Helena Rubinstein SNC and L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2012-05-10
74. However, it is settled case‑law that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced before 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 (Case C‑304/06 P Eurohypo  v OHIM  [2008] ECR I‑3297, paragraph 33 and the case‑law cited).
84. As is clear from Article 256 TFEU and Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only and, accordingly, the General Court alone has jurisdiction to find and appraise the facts, save where the factual inaccuracy of its findings results from the documents in the case before it. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, inter alia, Case C‑121/01 P O’Hannrachain  v Parliament [2003] ECR I‑5539, paragraph 35, and Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission  [2009] ECR I‑2665, paragraph 137).
93. It should be observed that, in order to benefit from the protection introduced by Article 8(5) of Regulation No 40/94, the proprietor of the earlier mark must prove that use of the mark for which registration is sought would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark. The proprietor of the earlier trade mark is not required, for that purpose, to demonstrate actual and present injury to its mark for the purposes of Article 8(5). When it is foreseeable that such injury will ensue from the use which the proprietor of the later mark may be led to make of its mark, the proprietor of the earlier mark cannot be required to wait for this actually to occur in order to be able to prohibit that use. The proprietor of the earlier mark must, however, prove that there is a serious risk that such an injury will occur in the future (see, by analogy, Case C‑252/07 Intel Corporation [2008] ECR I‑8823, paragraphs 37 and 38).
94. In addition, in order to determine whether the use of a sign takes unfair advantage of the distinctive character or the repute of the mark, it is necessary to undertake a global assessment, taking into account all factors relevant to the circumstances of the case (Case C‑487/07 L’Oréal and Others  [2009] ECR I‑5185, paragraph 44).
110. It should first be observed that, by claiming that the General Court infringed Article 73 of Regulation No 40/94 in rejecting their plea concerning failure to state sufficient reasons for the contested decisions, Helena Rubinstein and L’Oréal are disputing the General Court’s interpretati on of European Union law or its application of that law. Accordingly, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not in that way base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, inter alia, Case C‑41/00 P Interporc v Commission [2003] ECR I‑2125, paragraph 17, and Case C‑16/06 P Les Éditions Albert René  v OHIM  [2008] ECR I‑10053, paragraph 110). The fourth ground of appeal is therefore admissible.
111. Secondly, it should be observed that — as the General Court correctly stated in paragraph 92 of the judgment under appeal — the obligation on OHIM, referred to in Article 73 of Regulation No 40/94, to state reasons for its decisions has the dual purpose of enabling interested parties to know the purported justification for the measure taken so as to be able to defend their rights and of enabling the Courts of the European Union to exercise their jurisdiction to review the legality of the decision.
112. Such an obligation may be discharged without it being necessary to respond expressly and exhaustively to all the arguments put forward by an applicant.