ORDER OF THE COURT (Ninth Chamber)

13 December 2018 ( )

(Application for interpretation — Inadmissibility)

In Case C‑118/18 P-INT,

APPLICATION for an interpretation of the order of 28 June 2018, Hochmann Marketing v EUIPO (C‑118/18 P, not published, EU:C:2018:522), made on 27 September 2018, pursuant to Article 43 of the Statute of the Court of Justice of the European Union and Article 158 of the Court’s Rules of Procedure,

Hochmann Marketing GmbH, formerly Bittorrent Marketing GmbH, established in Neu-Isenburg (Germany), represented by J. Jennings, Rechtsanwalt,

THE COURT (Ninth Chamber),

composed of C. Lycourgos, President of the Tenth Chamber, acting as President of the Ninth Chamber, E. Juhász and C. Vajda (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 53(2) of the Court’s Rules of Procedure,

makes the following

Order

1 By application lodged at the Court Registry on 27 September 2018, Hochmann Marketing GmbH lodged an application for the interpretation of paragraphs 3 to 13 and 20 to 26 of the grounds, and of paragraph 1 of the operative part of the order of 28 June 2018, Hochmann Marketing v EUIPO (C‑118/18 P, not published, ‘the order which the Court is asked to interpret’, EU:C:2018:522).

2 Hochmann Marketing has asked the Court to interpret:

‘1. The phrase “there is no obvious reason — notwithstanding the temporary unavailability of the appellant’s agent due to illness — why a prudent proprietor of a trade mark would have been forced to expose himself to the risk of a late transmission” in paragraphs 5, 10, 11, 13, 26 and No. 1 of the operative part of the [order which the Court is asked to interpret],

to the effect that it is clear in which manner a prudent trade mark proprietor can foresee, that the representative will only miss the deadline because of a central fax machine defective on the day of transmission, since the risk of failure to meet the deadline would have existed even without the representative’s illness and the extension of the deadline, and

2. the phrase “a message from [the European Union Intellectual Property Office (EUIPO)] indicating to the appellant that the evidence which it had submitted had reached EUIPO within the time limit was not necessary for the purpose of taking those steps” in paragraphs 5, 12, 13, 26 and No. 1 of the operative part of the [order which the Court is asked to interpret],

to the effect that it is clear in which manner a prudent representative can see whether the evidence submitted has been submitted within the time limit if there is no communication from EUIPO at its application justifying an application to restore the previous state or the continuation of proceedings, and

3. the phrase “the allegation of an infringement of Article 47 of the Charter of Fundamental Rights of the European Union, in that (i) EUIPO did not respond to the request of the appellant’s agent for confirmation as to whether that office had received the faxes in question and (ii) the Board of Appeal did not take into account the evidence submitted by the appellant in the proceedings before EUIPO, was not raised in the application lodged before the General Court [of the European Union]. That part of the first ground of appeal is therefore manifestly inadmissible” in paragraphs 5 to 9, 12, 13 and 26, and No. 1 of the operative part of the [order which the Court is asked to interpret],

to the effect that it is clear in which manner a trade mark proprietor with only one fileable pleading with a side limitation can still present relevant facts at the oral hearing and that the discussed facts are also taken into account for the decision, and

4. the phrase “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” in recitals 3 and 4 and No. 1 of the operative part of the [order which the Court is asked to interpret],

to the effect that the failure to designate Article 59, second sentence, of the Statute of the Court of Justice also indicates that, in addition to Article 181 of the Rules of Procedure, Article 59, second sentence, of the Statute of the Court of Justice has also applied, and

5. the phrase “the General Court, by finding in paragraph 56 of [its judgment of 12 December 2017, Hochmann Marketing v EUIPO — BitTorrent (bittorrent) (T‑771/15, not published, EU:T:2017:887)] that EUIPO was not obliged to take into account a judgment of the Landgericht Berlin (Regional Court, Berlin, Germany), by which that court held that the appellant had put the German trade mark bittorrent to genuine use, infringed Article 76 of [Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1),]” in paragraphs 21 to 23 and No. 1 of the operative part of the [order which the Court is asked to interpret],

as to the extent to which the Court of Justice, when naming the Berlin Regional Court, may have meant the Berlin Court of Appeal, and

6. the phrase “in the assessment of the genuine use of an EU trade mark, the decision of a national court concerning the genuine use of a national trade mark can neither bind EUIPO nor replace EUIPO’s assessment of the evidence, and that is the case even if that national trade mark is identical to the EU trade mark” in recitals 20 to 23 and No. 1 of the operative part of the [order which the Court is asked to interpret],

as to the extent to which German Union trade mark courts are in fact independent and may independently further develop the case-law of the Court of Justice, as for example in [the judgment of 19 December 2012, Leno Merken (C‑149/11, EU:C:2012:816)], so that a use of an Union trade mark which preserves rights can also be established on the basis of use which preserves rights in Germany, and

7. the phrase “however, the appellant does explain to what extent the findings of the General Court are vitiated by an error of law but, as in its action before the General Court, the appellant challenges only the Board of Appeal’s assessment of the evidence” in recitals 24 and 25, and No. 1 of the operative part of the [order which the Court is asked to interpret],

as to the extent that it is not apparent from the statement of appeal of 12 February 2018 in recitals 86 to 100 filed by the appellant that only the evidence of the Board of Appeal was called into question.’

