CJEU Order C-131/06 Castellblanch 24 Apr 2007

ORDER OF THE COURT OF JUSTICE (Sixth Chamber)

24 April 2007(*)

(Appeal – Figurative mark CRISTAL CASTELLBLANCH – Refusal of registration)

In Case C-131/06 P,

APPEAL under Article 56 of the Statute of the Court of Justice, brought on 23 February 2006,

Castellblanch SA, established in Sant Sadurní d’Anoia (Spain), represented by F. de Visscher, E. Cornu, E. De Gryse and D. Moreau, avocats,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by I. de Medrano Caballero, acting as Agent,

defendant at first instance,

Champagne Louis Roederer SA, established in Reims (France), represented by P. Cousin, avocat,

intervener at first instance,

THE COURT OF JUSTICE (Sixth Chamber),

composed of P. K?ris, President of the Sixth Chamber, J.-C. Bonichot (Rapporteur) and C. Toader, Judges,

Registrar: R. Grass,

Advocate General: P. Mengozzi,

after hearing the Advocate General,

makes the following

Order

1 By its appeal Castellblanch SA (‘Castellblanch’) seeks the annulment of the judgment of the Court of First Instance of the European Communities of 8 December 2005 in Case T-29/04 Castellblanch v OHIM – Champagne Roederer(CRISTALCASTELLBLANCH) [2005] ECR II-5309 (‘the judgment under appeal’), in which the Court of First Instance dismissed the action brought by Castellblanch against the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 November 2003 (Case R 0037/2002-2, ‘the ‘contested decision’), relating to the opposition of the proprietor of the word sign ‘CRISTAL’ to registration of the mark CRISTAL CASTELLBLANCH as a Community trade mark.

Legal context

2 Article 8(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) provides that:

‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b) if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.’

3 Under Article 57(1) of Regulation No 40/94 decisions of the Opposition Divisions are subject to appeal. Article 63(1), (2) and (3) of that regulation provides that:

‘1. Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

2. The action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of this Regulation or of any rule of law relating to their application, or misuse of power.

3. The Court of Justice has jurisdiction to annul or to alter the contested decision.’

Background to the dispute

4 The background to the dispute was described in paragraphs 1 to 11 of the judgment under appeal:

‘1 On 1 April 1996, [Castellblanch] filed an application for a Community trade mark with [OHIM] pursuant to … Regulation (EC) No 40/94 … as amended.

2 The mark in respect of which registration was sought is the following figurative sign (“the mark CRISTAL CASTELLBLANCH”):

3 The goods in respect of which registration was sought fall within Class 33 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: “wines and sparkling wines”.

4 On 24 November 1997, the application was published in Community Trade Marks Bulletin No 29/1997.

5 On 23 February 1998, Champagne Louis Roederer SA [“Champagne Louis Roederer”] filed a notice of opposition pursuant to Article 42 of Regulation No 40/94 to registration of that Community trade mark. The opposition was based on the following registrations of the word sign CRISTAL:

– French trade mark registration No 1 114 613 of 27 November 1979, renewed on 13 November 1989 (No 1 559 904) and on 20 December 1991 (No 1 713 576) for “wines originating from France, namely champagne, sparkling wines and alcoholic beverages (except beers)”, belonging to Class 33;

– international trade mark registration No 451 185, requested on 29 January 1980, applicable in Austria, the Benelux countries, Italy and Portugal for “wines originating from France, namely champagne and sparkling wines”, belonging to Class 33;

– German trade mark registration No DD 647 501 of 18 April 1991 for “alcoholic beverages (except beers)”, belonging to Class 33;

– United Kingdom trade mark registration No 1 368 211 applied for on 22 December 1988 for “wines from Champagne”, belonging to Class 33;

– Irish trade mark registration No 150 404 of 30 October 1992 for “alcoholic beverages (except beers)”, belonging to Class 33;

– Danish trade mark registration VR 06. 021 1995 of 15 September 1995 for “champagne, sparkling wines, wine and Cognac”, belonging to Class 33.

6 The opposition was also based on well-known trade marks in Belgium, France, Great Britain and Germany for “wines from Champagne”.

7 The opposition concerned all of the goods covered by the earlier registrations for the sign CRISTAL and was directed against all of the goods covered by the trade mark applied for. The reasons given in support of that opposition were those laid down in Article 8(1)(a) and (b) of Regulation No 40/94

8 By decision of 26 October 1999, the Opposition Division upheld the opposition. It based its decision solely on the earlier French mark (“the earlier mark”). It held, firstly, that the evidence submitted by the intervener was sufficient to prove genuine use of the earlier mark, and secondly that, given the identity of the goods at issue and the similarity of the conflicting signs, as well as the highly distinctive character of the earlier mark on the French market, there was a likelihood of confusion on the part of the relevant public, namely the French consumer.

9 On 22 December 1999, the applicant filed a notice of appeal with OHIM, under Articles 57 to 62 of Regulation No 40/94, against the Opposition Division’s decision.

10 During the procedure before the Board of Appeal the applicant limited its trade mark application to the following products, belonging to Class 33: “Spanish sparkling wines of the cava variety”.

11 By decision of 17 November 2003 (“the contested decision”), the Board of Appeal dismissed the appeal. It found that the earlier mark had been used both genuinely and effectively and it concluded that there was similarity between the goods in question, along with similarity between the opposing signs which could have resulted in likelihood of confusion including likelihood of association on the part of the French public.’

The procedure before the Court of First Instance and the judgment under appeal

5 By application filed at the Registry of the Court of First Instance on 26 January 2004, Castellblanch sought the annulment of the contested decision. By the judgment under appeal, the Court of First Instance dismissed the action.

