Kenzo Tsujimoto v European Union Intellectual Property Office.
Date: 2018-05-30
42


As regards the admissibility of the first ground of appeal, it must be borne in mind that, in accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals lie on points of law only. The General Court consequently has exclusive jurisdiction to find and evaluate the relevant facts and to assess the evidence The appraisal of those facts and evidence does not, therefore, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49 and the case-law cited).
56


So far as concerns, in the first place, the merits of the argument that the General Court failed to compare the conflicting marks, each considered as a whole, it should be remembered that according to settled case-law, the existence of a link between the earlier mark and the mark in respect of which registration is sought, within the meaning of Article 8(5) of Regulation No 207/2009, must be assessed globally, account being taken of all factors relevant to the circumstances of the case, including in particular the degree of distinctiveness of the earlier mark and the degree of similarity between the marks at issue, which requires the existence, in particular, of elements of visual, aural or conceptual similarity (see judgments of 23 October 2003, Adidas-Salomon and Adidas Benelux, C‑408/01, EU:C:2003:582, paragraph 28, and of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraphs 52 and 64).
82


As regards the first argument put forward in support of the fourth part of the second ground of appeal, concerning a failure to state reasons, it should be remembered that, according to settled case-law, the Court of Justice does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, and that the General Court’s reasoning may therefore be implicit, on condition that it enables the persons concerned to know why it has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraph 38 and the case-law cited).
86


In so far as that argument is directed against the judgments under appeal, it should be remembered that the Court has already interpreted the concept of ‘due cause’, provided for in Article 5(2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), as meaning that it may not only include objectively overriding reasons but may also relate to the subjective interests of a third party using a sign which is identical or similar to the mark with a reputation (judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 45).
87


Furthermore, the Court has also stated that since Article 5(2) and Article 4(4)(a) of First Directive 89/104 are worded in essentially identical terms and are designed to give trade marks with a reputation the same protection, the interpretation given for the former provision applied to the latter (see, in particular, judgments of 27 November 2008, Intel Corporation, C‑252/07, EU:C:2008:655, paragraph 25, and of 9 January 2003, Davidoff, C‑292/00, EU:C:2003:9, paragraph 17).
89


Accordingly, as is stated by the Advocate General in point 34 of her Opinion, the protection conferred by that Article 8(5) to trade marks with a reputation is extended. The specific condition of that protection consists of a use without due cause of a sign, identical or similar to a registered mark, which would take unfair advantage of, or would be detrimental to, the distinctive character or the reputation of that mark (see, inter alia, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 33 and the case-law cited).
90


Nevertheless, as is clear from Article 8(5) of Regulation No 207/2009, the user of a sign similar to a mark with reputation may rely on ‘due cause’ for the purposes of using that sign, that being an expression of the general objective of that regulation, which is to strike a balance between, on the one hand, the interests of the proprietor of a trade mark in safeguarding the essential function of that mark and, on the other, the interests of a third party in using, in the course of trade, such a sign for the purposes of denoting the goods and services that it markets (see, to that effect, judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraphs 41 and 43).
91


In so doing, the claim by a third party that there is due cause for using a sign which is similar to a mark with a reputation cannot lead to the recognition, for the benefit of that third party, of the rights connected with a registered mark, but rather obliges the proprietor of the mark with a reputation to tolerate the use of the similar sign (judgment of 6 February 2014, Leidseplein Beheer and de Vries, C‑65/12, EU:C:2014:49, paragraph 46).