3 Hochmann Marketing requests that the original of the decision providing an interpretation be annexed to the original of the interpreted decision, and that a note of the original of the decision producing an interpretation be made in the margin of the original of the interpreted decision.

4 Furthermore, Hochmann Marketing requests the Court to order the other parties to the proceedings to pay the costs.

The order which the Court is asked to interpret

5 By the order which the Court is asked to interpret, the Court declared that:

‘1. The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

... ’

The application

6 Under Article 53(2) of the Rules of Procedure, where a request or an application is manifestly inadmissible, the Court may, after hearing the Advocate General, at any time decide to give a decision by reasoned order without taking further steps in the proceedings. In the present case, that provision, which falls under Title II of the Rules of Procedure, containing common procedural provisions, should be applied.

7 Article 158(1) of the Rules of Procedure provides that, in accordance with Article 43 of the Statute of the Court of Justice of the European Union, if the meaning or scope of a judgment or order is in doubt, the Court is to construe it on application by any party or any institution of the European Union establishing an interest therein.

8 It should be noted that, according to the Court’s case-law, an application for interpretation must, in order to be admissible, concern the operative part of the judgment or order in question, and the essential grounds thereof, and seek to resolve an obscurity or ambiguity that may affect the meaning or scope of that judgment or that order, in so far as it was required to decide the particular case before it (order of 11 July 2013, Commission v Italy, C‑496/09 INT, EU:C:2013:461, paragraph 8 and the case-law cited).

9 In the present case, the application for interpretation clearly does not satisfy those requirements.

10 Paragraph 1 of the operative part of the order which the Court is asked to interpret and paragraphs 3 to 13 and 20 to 26 of the grounds of that order dismisses the appeal in Case C‑118/18 P as being, in part, manifestly inadmissible and, in part, manifestly unfounded. Thus the order which the Court is asked to interpret decided the particular case before it.

11 It is for the appellant to specify, in its application for interpretation, the reasons why the operative part of the order which the Court is asked to interpret and the essential grounds of that order contain an ambiguity that affects its meaning and scope in so far as the order decided the particular case before it.

12 To that end, the appellant requests the Court, by the seven heads of its application, to interpret the grounds set out in paragraphs 3 to 13 and 20 to 26 of that order. In each head of its application, the appellant also formally refers to paragraph 1 of the operative part of the order.

13 However, a reading of paragraph 1 of the operative part of the order which the Court is asked to interpret in the light of paragraphs 3 to 13 and 20 to 26 of the grounds of that order does not reveal any ambiguity affecting the conclusion that the Court decided the particular case before it by declaring the appeal, in part, manifestly inadmissible and, in part, manifestly unfounded.

14 It is clear from the application for interpretation that in none of the seven heads of its application does the appellant submit that there is any difficulty as to the meaning and scope of paragraph 1 of the operative part and the essential grounds of the order which the Court is asked to interpret.

15 It follows that, by its application for interpretation, under cover of alleged difficulty in ascertaining the meaning and scope of the order which the Court is asked to interpret, in so far as it decided the particular case before it, Hochmann Marketing is in fact seeking, by the seven heads of that application, to call into question the consequences of the operative part of that order. Calling those consequences into question cannot be reconciled with Article 43 of the Statute of the Court of Justice of the European Union, with Article 158(1) of the Rules of Procedure, or with the force of res judicata which attaches to judgments and orders of the Court (see, to that effect, order of 11 July 2013, Commission v Italy, C‑496/09 INT, EU:C:2013:461, paragraph 11).

16 Since it is clearly not based on any difficulty as to the meaning and scope of the order which the Court is asked to interpret, the present application for interpretation must be declared manifestly inadmissible.

Costs

17 Under Article 137 of the Rules of Procedure, a decision as to costs is to be given in the order which closes the proceedings. In the present case, since the present order was adopted before the application for interpretation was served on the other parties to the proceedings and, therefore, before those parties could have incurred costs, it is appropriate to order the appellant to bear its own costs.

On those grounds, the Court (Ninth Chamber) hereby orders:

1. The application for interpretation is dismissed in its entirety as manifestly inadmissible.

2. Hochmann Marketing GmbH shall bear its own costs.

Luxembourg, 13 December 2018.





A. Calot Escobar C. Lycourgos