CELEX: 62018CO0246
Language: en
Date: 2018-09-06 00:00:00
Title: Order of the Court (Eighth Chamber) of 6 September 2018.#Dochirnie pidpryiemstvo Kondyterska korporatsiia "Roshen" v European Union Intellectual Property Office.#Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of a mark representing a crayfish.#Case C-246/18 P.

ORDER OF THE COURT (Eighth Chamber)
6 September 2018 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of a trade mark representing a crayfish)
In Case C‑246/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 6 April 2018,

Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’, established in Kiev (Ukraine), represented by I. Lukauskienė and R. Žabolienė, advokatai,
appellant,
the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO, established in Moscow (Russia),
intervener at first instance,
THE COURT (Eighth Chamber),
composed of J. Malenovský (Rapporteur), President of the Chamber, M. Safjan and D. Šváby, Judges,
Advocate General: Y. Bot,
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, Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’ seeks to have set aside the judgment of the General Court of the European Union of 7 February 2018, Kondyterska korporatsiia ‘Roshen’ v EUIPO — Krasnyiy oktyabr(Representation of a crayfish) (T‑775/16, not published, ‘the judgment under appeal’, EU:T:2018:74), by which the General Court dismissed its action seeking annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 August 2016 (Case R 2419/2015-1), relating to opposition proceedings between Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO and Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’.

2        In support of its appeal, the appellant relies on one single ground, alleging infringement of Article 8(1)(b) 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        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.

4        That provision must be applied in the present case.

5        In that regard, on 22 June 2018, the Advocate General took the following position:
‘1.      For the reasons which I shall discuss hereinafter, I propose that the Court should dismiss the appeal brought against the contested judgment as being manifestly inadmissible and order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court of Justice. 
2.      In support of its appeal, the appellant relies on a single ground, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
3.      That single ground of appeal comprises three parts.
4.      By the first part, the appellant submits that the General Court erred in law in its assessment of the visual and conceptual similarity between the earlier sign and the contested sign. 
5.      It follows from the second subparagraph of Article 256(1) TFEU and from 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. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 28 February 2018, mobile.de v EUIPO, C‑418/16 P, EU:C:2018:128, paragraph 65 and the case-law cited).
6.      Furthermore, the assessment of the similarities between the signs at issue is of a factual nature and, save where the evidence and facts are distorted as mentioned above, it 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).
7.      It must be held that, in support of that first part, the appellant, in paragraphs 30 to 52 of its appeal, merely questions the appraisal of the facts and the assessment of the evidence carried out by the General Court, without, however, invoking any distortion.
8.      Therefore, in view of the abovementioned case-law, the first part of the single ground of appeal must be rejected as being manifestly inadmissible.
9.      By the second part of the single ground of appeal, the appellant submits that the General Court erred in law when assessing the distinctiveness of the earlier mark.
10.       In support of that part, the appellant, in paragraph 56 of its appeal, puts forward a first complaint, alleging that the General Court erred in law by stating that the evidence furnished did not cover any of the relevant territories.
11.      I find again that the appellant, in paragraphs 57 to 61 of its appeal, merely sets out matters of fact without pleading any distortion.
12.      Furthermore, in paragraph 62 of its appeal, the appellant puts forward a second complaint, alleging that the General Court did not analyse its argument that the evidence presented shows the common use of the word element “RAKOVYE SHEJKI” associated with the representation of a crayfish in different styles.
13.      It must be held, first, that that complaint is a word-for-word transcript of paragraph 60 of the application lodged before the General Court and, second, that the appellant fails to demonstrate how the General Court allegedly erred in law. 
14.      According to settled case-law, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. An appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court does not satisfy that requirement (judgment of 20 June 2013, Cañas v Commission, C‑269/12 P, not published, EU:C:2013:415, paragraph 22 and the case-law cited).
15.      In light of the foregoing, the second part of the single ground of appeal must be rejected as being manifestly inadmissible.
16.      Finally, by the third part of the single ground of appeal, the appellant submits that the General Court erred in law in the global assessment of the visual, phonetic and conceptual similarities of the marks at issue for the purpose of determining whether there was a likelihood of confusion. 
17.       It must be pointed out that, far from explaining how the General Court allegedly erred in law in its assessment, the appellant merely reproduces the arguments put before the General Court. Paragraphs 65 to 70 of the appeal are a verbatim transcript of paragraphs 62 to 67 of the application submitted to the General Court. 
18.      Therefore, in accordance with the case-law cited in point 14 of this position, the third part of the single ground of appeal must be rejected as being manifestly inadmissible.
19.            In the light of all the foregoing considerations, the appeal brought by Kondyterska korporatsiia “Roshen” must be dismissed and the latter ordered to pay the costs incurred in the proceedings, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court.’

6        For the same reasons as those given by the Advocate General, the appeal must be dismissed, in its entirety, as being manifestly inadmissible.
 Costs

7        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. Since in this case the present order has been adopted before the appeal was served on the other parties and, consequently, before those other parties could have incurred costs, the appellant must be ordered to bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1.      The appeal is dismissed as being manifestly inadmissible.

2.      Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’ shall bear its own costs.

Luxembourg, 6 September 2018.

A. Calot Escobar
 
J. Malenovský

Registrar      President of the Eighth Chamber

*      Language of the case: English.