Pensa Pharma, SA v European Union Intellectual Property Office (EUIPO).
Date: 2016-09-22
It should be recalled that, given the exceptional nature of a ground 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 (judgment
         of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 69).
In that regard, it is necessary to bear in mind that it follows from Article 64(1) of Regulation No 207/2009 that, through
         the effect of the appeal before it, the Board of Appeal of EUIPO is called upon to carry out a new, full examination of the
         merits of the case, in terms of both law and fact (see, by analogy, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 57).
However, the judicial review exercised by the General Court cannot consist of a mere repetition of a review previously carried
         out by the Board of Appeal of EUIPO (judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 55).
Proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion,
         such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that
         decision and to adduce evidence in support of those pleas (judgment of 8 December 2011, KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:816, paragraph 131).
In that regard, it should be recalled that the obligation to state reasons is an essential procedural requirement which must
         be distinguished from the question whether the reasons given are correct, the latter being a matter going to the substantive
         legality of the contested measure (judgment of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited). The reasoning of a decision consists in a formal statement
         of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive
         legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which
         are incorrect (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2008:392, paragraph 181).
Of course, it follows from Article 65 of Regulation No 207/2009 that the purpose of actions before the General Court is to
         review the legality of the decisions of the Boards of Appeal of EUIPO and that, as a result, facts not submitted by the parties
         before the departments of EUIPO cannot be submitted at the stage of the appeal brought before the General Court. Neither can
         the latter re-evaluate the factual circumstances in the light of evidence adduced for the first time before it, since the
         legality of a decision of a Board of Appeal of EUIPO must be assessed in the light of the information available to it when
         it adopted that decision (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 54, and of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraphs 136 to 138).
However, it should be noted that, if the grounds of a decision of the General Court disclose an infringement of EU law but
         its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about
         the annulment of that decision, and a substitution of grounds must be made (judgment of 1 October 2015, Electrabel and Dunamenti Erőmű v Commission, C‑357/14 P, ECR, EU:C:2015:642, paragraph 108 and the case-law cited).
It should be pointed out that, in accordance with the settled case-law of the Court of Justice, pursuant to 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 has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence.
         The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of
         law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments of 28 May 1998, New Holland Ford v Commission, C‑8/95 P, EU:C:1998:257, paragraph 25, and 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).
In that regard, it should be noted that the assessment of the similarities between the signs at issue is of a factual nature
         and, save where the evidence and facts are distorted, is not subject to review by the Court of Justice on appeal. 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 the evidence (see judgments of 28 May 1998, New Holland Ford v Commission, C‑8/95 P, EU:C:1998:257, paragraph 72, and of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 50).