Naazneen Investments Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2016-03-17
Thus, where, without even including an argument specifically identifying the error of law allegedly vitiating the judgment
         under appeal, an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General
         Court, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons
         under the above provisions. Such an appeal amounts in reality to no more than a request for re-examination of the application
         submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, to that effect, inter
         alia, order in Rajani v OHIM, C‑559/08 P, EU:C:2010:529, paragraph 41, and judgment in Reber Holding v OHIM, C‑141/13 P, EU:C:2014:2089, paragraph 54).
However, where an appellant is disputing the General Court’s interpretation or application of European Union law, the points
         of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not base
         his appeal on pleas in law and arguments already relied on before the General Court in that way, an appeal would be deprived
         of part of its purpose (see, to that effect, inter alia, judgment in Helena Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 110).
It is settled case-law of the Court that that obligation to state reasons has the dual purpose of enabling interested parties
         to know the purported justification for the measure taken so as to be able to defend their rights and of enabling the Courts
         of the European Union to exercise their jurisdiction to review the legality of the decision (judgments in Helena Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 111, and Storck v OHIM, C‑96/11 P, EU:C:2012:537, paragraph 86).
However, according to the case-law of the Court, the obligation on OHIM to state reasons, under Article 75 of Regulation No 207/2009,
         may be discharged without it being necessary to respond expressly and exhaustively to all the arguments put forward by an
         applicant (see, to that effect, judgments in Helena Rubinstein and L’Oréal v OHIM, C‑100/11 P, EU:C:2012:285, paragraph 112, and Storck v OHIM, C‑96/11 P, EU:C:2012:537, paragraph 88).
It should be recalled that, as the General Court stated correctly in paragraphs 25 and 26 of the judgment under appeal, there
         is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the
         identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those
         goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark.
         When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to
         establishing whether the commercial exploitation of the mark in the course of trade is real, particularly whether such use
         is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services
         protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency
         of use of the mark (judgment in Reber Holding v OHIM, C‑141/13 P, EU:C:2014:2089, paragraph 29 and the case-law cited).
As regards, in the first place, the taking into account of the affidavits, it must be recalled that under Article 256 TFEU
         and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, 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 (see, inter alia, judgment
         in Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 38, and order in Arnoldo Mondadori Editore v OHIM, C‑548/14 P, EU:C:2015:624, paragraph 38).
It must be stated that, by its arguments, the appellant is merely calling in question the General Court’s assessment, in paragraph 30
         of the judgment under appeal, of the evidential value of those affidavits and is thereby essentially asking the Court of Justice
         to substitute its own assessment of the facts and evidence for that of the General Court (see, by analogy, judgment in Centrotherm Systemtechnik v OHIM, C‑610/11 P, EU:C:2013:593, paragraph 44). That line of argument is, therefore, inadmissible.
In the fifth place, with regard to the allegation that the extracts from Gondwana’s website, in Annex 35 to the appellant’s
         letter of 16 September 2011, were distorted, it should be recalled that, given the exceptional nature of a complaint alleging
         distortion of the facts and evidence, Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice
         of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court provide, in particular, that an appellant
         must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal
         which, in its view, led to that distortion. Such 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 (order in Adler Modemärkte v OHIM, C‑343/14 P, EU:C:2015:310, paragraph 43 and the case-law cited).
It is clear that, since the objective of proper reasons is to make it possible to justify situations in which there is no
         genuine use of the mark in order to avoid revocation of the mark, and their function is thus closely linked to that of genuine
         use (judgment in Häupl, C‑246/05, EU:C:2007:340, paragraph 44), the ‘non-use’ referred to in the first subparagraph of Article 15(1) and Article 51(1)(a)
         of Regulation No 207/2009 must necessarily be understood as referring to a failure to put the trade mark to genuine use within
         the meaning of the first part of those provisions, including, therefore, both a complete failure to use a mark and limited
         use of a mark.
As regards, in the second place, the effect of the revocation proceedings, it should be recalled that, according to the case-law
         of the Court, only obstacles having a sufficiently direct relationship with a trade mark making its use impossible or unreasonable,
         and which arise independently of the will of the proprietor of that mark, may be described as ‘proper reasons’ for non-use
         of that mark. It must be assessed on a case-by-case basis whether a change in the strategy of the undertaking to circumvent
         the obstacle under consideration would make the use of that mark unreasonable (judgment in Häupl, C‑246/05, EU:C:2007:340, paragraph 54).