Pêra-Grave - Sociedade Agrícola, Unipessoal, Lᵈᵃ v Office for Harmonisation in the Internal Market (Trade Marks and Designs).
Date: 2015-07-09
24. As regards, in the first place, the admissibility of the first part of the single ground of appeal, it must be borne in mind that, according to the case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it did not raise before the General Court would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the General Court’s assessment of the pleas argued before it. However, an argument which was not raised at first instance does not constitute a new plea that is inadmissible at the appeal stage if it is simply an amplification of an argument already developed in the context of a plea set out in the application before the General Court (judgment in Areva and Others  v Commission , C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 113 and 114 and the case-law cited).
31. By the second part of its single ground of appeal, the appellant complains that the General Court failed to take into account the impact and weight of the conceptual dissimilarities between the signs in the global assessment of the likelihood of confusion between the marks at issue. It relies, in that regard, on the case-law according to which the conceptual differences between two marks may be such as to counteract to a large extent the visual and phonetic similarities that may exist between them, provided that at least one of the signs has a clear and specific meaning for the relevant public, so that that public is capable of grasping it immediately (judgment in T.I.M.E. ART  v OHIM , C‑171/06 P, EU:C:2007:171, paragraph 49).
36. Although the appellant did not refer expressly at first instance to the case-law arising out of the judgment in T.I.M.E. ART  v OHIM (C‑171/06 P, EU:C:2007:171), the fact remains that it disputed the Board of Appeal’s assessment as regards the weight of the conceptual differences. Consequently, the arguments which the appellant puts forward concerning that judgment are simply an amplification of an argument already developed in the context of a plea set out in the application at first instance, in accordance with the case-law referred to in paragraph 24 of the present judgment.
37. Secondly, by submitting that the General Court should have held that the conceptual content of the mark in respect of which registration is sought sufficed to counteract the slight visual and phonetic similarities between the marks at issue since it had held that the relevant public perceived the expression ‘qta s. josé de peramanca’ as a logical and conceptual whole, the appellant is claiming that the General Court erred in law in not applying the case-law arising out of the judgment in T.I.M.E. ART  v OHIM (C‑171/06 P, EU:C:2007:171). What is involved here is therefore a point of law which may be reviewed by the Court of Justice on appeal, in accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union.
39. As regards, in the second place, the merits of the second part of the ground of appeal, it must be borne in mind that, according to settled case-law, the global assessment of the likelihood of confusion implies that conceptual differences between two signs can counteract visual and phonetic similarities between them, provided that at least one of those signs has a clear and specific meaning for the relevant public, so that that public is capable of grasping it immediately (see, to that effect, judgments in Ruiz-Picasso and Others  v OHIM , C‑361/04 P, EU:C:2006:25, paragraph 20; Mülhens  v OHIM , C‑206/04 P, EU:C:2006:194, paragraph 35; and T.I.M.E. ART  v OHIM , C‑171/06 P, EU:C:2007:171, paragraph 49).
40. It follows that, in order to be able to apply that case-law, the General Court has to hold that at least one of the signs at issue has a clear and specific meaning for the relevant public.
41. It must be pointed out that such a finding is not apparent from the judgment under appeal.
42. In paragraph 47 of that judgment, the General Court did not admit that the relevant public perceived the expression ‘qta s. josé de peramanca’ as a logical and conceptual whole referring to an estate with the name of San José de Peramanca, but, on the contrary, rejected the appellant’s argument that the fact that the relevant public perceived that expression as a logical and conceptual whole, referring to an estate with the name of San José de Peramanca, prevented the attention of that public from being attracted in particular by the element ‘peramanca’.
43. In paragraph 52 of that judgment, the General Court pointed out an inconsistency in the appellant’s arguments as regards the meaning of the word ‘peramanca’. It stated that the appellant submitted, on the one hand, that that word had a meaning because it referred to a region of Portugal which is well known for the quality of the wine produced there and, on the other hand, that that word was devoid of any meaning and had only an average degree of distinctiveness.
44. In those circumstances, the General Court cannot be criticised for not having applied the case-law arising out of the judgment in T.I.M.E. ART  v OHIM  (C‑171/06 P, EU:C:2007:171) in the judgment under appeal.