Westermann Lernspielverlage GmbH v European Union Intellectual Property Office.
Date: 2016-10-26
23


It submits that according to the case-law of the Court and, in particular, the judgment of 11 November 1997, SABEL (C‑251/95, EU:C:1997:528, paragraph 22), the likelihood of confusion between the marks at issue must be assessed globally, taking into account all factors relevant to the circumstances of the case and, in particular, the overall impression given by those marks.
27


It must be noted, first of all, that, according to the Court’s settled case-law, 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 a decision against which an action has been brought 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 (see judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraphs 54 and 55, and 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraphs 52 and 53, and order of 30 June 2010, Royal Appliance International v OHIM, C‑448/09 P, not published, EU:C:2010:384, paragraphs 43 and 44).
28


The Court therefore held that a decision which came to be made by a national court in relation to the revocation of the earlier mark on which the opposition is based could not be taken into account by the General Court in its review of the lawfulness of the decision of the Board of Appeal of EUIPO (see, to that effect, judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 55, and 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 53, and order of 30 June 2010, Royal Appliance International v OHIM, C‑448/09 P, not published, EU:C:2010:384, paragraph 45).
35


As to the remainder, it must be recalled that, in accordance with Article 256(1) TFEU and the first subparagraph 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 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 judgment of 11 May 2006, Sunrider v OHIM,C‑416/04 P, EU:C:2006:310, paragraph 49 and the case-law cited, and the order of 4 June 2015, Junited Autoglas Deutschland v OHIM, C‑579/14 P, not published, EU:C:2015:374, paragraph 25 and the case-law cited).
36


Furthermore, such a distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 50 and the case-law cited).