Alcohol Countermeasure Systems (International) Inc. v European Union Intellectual Property Office.
Date: 2018-11-29
In the first place, it should be borne in mind that, so as not to neglect its role, the EU judicature must examine the various claims and pleas submitted by an applicant, as formulated in his pleadings, without modifying their nature or substance (judgment of 7 June 2018, Ori Martin v Court of Justice of the European Union, C‑463/17 P, EU:C:2018:411, paragraph 18 and the case-law cited).
In the second place, it must be borne in mind that, under 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 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 they distort the facts or evidence, constitute a point of law which is subject as such to review by the Court of Justice on appeal (judgment of 11 October 2017, EUIPO v Cactus, C‑501/15 P, EU:C:2017:750, paragraph 60 and the case-law cited).
It follows directly from the wording of point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 that use of the mark in a form differing from the form in which it was registered is considered use for the purpose of the first subparagraph of that article, so long as the distinctive character of the mark in the form in which it was registered is unaltered. The Court of Justice has previously held that, as was recalled, in essence, by the General Court in paragraph 22 of the judgment under appeal, that provision also applies where that different form is itself registered as a trade mark (see, by analogy, judgment of 25 October 2012, Rintisch, C‑553/11, EU:C:2012:671, paragraphs 20 and 30).
That conclusion is all the more compelling because, as was recalled by the General Court in paragraph 23 of the judgment under appeal, the fundamental condition of genuine use of a trade mark is that, as a consequence of that use, the mark may serve to identify, in the minds of the relevant class of persons, the goods to which it relates as originating from a particular undertaking (see, to that effect, judgment of 18 April 2013, Colloseum Holding, C‑12/12, EU:C:2013:253, paragraph 28). As the General Court, without erring in law, noted in paragraph 25 of the judgment under appeal, the fact that the word sign ‘ALCOLOCK’ was used under the earlier mark or under trade mark No 2 371 210 could not give rise to any difference in the minds of the relevant class of persons as regards the fact that the earlier mark designated goods originating from Lion Laboratories.
Furthermore, it should be borne in mind that, according to the case-law of the Court, a distortion of the facts or the evidence 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 the evidence (judgments of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 69, and of 13 September 2018, Birkenstock Sales v EUIPO, C‑26/17 P, EU:C:2018:714, paragraph 80).
As a preliminary point, it should be noted that it is apparent from the case-law of the Court that, as the appellant observes in its appeal, the determination of the criteria to be employed for the assessment of genuine use of the earlier mark is a question of law and thus falls within the Court’s jurisdiction (see, by analogy, judgment of 11 October 2017, EUIPO v Cactus, C‑501/15 P, EU:C:2017:750, paragraph 64).
However, first, according to the settled case-law of the Court of Justice, an appellant may not rely for the first time before the Court of Justice on grounds of appeal and arguments it did not raise before the General Court. Indeed, to allow a party to put forward for the first time before the Court of Justice such grounds and arguments would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas and arguments debated before the General Court (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 43 and the case-law cited).
In that regard, it should be added that the appellant made reference, in its application at first instance, to a document appended to that application. However, according to the case-law of the Court, it is necessary, for an argument relied on in support of a plea in law to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. A general reference to other documents, even those appended to the application, cannot make up for the absence of the essential arguments in law which must appear in the application (see, to that effect, judgment of 13 June 2013, Versalis v Commission, C‑511/11 P, EU:C:2013:386, paragraph 115). Therefore, it must be held that the General Court was not required to look in the annexes to the application at first instance for possible objections.
According to the settled case-law of the Court of Justice, the duty to state reasons does not require the General Court to provide an account that follows exhaustively and one by one all the arguments put forward by the parties to the dispute, and the reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons why the General Court has not upheld their arguments and that it provides the Court of Justice with sufficient material for it to exercise its powers of review (see, to that effect, judgments of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 54 and the case-law cited, and of 7 June 2018, Ori Martin v Court of Justice of the European Union, C‑463/17 P, EU:C:2018:411, paragraph 26 and the case-law cited).
Furthermore, it should be added, first, that, in so far as the appellant emphasises, in that context, the fact that the sales volumes in question were very low, the requirement of genuine use does not seek to assess commercial success or to review the economic strategy of an undertaking; nor is it intended to restrict trade mark protection to cases where large-scale commercial use has been made of the marks (see, to that effect, judgment of 26 September 2013, Centrotherm Systemtechnik v centrotherm Clean Solutions, C‑609/11 P, EU:C:2013:592, paragraphs 72 and 74).
Without it being necessary to give a ruling on the admissibility of such a ground of appeal, it should be noted that, under Article 65(2) of Regulation No 207/2009, the General Court may annul or alter a decision of a Board of Appeal of EUIPO only ‘on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of [that] Regulation or of any rule of law relating to their application or misuse of power’. It follows that the General Court may annul or alter the decision at issue only if, at the date on which that decision was adopted, it was vitiated by one of those grounds for annulment or alteration. The General Court may not, however, annul or alter that decision on grounds which come into existence subsequent to its adoption (judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraphs 54 and 55, and of 26 October 2016, Westermann Lernspielverlage v EUIPO, C‑482/15 P, EU:C:2016:805, paragraph 27).
Furthermore, in so far as the appellant maintains that Lion Laboratories is now a company established outside the European Union and that that company obtained the cancellation of the contested mark on the basis of the earlier mark registered outside the European Union, it should be noted that the mere communication by a Member State of its intention to leave the European Union in accordance with Article 50 TEU does not have the effect of suspending the application of EU law in that Member State and, consequently, EU law continues in full force and effect in that Member State until the time of its actual withdrawal from the European Union (see, to that effect, judgment of 19 September 2018, RO, C‑327/18 PPU, EU:C:2018:733, paragraph 45).