ORDER OF THE COURT (Tenth Chamber)

11 January 2018 ( )

(Appeal — Article 181 of the Rules of Procedure — Regulation (EC) No 207/2009 — EU trade mark — Figurative mark containing the word elements ‘Art’s Cafè’ — Article 51(1)(a) — Declaration of revocation — Article 15(1), second paragraph, point (a) — No genuine use of the trade mark — Probative value of the evidence)

In Case C‑559/17 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 September 2017,

Cafés Pont SL, established in Sabadell (Spain), represented by E. Manresa Medina, abogado,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Giordano Vini SpA, established in Diano d’Alba (Italy), represented by F. Jacobacci and L. Ghedina, avvocati,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of E. Levits, President of the Chamber, M. Berger (Rapporteur) and F. Biltgen, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

makes the following

Order

1 By its appeal, Cafés Pont SL asks the Court, first, to set aside the judgment of the General Court of the European Union of 20 July 2017, Cafés Pont v EUIPO — Giordano Vini (Art’s Cafè) (T‑309/16, not published, EU:T:2017:535), by which the General Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 April 2016 (Case R 1110/2015-2), relating to revocation proceedings between Giordano Vini SpA and Cafés Pont SL, and, secondly, to order EUIPO and Giordano Vini to pay the costs.

The appeal

2 Pursuant to 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.

3 That provision must be applied in the present case.

4 On 27 November 2017, the Advocate General took the following position:

‘For the reasons which I shall discuss below, I propose that the Court should dismiss the appeal brought in Case C‑559/17 P, Cafés Pont v EUIPO, as manifestly inadmissible and order the appellant to pay the costs, in accordance with Article 137 of the Rules of Procedure of the Court of Justice.

The appellant relies on a single ground of appeal alleging that the General Court, in paragraphs 19 to 21 of its judgment of 20 July 2017, Cafés Pont v EUIPO — Giordano Vini (Art’s Cafè) (T‑309/16, not published, EU:T:2017:535), erred in finding that the evidence provided was not capable of demonstrating the genuine use of the mark at issue during the relevant period.

1. That ground may be dismissed as manifestly inadmissible in so far as it seeks to have the Court carry out a fresh examination of the evidence, which is a matter to be appraised by the General Court alone.

2. It is apparent from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only.

3. Furthermore, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before it. That assessment does not, therefore, constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (judgments of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40, and of 16 June 2016, Evonik Degussa andAlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23). Moreover, 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 28 January 2016, Éditions Odile Jacob v Commission, C‑514/14 P, not published, EU:C:2016:55, paragraph 73 and the case-law cited).

4. In the present case, by its appeal, the appellant confines itself to challenging, before the Court, the definitive assessment made by the General Court of the facts and evidence adduced by it concerning the genuine use of the mark at issue, without invoking the existence of any distortion of that evidence by the General Court.

5. Therefore, those criticisms are manifestly inadmissible.

6. In view of the foregoing, the single ground of appeal raised by the applicant must be rejected as manifestly inadmissible.

7. In the light of all those considerations, the appeal brought by Cafés Pont must therefore be dismissed and the latter be ordered to pay the costs incurred in the proceedings, in accordance with Article 137 of the Rules of Procedure of the Court of Justice.’

5 On the same grounds as those stated by the Advocate General, the appeal must be dismissed.

Costs

6 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 order which closes the proceedings. In the present case, since the present order was adopted before the appeal was served on the other parties and, therefore, before they could have incurred costs, the appellant must be ordered to bear its own costs.

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

1. The appeal is dismissed.

2. Cafés Pont SL shall bear its own costs.

Luxembourg, 11 January 2018.





A. Calot Escobar E. Levits