Herbert Neuman and Others v José Manuel Baena Grupo SA.
Date: 2012-10-18
37. In that context, it should be recalled that, under Article 61(2) of Regulation No 6/2002, an action may be brought before the General Court against decisions of the Boards of Appeal of OHIM for infringement of the Treaty, of that regulation or of any rule of law relating to their application. It follows that the General Court has jurisdiction to conduct a full review of the legality of OHIM’s assessment of the particulars submitted by an applicant (see Case C-263/09 P Edwin v OHIM [2011] ECR I-5853, paragraph 52, and Case C-281/10 P PepsiCo  v Grupo Promer Mon Graphic [2011] ECR I-10153, paragraph 66).
38. Accordingly, pursuant to that article, the General Court is called upon to assess the legality of the decisions of the Boards of Appeal by reviewing their application of European Union law, having regard, in particular, to the facts which were submitted to them (see, by analogy, Case C-16/06 P Les Éditions Albert René  v OHIM  [2008] ECR I-10053, paragraph 38, and order of 28 March 2011 in Case C-418/10 P Herhof  v OHIM , paragraph 47).
39. In particular, the General Court can carry out a full review of the legality of the decisions of OHIM’s Boards of Appeal, if necessary examining whether those boards have made a correct legal classification of the facts of the dispute or whether their assessment of the facts submitted to them was flawed (see, by analogy, Les Éditions Albert René  v OHIM , paragraph 39, and Herhof  v OHIM , paragraph 48).
40. Where it is called upon to assess the legality of a decision of the Board of Appeal of OHIM, the General Court cannot be bound by an incorrect assessment of the facts by that board, since that assessment is part of the findings whose legality is being disputed before the General Court (see, by analogy, Les Éditions Albert René  v OHIM , paragraph 48).
41. Admittedly, the General Court may afford OHIM some latitude, in particular where OHIM is called upon to perform highly technical assessments, and restrict itself, in terms of the scope of its review of the Board of Appeal’s decisions in industrial design matters, to an examination of manifest errors of assessment ( PepsiCo  v Grupo Promer Mon Graphic , paragraph 67).
44. It follows that, since Baena Grupo called into question the Board of Appeal’s assessment relating to the overall impression produced on the informed user by each of the silhouettes at issue, the General Court was competent to examine the Board of Appeal’s assessment of the similarity of the earlier mark and the contested design (see, by analogy, Les Éditions Albert René v OHIM , paragraph 47).
53. With regard, first, to the alleged error in law committed by the General Court when comparing the earlier mark and the contested design, it should be noted, first, that Regulation No 6/2002 does not include a definition of the concept of ‘informed user’ that it applies. However, that concept must be understood as lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks at issue, and the sectoral expert, who is an expert with detailed technical expertise. Thus, the concept of the ‘informed user’ may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question (see PepsiCo  v Grupo Promer Mon Graphic , paragraph 53).
54. In that regard, it is true that the very nature of the informed user, as defined by the Court, means that, when possible, he will make a direct comparison between the earlier mark and the contested design. However, it cannot be ruled out that such a comparison may be impracticable or uncommon in the sector concerned, in particular because of specific circumstances or the characteristics of the items which the earlier mark and the contested design represent (see, to that effect, PepsiCo  v Grupo Promer Mon Graphic , paragraph 55).
55. Therefore, the General Court cannot reasonably be criticised as having erred in law on the ground that it assessed the overall impression produced by the earlier mark and the contested design without starting from the premiss that an informed user would in all likelihood make a direct comparison of them (see, to that effect, PepsiCo  v Grupo Promer Mon Graphic , paragraph 56).
56. That is true all the more so since, in the absence of any precise indications to that effect in Regulation No 6/2002, the European Union legislature cannot be regarded as having intended to limit the assessment of designs to a direct comparison ( PepsiCo  v Grupo Promer Mon Graphic , paragraph 57).
66. It is, however, settled case-law that the General Court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is apparent from the documents submitted to it, and to appraise those facts. That appraisal of the facts thus does 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 in an appeal (Case C-144/06 P Henkel  v OHIM  [2007] ECR I-8109, paragraph 49 and case-law cited).
72. According to Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. The Court’s jurisdiction is confined, in an appeal, to a review of the findings of law on the pleas argued before the General Court (see, in particular, Case C-136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I-1981, paragraph 59; judgment of 15 March 2007 in Case C-171/06 P T.I.M.E. ART v OHIM , not published in the ECR, paragraph 24, and judgment of 20 September 2007 in Case C-193/06 P Nestlé  v OHIM , not published in the ECR, paragraph 56).
79. In that regard, it should be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court (see judgment of 4 October 2007 in Case C-311/05 P Naipes Heraclio Fournier v OHIM , paragraph 51 and the case-law cited).
80. It is settled case-law that that judgments of the General Court must contain an adequate statement of reasons to enable the Court of Justice to exercise its power of review (see, in particular, Naipes Heraclio Fournier v OHIM , paragraph 52 and the case-law cited).