Groupe Léa Nature v European Union Intellectual Property Office.
Date: 2019-02-28
In that regard, it should be observed that according to settled case-law, to allow a party to put forward for the first time before the Court of Justice pleas and arguments which it did not raise before the General Court 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 25 July 2018, QuaMa Quality Management v EUIPO, C‑139/17 P, not published, EU:C:2018:608, paragraph 44 and the case-law cited).
As regards the first argument under that second branch, alleging the assessment of the distinctive and dominant character of the element ‘so’, it is established case-law that the global assessment of the likelihood of confusion must, as regards the visual, phonetic or conceptual similarity of the marks in question, be based on the overall impression given by them, bearing in mind, in particular, their distinctive and dominant elements (judgment of 18 September 2014, Società Italiana Calzature v OHIM, C‑308/13 P and C‑309/13 P,  not published, EU:C:2014:2234, paragraph 41 and the case-law cited).
In particular, the Court has held that in the context of examination of the likelihood of confusion, assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (judgment of 18 September 2014, Società Italiana Calzature v OHIM, C‑308/13 P and C‑309/13 P,  not published, EU:C:2014:2234, paragraph 42 and the case-law cited).
It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of a dominant element (judgment of 18 September 2014, Società Italiana Calzature v OHIM, C‑308/13 P and C‑309/13 P, not published EU:C:2014:2234, paragraph 43 and the case-law cited).
It must be observed that the finding that there is a likelihood of confusion cannot be subject to a condition that the overall impression produced by the composite sign be dominated by the part of it which is represented by the earlier mark (judgment of 6 October 2005, Medion, C‑120/04, EU:C:2005:594, paragraph 32).
As regards the fourth argument, alleging the failure by the General Court to state reasons, it is established case-law that the reasoning of the General Court in a judgment or an order must be disclosed clearly and unequivocally, in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgments of 1 December 2016, Klement v EUIPO, C‑642/15 P,  not published, EU:C:2016:918, paragraph 24, and of 30 May 2018, L’Oréal v EUIPO, C‑519/17 P and C‑522/17 P to C‑525/17 P, not published, EU:C:2018:348, paragraph 67).
That said, it is clear from settled case-law that the General Court’s reasoning may be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 64 and the case-law cited).
Under the second subparagraph of 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 the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by this Court on appeal (judgment of 25 July 2018, QuaMa Quality Management v EUIPO, C‑139/17 P, not published, EU:C:2018:608, paragraph 33 and the case-law cited).
Furthermore, in so far as Groupe Léa Nature criticises the General Court for having refused, in paragraph 64 of the judgment under appeal, to take account of the market study on the use, by third parties, of registered trade marks containing the term ‘so’ within the European Union and in the same field, it must be held that it is for the General Court alone to assess the value which should be attached to evidence produced to it.  Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, to that effect, judgment of 8 May 2008, Eurohypo v OHIM, C‑304/06 P, EU:C:2008:261, paragraph 33 and the case-law cited). Therefore, such an argument must be rejected as inadmissible.
Moreover, it must be observed that the question of whether the information concerning the market share held is necessary for assessing whether the earlier mark had a reputation comes within the scope of the assessment of facts by EUIPO and, on appeal, by the General Court (see, by analogy, judgment of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraphs 76 to 78).
As regards the second branch of the second ground of appeal, concerning a similarity between the signs at issue, it must be observed at the outset that, given that it is not apparent either from the wording of Article 8(1)(b) or Article 8(5) of Regulation No 207/2009, or from the case-law of the Court of Justice, that the concept of similarity has a different meaning in each of those paragraphs, it follows that, if, in examining the conditions for the application of Article 8(1)(b) of that regulation, the General Court concludes that there is no similarity between the signs at issue, such a finding is equally valid for the application of both Article 8(1)(b) and Article 8(5) of that regulation (see, to that effect, judgment of 10 December 2015, El Corte Inglés v OHIM, C‑603/14 P, EU:C:2015:807, paragraph 39).
As regards the third branch of the second ground of appeal, relating to the existence of a link between the marks at issue, it is settled case-law that the existence of such a link must be assessed globally, taking into account all factors relevant to the circumstances of the case, including, the degree of similarity between the marks at issue; the nature of the goods or services for which the marks at issue were registered, including the degree of closeness or dissimilarity between those goods or services, and the relevant section of the public; the strength of the earlier mark’s reputation; and, the existence of the likelihood of confusion on the part of the public (see, to that effect, judgment of 27 November 2008, Intel Corporation, C‑252/07, EU:C:2008:655, paragraphs 41 and 42).