European Union Intellectual Property Office v Cactus SA.
Date: 2017-10-11
38


The Court indicated, in paragraphs 29 and 30 of the judgment of 16 February 2017, Brandconcern v EUIPO and Scooters India (C‑577/14 P, ‘the judgment in Brandconcern, EU:C:2017:122), that the IP Translator judgment provided clarifications only on the requirements relating to new EU trade mark registration applications, and thus does not concern trade marks that were already registered at the date of that latter judgment’s delivery. The Court thus inferred, in paragraph 31 of the judgment in Brandconcern, that it therefore could not be considered that the Court, by the IP Translator judgment, had sought to question the validity of the approach set out in Communication No 4/03 as regards trade marks registered before the delivery of that latter judgment.
60


Under 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 they distort the facts or evidence, constitute a point of law which is subject as such to review by the Court of Justice on appeal (judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 52 and the case-law cited).
61


As regards the third alleged error, by which EUIPO criticises the General Court for having based its finding of the equivalence between the signs on the alleged prior knowledge consumers had of the sign as registered, it must be pointed out that findings in relation to the attentiveness, the perception and the attitude of the relevant public are appraisals of fact (see, to that effect, judgment of 12 July 2012, Smart Technologies v OHIM, C‑311/11 P, EU:C:2012:460, paragraph 51 and the case-law cited).
64


The second ground of appeal, however, is admissible in so far as the first and second errors alleged in it concern the criteria in the light of which genuine use of a trade mark in an abbreviated form should be assessed. Contrary to what Cactus maintains, the determination of the criteria to be employed for the global assessment of equivalence of signs from the perspective of their distinctiveness is a question of law falling within the Court of Justice’s jurisdiction.
65


The Court has already held in that regard that it follows directly from the wording of point (a) of the second subparagraph of Article 15(1) of that regulation that the use of the trade mark in a form which differs from the form in which it was registered is regarded as use for the purposes of the first subparagraph of that article provided that the distinctive character of the mark in the form in which it was registered is not altered (judgment of 18 July 2013, Specsavers International Healthcare and Others, C‑252/12, EU:C:2013:497, paragraph 21).
66


It should be recalled that, in so far as it does not impose strict conformity between the form in which the trade mark is used and the form in which the mark was registered, the purpose of point (a) of the second subparagraph of Article 15(1) of that regulation is to allow its proprietor, on the occasion of its commercial exploitation, to make variations in the sign, which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned (see, to that effect, judgment of 18 July 2013, Specsavers International Healthcare and Others, C‑252/12, EU:C:2013:497, paragraph 29).