CELEX: 62018CO0800
Language: en
Date: 2019-07-11 00:00:00
Title: Order of the Court (Ninth Chamber) of 11 July 2019.#Haskovo Chamber of Commerce and Industry v European Union Intellectual Property Office.#Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Invalidity proceedings — Word mark DEVIN — Declaration of invalidity.#Case C-800/18 P.

ORDER OF THE COURT (Ninth Chamber)
11 July 2019  (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Invalidity proceedings — Word mark DEVIN — Declaration of invalidity)
In Case C‑800/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 19 December 2018,

Haskovo Chamber of Commerce and Industry, established in Haskovo (Bulgaria), represented by I. Pakidanska and D. Dimitrova, advokati,
appellant,
the other parties to the proceedings being:

Devin AD, established in Devin (Bulgaria), represented by B. Van Asbroeck, avocat,  
applicant at first instance,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,
THE COURT (Ninth Chamber),
composed of K. Jürimäe, President of the Chamber, D. Šváby and S. Rodin (Rapporteur), Judges,
Advocate General: E. Sharpston,
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 181 of the Court’s Rules of Procedure,
makes the following

Order

1        By its appeal, the Haskovo Chamber of Commerce and Industry (Bulgaria) seeks to have set aside the judgment of the General Court of the European Union of 25 October 2018, Devin v EUIPO — Haskovo (DEVIN) (T‑122/17, EU:T:2018:719) (‘the judgment under appeal’), by which that court upheld in part the action brought by Devin AD against the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO), of 2 December 2016 (Case R 579/2016-2), relating to invalidity proceedings between Devin and the Haskovo Chamber of Commerce and Industry (‘the contested decision’).

2        In support of its appeal, the appellant puts forward a sole ground of appeal, which has five parts to it and which alleges infringement of Article 52(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

