Republic of Poland v European Union Intellectual Property Office.
Date: 2019-01-16
As regards the admissibility of the first ground of appeal, it must be borne in mind that, 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, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. Those findings and the appraisal of that evidence do not, therefore, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 30 May 2018, Tsujimoto v EUIPO, C‑85/16 P and C‑86/16 P, EU:C:2018:349, paragraph 42).
In that regard, it should be noted that, according to settled case-law, the global assessment of likelihood of confusion must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression created by them, bearing in mind, in particular, their distinctive and dominant components (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 34, and of 3 September 2009, Aceites del Sur-Coosur/Koipe, C‑498/07 P, EU:C:2009:503, paragraph 60).
More particularly, 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 (judgments of 3 September 2009, Aceites del Sur-Coosur v Koipe, C‑498/07 P, EU:C:2009:503, paragraph 61, and of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 32 and the case-law cited).
In any event, it is settled case-law that the EUIPO guidelines are not binding legal acts for the purpose of interpreting provisions of EU law and that the legality of the decisions of the Boards of Appeal of EUIPO must be assessed solely on the basis of Regulation No 207/2009 as interpreted by the EU judicature and not on the basis of a decision-making practice previous to those guidelines. A decision concerning the registration of an EU trade mark which the Board of Appeal may take under Regulation No 207/2009 falls within the scope of circumscribed powers and is not a matter of discretion (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65, and of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48, and order of 14 April 2016, KS Sports v EUIPO, C‑480/15 P, not published, EU:C:2016:266, paragraph 36).
In addition, although EUIPO must take into account decisions already taken and consider with especial care whether it should decide in the same way or not, compliance with the principle of legality requires that the examination of any trade mark application be stringent and full and be undertaken in each individual case, since the registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case (see, to that effect, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 77).
It must be borne in mind that, according to settled case-law, the finding, by the General Court, as to whether facts on which the Board of Appeal of EUIPO based its decision are well known or not is a factual assessment which, save where the facts or evidence are distorted, is not subject to review by the Court of Justice on appeal (judgment of 22 June 2006, Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 53; orders of 3 June 2009, Zipcar v OHIM, C‑394/08 P, not published, EU:C:2009:334, paragraph 42, and of 3 June 2015, The Sunrider Corporation v OHIM, C‑142/14 P, not published, EU:C:2015:371, paragraph 65).
It is clear from equally settled case-law that such a 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 (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 53 and the case-law cited).
In addition, given the exceptional nature of a ground alleging distortion of the facts and evidence, Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) 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 (judgment of 22 September 2016, Pensa Pharma v EUIPO, C‑442/15 P, not published, EU:C:2016:720, paragraph 21 and the case-law cited).
As a preliminary matter, it must be borne in mind that, according to settled case-law, the reasoning of the General Court in a judgment 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 (see, inter alia, judgment of 6 September 2018, Bundesverband Souvenir — Geschenke — Ehrenpreise v EUIPO, C‑488/16 P, EU:C:2018:673, paragraph 63 and the case-law cited).
The duty incumbent upon the General Court to state reasons for its judgments does not, however, require it to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. Its reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons why that court has not upheld their arguments and that it provides the Court of Justice with sufficient material for it to exercise its powers of review (see, inter alia, judgment of 19 March 2015, MEGA Brands International v OHIM, C‑182/14 P, EU:C:2015:187, paragraph 54).