot be regarded as having responded to the originating application in the manner and within the period prescribed, within the meaning of Article 134(1) of the Rules of Procedure of the General Court. Accordingly, they were not interveners before that court and cannot, under Article 56, second paragraph, of the Statute of the Court of Justice, bring an appeal against the judgment under appeal (see, to that effect, order in Enercon v Gamesa Eólica, C‑35/14, EU:C:2015:158, paragraphs 24 and 25).

35 It follows that the present appeal is manifestly inadmissible.

Costs

36 Under Article 137 of the Rules of Procedure of the Court of Justice, 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 judgment or order which closes the proceedings.

37 Therefore, the appellants must be ordered to bear their own costs.

On those grounds, the Court (Tenth Chamber) hereby:

1. Dismisses the appeal.

2. Orders Sun Mark Ltd and Bulldog Energy Drink Ltd to bear their own costs.

[Signatures]