PepsiCo, Inc. v Grupo Promer Mon Graphic SA.
Date: 2011-10-20
45. It is, however, settled case-law that the General Court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal of the facts thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal (Case C‑470/00 P Parliament  v Ripa di Meana and Others  [2004] ECR I‑4167, paragraph 40 and case‑law cited).
53. It should be noted, first, that Regulation No 6/2002 does not define the concept of the ‘informed user’. However, as the Advocate General correctly observed in points 43 and 44 of his Opinion, that concept must be understood as lying somewhere between that of the average consumer, applicable in trade mark matters, who need not have any specific knowledge and who, as a rule, makes no direct comparison between the trade marks in conflict, and the sectoral expert, who is an expert with detailed technical expertise. Thus, the concept of the informed user may be understood as referring, not to a user of average attention, but to a particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question.
55. Second, as the Advocate General observed in points 51 and 52 of his Opinion, it is true that the very nature of the informed user as defined above means that, when possible, he will make a direct comparison between the designs at issue. However, it cannot be ruled out that such a comparison may be impracticable or uncommon in the sector concerned, in particular because of specific circumstances or the characteristics of the devices which the designs at issue represent.
56. Therefore, the General Court cannot reasonably be criticised as having erred in law on the ground that it assessed the overall impression produced by the designs in conflict without starting from the premiss that an informed user would in all likelihood make a direct comparison of those designs.
57. That is true all the more so since, in the absence of any precise indications to that effect in the context of Regulation No 6/2002, the European Union legislature cannot be regarded as having intended to limit the assessment of potential designs to a direct comparison.
58. It follows that, even if the General Court’s formulation – in paragraph 77 of the judgment under appeal – that ‘that similarity would not be remembered by the informed user in the overall impression of the designs at issue’ might indicate, when taken out of context, that the General Court based its reasoning on an indirect method of comparison based on an imperfect recollection, it does not reveal any error on the General Court’s part.
59. Third, as regards the informed user’s level of attention, it should be noted that, although the informed user is not the well-informed and reasonably observant and circumspect average consumer who normally perceives a design as a whole and does not proceed to analyse its various details (see, by analogy, Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraphs 25 and 26), he is also not an expert or specialist capable of observing in detail the minimal differences that may exist between the designs in conflict. Thus, the qualifier ‘informed’ suggests that, without being a designer or a technical expert, the user knows the various designs which exist in the sector concerned, possesses a certain degree of knowledge with regard to the features which those designs normally include, and, as a result of his interest in the products concerned, shows a relatively high degree of attention when he uses them.
66. In that context, it should be recalled that the General Court has jurisdiction to conduct a full review of the legality of OHIM’s assessment of the particulars submitted by an applicant (see Case C‑263/09 P Edwin  v OHIM  [2011] ECR I‑0000, paragraph 52).
67. Admittedly, by analogy with the judgment in Schräder v CPVO , the General Court may afford OHIM some latitude, in particular where OHIM is called upon to perform highly technical assessments, and restrict itself, in terms of the scope of its review of the Board of Appeal’s decisions in industrial design matters, to an examination of manifest errors of assessment.
78. The Court has already held that, given the exceptional nature of a complaint that there has been a distortion of the facts, Article 256 TFEU, Article 58, first paragraph, of the Statute of the Court of Justice of the European Union and Article 112(1)(c) 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 (see, to that effect, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 50).
79. 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 evidence (Case C‑16/06 P Les Éditions Albert René  v OHIM  [2008] ECR I‑10053, paragraph 69 and the case-law cited).