CELEX: 62017CO0726
Language: en
Date: 2018-07-11 00:00:00
Title: Order of the Court (Tenth Chamber) of 11 July 2018.#Tetra Pharm (1997) Ltd v European Union Intellectual Property Office.#Appeal — EU trade mark — Opposition proceedings — Application for registration of the word mark SeboCalm — Rejection of the application for registration.#Case C-726/17 P.

ORDER OF THE COURT (Tenth Chamber)
11 July 2018 (*)
(Appeal — EU trade mark — Opposition proceedings — Application for registration of the word mark SeboCalm — Rejection of the application for registration)
In Case C‑726/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 December 2017,

Tetra Pharm (1997) Ltd, established in Tel Aviv (Israel), represented by T. Grucelski, adwokat,
appellant,
the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Sebapharma GmbH & Co. KG,

intervener at first instance,
THE COURT (Tenth Chamber),
composed of E. Levits (Rapporteur), President of the Chamber, A. Borg Barthet and M. Berger, Judges,
Advocate General: M. Bobek,
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 Rules of Procedure of the Court,
makes the following

Order

1        By its appeal, Tetra Pharm (1997) Ltd seeks to have set aside the judgment of the General Court of the European Union of 23 October 2017, Tetra Pharm (1997) v EUIPO — Sebapharma (SeboCalm) (T‑441/16, not published, EU:T:2016:747, ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 May 2016 (Case R 852/2015-1) relating to opposition proceedings between Sebapharma GmbH & Co. KG and Tetra Pharm (1997).

2        In support of its appeal, the appellant raises two grounds, alleging infringement by the General Court of the obligation to state reasons and an error of law in its assessment of the likelihood of confusion, respectively.
 The appeal

3        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.

4        That provision must be applied in the present case.

5        On 27 April 2018, the Advocate General took the following position:
‘1.      I propose to the Court to dismiss the appeal lodged by Tetra Pharm (1997) Ltd (“Tetra Pharm”) on the grounds that it is in part manifestly unfounded and in part manifestly inadmissible. Two grounds of appeal are raised by Tetra Pharm against the judgment under appeal.

First ground of appeal: alleged infringement of the obligation to state reasons on which judgment was based

2.      Tetra Pharm alleges that the General Court has not explained in paragraph 67 [of the judgment under appeal why the relevant public, namely the average Slovak-, Bulgarian- or Estonian-speaking consumer,] is not able to understand the meaning of the common English words “calm” and “therm”. It also complains that in that paragraph there is no explanation of the consequences of the finding that such consumers may perceive that those words are different on the assessment of the likelihood of confusion carried out by the General Court. Tetra Pharm considers that this means that the reasoning presented does not enable an understanding of the grounds of the judgment under appeal as regards the impact of [the difference between the two word elements “calm” and “therm” of the marks at issue SeboCalm and SeboTherm,] that could be easily understood and are being perceived as different words by the relevant public.
3.      I do not find that there has been a failure to state reasons. First, in paragraph 67 the General Court holds in favour of the EUIPO’s arguments which are detailed at paragraph 10 of the [decision of the First Board of Appeal of EUIPO of 19 May 2016 (Case R 852/2015-1)]: the average consumer in the relevant public’s lack of linguistic knowledge and understanding of the two words in question are the reason it found that the words could not be understood. Second, there was insufficient evidence in the file to show the contrary view, namely that the average consumer in the relevant public did have a concept of those words (judgment of 20 September 2017, TheTea Board, C‑673/15 P to C‑676/15 P, EU:C:2017:702, paragraph 71). Finally, in the sentence at the end of that paragraph: “although [consumers] may perceive that those words are different”, the term “although” denotes that even though the average consumer can see that there is a factual difference between the two words, that does not mean that their precise meaning can be understood. Therefore, further reasons as to why it was not applied in the assessment of whether there is a likelihood of confusion are unnecessary.
4.      Moreover, and in any case, if it were not to be considered to be clear reasoning, it can certainly be described as implicit reasoning. The General Court is not obliged to give an exhaustive account of its reasoning as long as it is possible for the persons concerned to know the grounds on which the General Court has based itself (judgments of 17 October 2013, Isdin v Bial-Portela, C‑597/12 P, EU:C:2013:672, paragraph 21; of 27 October 2016, Debonair TradingInternacional,C‑537/14 P, not published, EU:C:2016:814, paragraph 32); and of 5 October 2017, Wolf Oil Corps, C‑437/16 P, not published, EU:C:2017:737, paragraph 30).
5.      Seen as a whole, I consider that the reasons on which the General Court has based itself in coming to its decision are clear: that the signs had an average degree of similarity. In coming to that conclusion the General Court undertook a detailed assessment of the signs and decided that they were visually and phonetically similar (paragraphs 40 to 62 of the judgment under appeal) and that a conceptual comparison could not be undertaken because the signs had no precise meaning for the relevant public (paragraphs 63 to 69 of the judgment under appeal). An overall assessment led the General Court to find that there was a likelihood of confusion between the marks for a part of the relevant public (paragraph 76 of the judgment under appeal). 
6.      In my view, it must be concluded that there was no failure by the General Court to state reasons enabling the persons concerned to know the grounds on which its ruling was delivered. I propose therefore that this ground be dismissed as manifestly unfounded. 

