Continental Reifen Deutschland GmbH v Compagnie générale des établissements Michelin.
Date: 2017-07-26
It should be noted that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The General Court therefore 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 or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments of 2 September 2010, Calvin Klein TrademarkTrust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49, of 19 March 2015, Mega Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 47 and case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 35 and case-law cited).
It should also be recalled that such distortion must be obvious from the documents before the Court, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, judgments of 20 November 2014, Intra-Presse v OHIM, C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraph 39 and case-law cited, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 36 and case-law cited).
However, it must be recalled that it follows from the case-law of the Court of Justice that an error in law by the General Court does not invalidate the judgment under appeal if the operative part of the judgment is shown to be well founded on other legal grounds (see, to that effect, judgments of 3 October 2013, Rintisch v OHIM, C‑121/12 P, EU:C:2013:639, paragraph 35 and case-law cited, and of 21 July 2016, EUIPO v Grau Ferrer, C‑597/14 P, EU:C:2016:579, paragraph 29 and case-law cited).
In that regard, it must be pointed out that the determination of distinctive character, or lack of distinctive character, of the various elements of a sign and their importance in the overall impression given by the sign involves a weighing up of those criteria that entails an analysis of a factual nature which, unless the facts or evidence have been distorted, falls outside the jurisdiction of the Court of Justice (see, to that effect, judgment of 17 July 2008, L & D v OHIM, C‑488/06 P, EU:C:2008:420, paragraphs 82 and 83; order of 24 March 2011, Muñoz Arraiza v OHIM, C‑388/10 P, not published, EU:C:2011:185, paragraphs 63 and 66; judgments of 6 September 2012, United States Polo Association v OHIM, C‑327/11 P, not published, EU:C:2012:550 paragraphs 57, 59 and 61, and of 21 February 2013, Seven for all mankind v Seven, C‑655/11 P, not published, EU:C:2013:94, paragraph 85).
In particular, in the judgment of 9 September 2010, OHIM v BORCO-Marken-Import Matthiesen (C‑265/09 P, EU:C:2010:508), cited by the appellant in support of its argument, the Court reaffirmed its settled case-law according to which the distinctive character of a mark must always be assessed specifically by reference to the goods or services designated (judgment of 9 September 2010, OHIM v BORCO-Marken-Import Matthiesen, C‑265/09 P, EU:C:2010:508, paragraph 35 and case-law cited). Similarly, although the Court did establish in that judgment that there are certain categories of signs, including single letters, which are less likely prima facie to have distinctive character initially, it did not, however, establish a general, abstract rule that the distinctiveness of such letters must, in all cases, be considered to be weak. On the contrary, the Court reaffirmed the obligation on trade mark authorities to carry out an examination of this matter based on the facts (see, to that effect, judgment of 9 September 2010, OHIM v BORCO-Marken-Import Matthiesen, C‑265/09 P, EU:C:2010:508, paragraph 37).
Second, as regards the absence of sufficient reasoning alleged in the context of the first ground of challenge of the third part of the single ground of appeal, it should be recalled that, in accordance with the Court’s settled case-law, the duty incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds on which the General Court has based its findings and provides the Court of Justice with sufficient information for it to exercise its powers of review on appeal (see, inter alia, the judgment of 20 November 2014, Intra-Presse v OHIM, C‑581/13 P and C‑582/13 P, not published, EU:C:2014:2387, paragraph 53 and case-law cited).
Furthermore, to the extent that, by this ground of challenge, the appellant is seeking to obtain a new assessment of the facts, that ground of challenge is inadmissible in accordance with the case-law set out in paragraph 35 of this judgment, since Continental Reifen Deutschland has not invoked any distortion of the facts or evidence submitted to the General Court (see, by analogy, judgment of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 89).
In this regard, it must be pointed out, in the first place, that, according to recital 8 of Regulation No 207/2009, the assessment of the likelihood of confusion depends on a number of factors including, in particular, the recognition of the trade mark on the market, the association which can be made with the used or registered sign, the degree of similarity between the trade mark and the sign and between the goods or services identified (judgment of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 31).
Thus, the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (judgments of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 33, and of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 44 and case-law cited).
In the second place, the Court of Justice has already held on a number of occasions that, although the distinctive character of an earlier mark must be taken into account when assessing the likelihood of confusion globally, it is, however, only one factor among others involved in that assessment (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 61 and case-law cited).
Furthermore, although it is true that the more distinctive the earlier mark the greater the likelihood of confusion will be, such a likelihood of confusion cannot, however, be precluded where the distinctive character of the earlier mark is weak (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 62 and case-law cited).
Thus, even in a case involving an earlier mark of weak distinctive character, the General Court may hold that there is a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 63 and the case-law cited).