FTI Touristik GmbH v European Union Intellectual Property Office.
Date: 2019-07-04
2


Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) was amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21), which entered into force on 23 March 2016. Regulation No 207/2009, as amended, was repealed and replaced, with effect from 1 October 2017, by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). Nonetheless, given the date on which the application for registration at issue in the present case was filed, namely 7 October 2013, which is decisive for the purpose of identifying the applicable substantive law, the present dispute is governed by the substantive provisions of Regulation No 207/2009.
13


As to the admissibility of the first part of the single ground, it must be recalled, first, that it is settled case-law that 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. Whereas the evaluation of those factors is an issue of fact that cannot be reviewed by the Court, failure to take all of those factors into account constitutes an error of law and may, as such, be raised before the Court in the context of an appeal (judgment of 16 June 2011, Union Investment Privatfonds v UniCredito Italiano, C‑317/10 P, EU:C:2011:405, paragraph 45 and the case-law cited).
14


Secondly, the extent of the obligation to state reasons is a question of law reviewable by the Court on appeal (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 453).
17


In that regard, it should be recalled that, according to settled case-law, the duty owed by 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 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 also be implicit, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient information to exercise its powers of review on appeal (judgment of 20 September 2016, Mallis and Others v Commission and ECB, C‑105/15 P to C‑109/15 P, EU:C:2016:702, paragraph 45 and the case-law cited).
33


As is apparent from paragraph 42 of the judgment under appeal, the General Court’s assessment is based on the finding that, first, there is a great difference between the letter ‘y’ and the heart symbol in the mark applied for and, secondly, it is unusual to replace the letter ‘y’ with such a symbol and, accordingly, it is unlikely that the relevant public will detect the letter ‘y’ in the figurative element of the mark applied for. That assessment, in the absence of any allegation, in the present case, on the part of the appellant, of a distortion of the facts thus does not constitute a point of law which is subject, as such, to review by this Court 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).
35


Complaints directed against grounds of the judgment under appeal included purely for the sake of completeness cannot in any event lead to the judgment’s being set aside (judgment of 6 September 2017, Intel v Commission, C‑413/14 P, EU:C:2017:632, paragraph 63 and the case-law cited).
39


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 and evidence are distorted, constitute a point of law which is subject, as such, to review by this Court 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).