3        Pursuant to 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.

4        It is appropriate to apply that provision in the present case.

5        On 11 May 2019, the Advocate General adopted the following position:
‘1.      The Haskovo Chamber of Commerce and Industry has appealed against the judgment under appeal. That judgment partially upheld the action brought by Devin against the contested decision, relating to invalidity proceedings regarding the European Union trade mark “DEVIN”, registered for goods in Class 32 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 contested mark”). 
2.      By the contested decision, the Board of Appeal upheld the decision of the Cancellation Division of EUIPO to accept a request for a declaration of invalidity of that mark based on Article 7(1)(c) of Regulation No 207/2009 (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p.1)).  It considered that the contested mark was descriptive on the grounds that the Bulgarian town of Devin was known to the general public in Bulgaria and a significant part of consumers in neighbouring countries such as Greece and Romania, especially as a famous spa town; and that the name of that town was linked by the relevant public with the category of goods falling within Class 32 and covered by the contested mark, especially mineral waters. 
3.      Devin brought an action before the General Court seeking, inter alia, annulment of the contested decision. The General Court upheld the first part of the first plea raised before it and found, in  paragraph 92 of the judgment under appeal, that the Board of Appeal had failed to establish a sufficient degree of recognition of the town of Devin by the average European Union consumer, in particular Greek or Romanian consumers, enabling it to be found that the average consumer would associate the word “devin” with a town in Bulgaria. It went on to uphold that head of claim and annulled the contested decision without examining the other arguments put forward.
4.      I refer the Court to the judgment under appeal for further details.
5.      The appellant asks the Court to set aside the judgment under appeal and to order Devin to pay the costs. In support of its appeal, it puts forward a sole ground, in which it claims that the General Court erred in finding that the contested mark was not descriptive of the geographical origin of the goods in Class 32 of the Nice Agreement which that mark is intended to cover.  There are five parts to that sole ground of appeal.
6.      By the first part of the sole ground of appeal, the appellant claims that the General Court, when it assessed whether the Board of Appeal had committed an error of law in finding that the mark at issue was descriptive having regard to the degree of recognition by the relevant public of the term “devin” as a geographical name,  required a significantly higher level of familiarity with that term among the relevant public for the application of Article 7(1)(c) of Regulation No 207/2009 than that defined by the settled case-law. 
7.      That argument is, in my view, based on an erroneous reading of the judgment under appeal.  In  paragraph 48 of that judgment, the General Court found that the Board of Appeal had erred in the definition of the relevant public, in that it had failed to take into account the entire relevant public, consisting of “the average consumer of the European Union, in particular from Greece and Romania” and that it had instead focused on only one section of that public, namely “foreign tourists visiting Bulgaria or Devin”.  The General Court, having correctly taken into consideration all the relevant public, held, having regard to the case-law cited in  paragraph 18 of the judgment under appeal and which the appellant does not contest, that the Board of Appeal had applied “a wrong test” which led it to an incorrect factual assessment of the perception of the word “devin” by the relevant public.  In  paragraph 94 of that judgment, the General Court stated in this connection that “the part of the relevant public that knows that name as a geographical place represents only a very small and negligible minority of one or a few percent at most”.  The General Court did not therefore err in law by thus defining the relevant public for the purposes of assessing the degree of recognition of the town of Devin by the average consumer of the European Union. Accordingly, the first part of the sole ground of appeal is, in my view, manifestly unfounded.
8.      By the second part of the sole ground of appeal, the appellant alleges that the General Court (i) erred in law by considering all of the elements of fact and evidence separately; (ii) wrongly drew a distinction between the perception of the contested mark by the relevant public in Romania and Greece, on the one hand, and the perception of that mark by the consumers in all other Member States, on the other hand; and,  in the light of the evidence (including decisions of national authorities in the European Union),  erred in its assessment of the knowledge of the town Devin by the relevant public outside Bulgaria;  and, lastly,  (iii) failed to take into account in its assessment of the perception by the relevant public of the term “devin” as referring to a geographical place in Bulgaria either the category of goods concerned or the characteristics of the place designated by the name Devin. 
9.      I consider that the second part of the sole ground of appeal is manifestly inadmissible in part and manifestly unfounded in part.
10.      The appellant advances no legal or substantive basis for its assertion that all elements of fact and evidence must be assessed in their integrity.  Its argument in that regard is unsubstantiated. In reality, by its arguments in support of that aspect of the second part of the sole ground of appeal, it seeks to obtain a re-examination of the findings and assessments made by the General Court as to the facts and evidence. Since the appellant does not claim that the General Court distorted the facts, this aspect of the second part of the sole ground of appeal is manifestly inadmissible (see, inter alia, judgment of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 26 and the case-law cited).  The appellant’s reliance on national decisions is moreover not a relevant criterion for the purposes of the General Court’s appreciation.  It is settled case law that the EU trade mark regime is an autonomous system and that it applies independently of any national system (see judgment of 12 December 2013, Rivella International v OHIM, C‑445/12 P, EU:C:2013:826, paragraphs 48 and 49 and the case-law cited).  That aspect of the second part of the sole ground of appeal is therefore manifestly unfounded. 
11.      By the third part of the sole ground of appeal, the appellant claims that the General Court incorrectly held,  in  paragraph 66 of the judgment under appeal that “the Cancellation Division’s assertion that the geographical name Devin, in the future, would potentially be understood by the public in the European Union as a description of the geographical origin of the relevant goods, ... [was] not supported by the facts of the case and [was] a mere hypothesis”.  It considers that a number of evidential and factual elements should have led that court to adopt the contrary view.  However, since the appellant does not claim that the General Court distorted the facts, this part of the appellant’s argument does not constitute a point of law and is not therefore subject upon appeal to review by the Court of Justice (see the case-law cited in  point 10 above). It is accordingly manifestly inadmissible.
12.      By the fourth part of the sole ground of appeal, the appellant contends that the General Court erred in law in concluding that the general interest in preserving the availability of a geographical name such as that of the spa town of Devin can be protected without requiring the cancellation of the contested mark.  The appellant claims that the legal provisions in relation to the limitation of the exclusive right of a trade mark proprietor, namely Article 9(2)(c) and Article 12(1)(b) of Regulation No 207/2009, are not applicable to the case at hand.
13.      In my view, that argument is manifestly unfounded.
14.      The findings reached by the General Court in  paragraphs 75 to 80 of the judgment under appeal do not detract from its finding in  paragraph 67 of that judgment that the word “Devin” is not recognised as a designation of geographical origin by the average consumer in Member States of the European Union other than the Republic of Bulgaria.  The General Court made clear in  paragraph 80 of the judgment under appeal that its Article 12(1)(b) assessment was a “legislative and jurisprudential reminder” which “[did] not amount to advocating a minimum control of the grounds for refusal in Article 7 of Regulation No 207/2009  …”.  The General Court also stated in  paragraph 92 of the judgment under appeal that it held that the Board of Appeal had not established the existence of a sufficient degree of recognition of the town of Devin by the average European Union consumer “in view of the above considerations, in particular paragraphs 32 to 67” of that judgment. The argument that the appellant advances by the fourth part of the sole ground of appeal is therefore based on a misreading of the judgment under appeal.  While the appellant also contends, under the fourth part of the sole ground of appeal, that the General Court wrongly found,  in  paragraphs 79 and 89 of the judgment under appeal, that the award of the contested mark acted as an impediment to other companies, that argument is not, subject to there being a distortion of the evidence — which is not claimed in the present case — susceptible to review by the Court of Justice. It is accordingly manifestly inadmissible.
15.      Accordingly, the fourth part of the sole ground of appeal is partly manifestly inadmissible and partly manifestly unfounded. 
16.      In the fifth part of the sole ground of appeal, the appellant maintains that by finding in  paragraphs 93 and 94 of the judgment under appeal that the percentage of the part of the relevant public that knew the name “Devin” as a geographical place appeared, prima facie, inferior to that of the part of the relevant public that knew Devin as a mineral water trade  mark, the General Court recognised a certain degree of distinctiveness of the contested trade  mark without, however, supporting its assessment by arguments in that regard. The appellant submits that that arbitrary assessment calls into question the objectivity of the General Court.
17.      The appellant however has not adduced any probative evidence in support of its arguments alleging of a lack of objectivity on the part of the General Court. It follows that the fifth part of the sole ground of appeal is manifestly unfounded. The findings of the General Court in  paragraphs 32 to 67 of the judgment under appeal, on which its conclusion is based, would in any event remain unaffected.
18.      I therefore conclude that the five parts of the sole ground of appeal are, variously, manifestly inadmissible, manifestly unfounded or partly manifestly inadmissible and partly manifestly unfounded.  I therefore recommend that the Court should dismiss the appeal under Article 181 of its Rules of Procedure.
19.      Under Article 137 of the Rules of Procedure of the Court, which applies to appeals by virtue of Article 184(1) thereof, the order terminating a case should also rule on the costs.  Since present appeal has not been notified to the defendant, the latter has not incurred costs in connection with the appeal. The appellant should therefore bear its own costs.’

6        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

7        Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since in this case the present order has been adopted before the appeal was served on the other parties and, consequently, before those parties could have incurred costs, it must be held that the appellant is to bear its own costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1.      The appeal is dismissed as in part manifestly inadmissible and in part manifestly unfounded.

2.      Haskovo Chamber of Commerce and Industry shall bear its own costs.

Luxembourg, 11 July 2019.

A. Calot Escobar
 
K. Jürimäe

Registrar
 
President of the Ninth Chamber

*      Language of the case: English.