ORDER OF THE COURT (Sixth Chamber)

20 September 2017 ( )

(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Opposition proceedings — Application for registration of work mark LITU — Opposition dismissed)

In Case C‑158/17 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 March 2017,

Anton Riemerschmid Weinbrennerei und Likörfabrik GmbH & Co. KG, established in Erding (Germany), represented by P. Koch, abogada,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Sixth Chamber),

composed of E. Regan, President of the Chamber, J.-C. Bonichot and S. Rodin (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having decided, 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, Anton Riemerschmid Weinbrennerei und Likörfabrik GmbH & Co. KG seeks to have set aside the judgment of the General Court of the European Union of 25 January 2017, Anton Riemerschmid Weinbrennerei und Likörfabrik v EUIPO — Viña y Bodega Botalcura (LITU) (T‑187/16, not published, EU:T:2017:30; ‘the judgment under appeal’), by which that Court dismissed its action against the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 February 2016 (Case R 719/2015-2) concerning the confirmation of the rejection of the opposition which it had brought against the application for registration of the EU word mark LITU and which was based on the earlier EU word mark PITU.

2 In addition, Anton Riemerschmid Weinbrennerei und Likörfabrik asks the Court to reject the application for registration of the EU word mark LITU and to order EUIPO to pay the costs.

3 In support of its appeal, the appellant relies on a single ground of appeal, divided into three parts, alleging infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).

The appeal

4 Under Article 181 of the Rules of Procedure of the Court of Justice, 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 4 July 2017, the Advocate General took the following position:

‘1. In accordance with Article 181 of the Rules of Procedure of the Court of Justice, I propose that the Court dismiss the appeal in the case under consideration as, in part, manifestly unfounded and, in part, manifestly inadmissible, for the reasons set out below, and order the appellant to bear its own costs.

2. By the first part of its single ground of appeal, the appellant complains that the General Court failed to accord sufficient importance to the phonetic similarity of the marks at issue insofar as they relate to goods sold extensively in noisy environments with many distractions. Thus, the appellant alleges that, by failing to take account of those specific sales circumstances and by not explaining why they were not relevant to the case, the General Court incorrectly applied Article 8(1)(b) of Regulation No 207/2009.

3. It must, however, be borne in mind that, under 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 lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The establishment of those facts and the assessment of that evidence thus do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal (see order of 21 April 2016, Borde and Carbonium v Commission, C‑279/15 P, not published, EU:C:2016:297, paragraph 28 and the case-law cited).

4. It also follows from the case-law of the Court of Justice that the assessment of the similarities between the signs at issue is of a factual nature and, save where the evidence and facts are distorted, is not subject to review by the Court of Justice. Such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 50 and the case-law cited).

5. It must be noted that the appellant, which has not alleged any distortion of the facts, merely calls into question, by its line of argument, the factual assessment made by the General Court, which rejected, in particular, in paragraph 35 of the judgment under appeal, the appellant’s argument that particular importance should be attached to the phonetic similarity of the marks at issue, since the goods in question are most often ordered in noisy locations, taking the view that that could not call into question the lack of likelihood of confusion between the marks at issue.

6. It follows from the foregoing that the first part of the third ground of appeal must be rejected as manifestly inadmissible.

7. By the second part of its single ground of appeal, the appellant alleges that the General Court took the view that the relevant public would notice the differences between the word marks at issue more easily because of their brevity and because those differences are located at the beginning of the marks. Thus, by applying that reasoning to the present case automatically and without justification, the General Court made an incorrect analysis of the visual and phonetic similarity of the word marks at issue.

8. Nonetheless, it appears that the appellant’s line of argument is founded on a misreading of the judgment under appeal. It must be held that, contrary to the appellant’s submission, it is not apparent from that judgment that the General Court has established an absolute rule that the initial part of a relatively short word mark is likely to engage the attention of the relevant public more than its central or final part.

9. On the contrary, the General Court pursued a line of reasoning detailed in paragraphs 25 and 28 to 30 of the judgment under appeal to analyse the existence of visual and phonetic similarities between the marks at issue and their lack of similarity at a conceptual level. Accordingly, the General Court did not err in confirming, in paragraph 32 of the judgment under appeal, the conclusion drawn by the Board of Appeal that the similarities found between the marks at issue were, however, insufficient to counterbalance the strong difference resulting from their initial letters, a difference which the General Court held was strengthened in this case by the brevity of those marks (paragraphs 32 and 33 of the judgment under appeal.

10. Thus, by all its arguments, the appellant is again seeking to call into question the findings of fact made by the General Court in its assessment of the similarities between the marks at issue and is in fact requesting the Court of Justice to substitute its own assessment for that of the General Court.

11. Since the appellant did not allege any distortion of the facts in the present case, it is therefore appropriate to reject the second part of the single ground of appeal as manifestly inadmissible by virtue of the case-law of the Court of Justice referred to in point 4 of this position.

12. By the third part of its single ground of appeal, the appellant alleges, in essence, that the General Court erred in law by failing to take account, in its overall assessment of the likelihood of confusion, of the fact that the signs at issue cover identical products.

13. In that regard, it is appropriate to note that, in accordance with the settled case-law of the Court of Justice, the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 22; of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 18; and of 22 June 2000, Marca Mode, C‑425/98, EU:C:2000:339, paragraph 40). That global assessment implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between the goods or services covered. Accordingly, a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa (see, to this effect, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 19).

14. Whereas the evaluation of those factors is an issue of fact that cannot be reviewed by the Court of Justice, failure to take all of those factors into account constitutes an error of law and may, as such, be raised before the Court in the context of an appeal (see, to that effect, order of 22 October 2014, Repsol YPF v OHIM, C‑466/13 P, not published, EU:C:2014:2331, paragraph 63 and the case-law cited).

15. It is nevertheless clear from the judgment under appeal that, contrary to the allegations of the appellant, the General Court took account of the identity of the goods at issue in paragraph 34 of that judgment, while holding, following an overall assessment, that that factor, as well as the fact that it was impossible to carry out a conceptual comparison of the signs at issue, was, however, not such as to call into question the lack of likelihood of confusion between the marks at issue for the relevant public with an average level of attention.

16. It follows therefrom that the appellant has no grounds on which to allege that the General Court did not take account, in its assessment of the likelihood of confusion, of the identity of the goods at issue.

17. With regard to the appellant’s argument that the identity of the goods at issue, combined with the visual and phonetic similarities between the marks at issue, is sufficient to prevail over their differences and thus to give rise to a likelihood of confusion, it must be stated that such an argument amounts to criticising the scope which the General Court accorded to that factor in its overall assessment of the likelihood of confusion. In so doing, the appellant is seeking, in reality, to call into question the factual assessment made by the General Court and is requesting the Court of Justice to substitute its own assessment for that of the General Court.

18. As recalled in paragraph 3 of this position, the appraisal of the facts does not, save where the facts are distorted, constitute a point of law subject, as such, to review by the Court of Justice on appeal.

19. Since the appellant has not alleged any distortion of the facts in that regard, in those circumstances the third part of the single ground of appeal must be rejected as in part manifestly unfounded and in part manifestly inadmissible and, consequently, the appeal must be dismissed in its entirety.’

7 For the same reasons as those given 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. 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, Anton Riemerschmid Weinbrennerei und Likörfabrik must be ordered to bear its own costs.

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

1. The appeal is dismissed.

2. Anton Riemerschmid Weinbrennerei und Likörfabrik GmbH & Co. KG shall bear its own costs





Done at Luxembourg, 20 September 2017.





A. Calot Escobar E. Regan