Second ground of appeal: error of law in application of test of likelihood of confusion

7.      Tetra Pharm alleges that the General Court erred in law in its application of the test of a likelihood of confusion between the marks under 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)], with reference in particular to paragraphs 33, 35, 51 and 53 of the judgment under appeal.
8.      First, it appears that Tetra Pharm is submitting a new plea — that the relevant public must include experts and that the associated level of attention of that relevant public should therefore have been higher (see paragraph 29 of the judgment under appeal). However, in an appeal the Court’s jurisdiction is confined to a review of the findings of law on the pleas argued before the General Court (judgment of 7 November 2002, Glencore GrainLtd, C‑24/01 P to C‑25/01 P, EU:C:2002:642, paragraph 62). Moreover, even if it were to be suggested that this plea in fact relates to the findings concerning the characteristics of the relevant public and its degree of attention, perception or attitude represent appraisals of fact and are not subject to review (see, to that effect, judgments of 4 May 2017, AugustStorck, C‑417/167 P, not published, EU:C:2017:340, paragraph 52; and of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, EU:C:2016:178, paragraph 59 and the case-law cited).
9.      Second, Tetra Pharm repeats a plea regarding the General Court’s findings regarding the word “sebo” (see paragraph 41 of the judgment under appeal), which is also no more than a request for a factual reassessment of the application submitted to the General Court. If there is no allegation of distortion of the facts, there is no point of law that can be reviewed by this Court (judgments of 4 July 2000, Bergaderm, C‑352/98 P, EU:C:2000:361, paragraph 35; and of 19 March 2015, MEGA Brands, C‑182/14 P, EU:C:2015:187, paragraph 50). 
10.      Third, Tetra Pharm repeats another plea, concerning evidence that the General Court did not take into account concerning the pronunciation of the two marks (see paragraph 57 of the judgment under appeal). If there is no allegation of a distortion of the evidence, a review cannot be carried out by this Court (see judgments of 7 November 2002, Glencore Grain Ltd, C‑24/01 P to C‑25/01 P, EU:C:2002:642, paragraph 65; and of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 59 and the case-law cited).
11.      The above parts of the second ground of appeal therefore constitute a combination of a new plea, repetition of pleas submitted before the General Court, and requests for a factual and evidential reassessment without alleging a distortion of those facts and evidence. As a result, they should be dismissed on the ground that they are manifestly inadmissible. 
12.      In the remaining part of the second ground of appeal, Tetra Pharm alleges that the General Court incorrectly applied the case-law which provides that the consumer, [when confronted with marks composed of two word elements,] attaches greater importance to the first part of the word. It refers to case-law which considers exceptions to that aforementioned principle, and case-law on relatively short word marks. I consider that there is no error of law in not applying that case-law. A review of the dossier does not reveal that there are special circumstances in the case to justify a departure from the rule or that the case-law on relatively short word marks should apply (see paragraph 50 of the judgment under appeal). This part of the plea must therefore be dismissed as manifestly unfounded. 
13.      For these reasons, I am of the view that the appeal should be rejected in its entirety as partly manifestly unfounded and partly manifestly inadmissible.’

6        It must be added, as regards the second ground, that a large part of the appellant’s line of argument relates to the assessment of the dominant character of the word elements of the signs at issue, the linguistic competence of the relevant public and the assessment of the phonetic similarity of those signs. First, the findings of the General Court concerning the dominant character of a word element fall within its exclusive jurisdiction to appraise the facts (order of 16 September 2010, Dominio de la Vega v OHIM, C‑459/09 P, not published, EU:C:2010:533, paragraph 67). Second, the findings relating to the characteristics of the relevant public represent appraisals of fact (order of 11 December 2014, Compagnie des bateaux mouches v OHIM, C‑368/14 P, not published, EU:C:2014:2480, paragraph 23). Third, the assessment of the phonetic perception implies an analysis of a factual nature which is not, save in the case of distortion, subject to review by the Court of Justice (see, to that effect, order of 15 December 2010, Goncharov v OHIM, C‑156/10 P, not published, EU:C:2010:767, paragraph 40).

7        For those reasons and for 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 of the Court of Justice, applicable to the procedure on appeal pursuant to Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings. Since 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, Tetra Pharm (1997) must be ordered to bear its own costs.
On those grounds, the Court (Tenth Chamber) hereby orders:
1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

2.      Tetra Pharm (1997) Ltd shall bear its own costs.

Luxembourg, 11 July 2018.

A. Calot Escobar
 
E. Levits

Registrar      President of the Tenth Chamber

*      Language of the case: English.