6 The Court of First Instance first rejected the claim made by the present appellant to the effect that it should declare inadmissible documents which were produced for the first time before it. The Court of First Instance found that some of these documents had been produced before OHIM and decided that it could, in this particular case, take account of the documents which were produced for the first time before it.

7 The Court of First Instance then rejected the two pleas in law submitted by the present appellant. On the first, which alleged infringement of Article 15(2)(a) and of Article 43(2) and (3) of Regulation No 40/94, and of Rule 22(2) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1), the Court of First Instance ruled, at paragraph 34 of the judgment under appeal, that the circumstances of the case corresponded to the situation in which several signs are used simultaneously without altering the distinctive character of the registered sign. After pointing out, at paragraph 37 of the judgment under appeal, that in the wine sector the consumer is often particularly interested in the geographical origin of the product and in the identity of the producer, the Court of First Instance held, at paragraph 58 of its judgment, that use of the word mark CRISTAL in conjunction with other indications was immaterial, and that the Second Board of Appeal had accordingly not infringed the provisions relied on by the present appellant.

8 On the second plea in law, which alleged an infringement of Article 8(1)(b) of Regulation No 40/94, the Court of First Instance first held, at paragraphs 48 and 49 of the judgment under appeal, that use of the earlier mark was considered to be shown, in the decision of the Opposition Division and in the contested decision, for all the goods covered by the earlier mark, that is to say, not only for champagne. The Court of First Instance concluded that it was appropriate to compare the ‘Spanish sparkling wines of the cava variety’, covered by the mark applied for, with ‘wines originating from France, namely champagne, sparkling wines and alcoholic beverages (except beers)’, covered by the earlier mark.

9 Secondly, the Court of First Instance pointed out, at paragraph 52 of the judgment under appeal, that ‘wines originating from France, namely champagne, sparkling wines and alcoholic beverages (except beers)’ and ‘Spanish sparkling wines of the cava variety’ are such as to be in competition with each other. The Court of First Instance added that, although the goods claimed by the present appellant are limited to those originating in Spain, that was insufficient to exclude similarity of the goods in the context of the assessment of the likelihood of confusion, since such a likelihood may exist even when the public perception is that the goods in question are produced in different places. The Court of First Instance concluded, at paragraph 54 of the judgment under appeal, that the goods at issue were identical or at the very least highly similar.

10 Thirdly, with regard to the comparison of the signs, the Court of First Instance rejected the argument of the present appellant that this comparison had to be carried out while taking account of the earlier mark as it was used and not as it had been registered. The Court of First Instance held, at paragraph 57 of the judgment under appeal, that the comparison had to be made between the signs as they were registered or as they appeared in the application for registration, regardless of whether they were used alone or together with other marks or expressions. In the circumstances of the case, the Court of First Instance, after a visual, aural and conceptual comparison of the signs, concluded, at paragraph 62 of the judgment under appeal, that there were significant points of resemblance between the conflicting marks.

11 Fourthly, as regards the likelihood of confusion, the judgment under appeal rejects the present appellant’s argument that the earlier mark was only weakly distinctive because, according to the present appellant, the word ‘cristal’ describes and evokes the goods at issue, because the mark had not acquired distinctiveness as a result of use and because there were several other marks on the market containing the word ‘cristal’ which were registered for goods coming within Class 33. After deciding, at paragraph 70 of the judgment under appeal, that the word ‘cristal’, in any event, was in no way descriptive of the goods but might be considered to be evocative, and that it was appropriate to declare that the mark CRISTAL had average, but not weak, distinctive character, the Court of First Instance rejected the second plea in law and dismissed the action.

Forms of order sought before the Court of Justice

12 The appellant claims that Court of Justice should:

– annul the judgment under appeal;

– give final judgment in the case;

– annul the contested decision, and

– order OHIM to pay the costs both of proceedings at first instance and on appeal.

13 OHIM contends that the Court of Justice:

– dismiss the appeal;

– order the appellant to pay the costs.

14 Champagne Louis Roederer contends that the Court of Justice should:

– dismiss the appeal, and

– order the appellant to pay the costs.

The appeal

15 Under Article 119 of the Rules of Procedure, where the appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court of Justice may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order.

The first ground of appeal

Arguments of the parties

16 OHIM contends first that most of the grounds of appeal put forward by the appellant take issue with the factual assessment which the Court of First Instance has undertaken, a matter in which it has exclusive jurisdiction and which the Court of Justice cannot review in the context of an appeal.

17 The appellant maintains that the Court of First Instance infringed Article 63(2) and (3) of Regulation No 40/94 and Article 135(4) of its Rules of Procedure in treating as admissible the new documents presented for the first time before it by Champagne Louis Roederer. First, according to the appellant, the legality of a Community measure must be assessed on the basis of the elements of fact and law existing at the time when the measure was adopted. Second, the Rules of Procedure of the Court of First Instance preclude the admissibility of elements of fact presented for the first time before it. Annexes 23 and 24 to the documents produced by the intervener were, it claims, photocopies of decisions of national courts which related to the parties to the proceedings and were not, contrary to what is stated by the Court of First Instance at paragraph 16 of the judgment under appeal, national case-law. Those documents therefore constituted matters of fact which were presented for the first time before the Court of First Instance. That factual material influenced the decision of the Court of First Instance as to the likelihood of confusion in the present case. The same holds true of Annex 25 to the documents produced by the intervener, which consisted of an extract from a French-Spanish dictionary.

18 OHIM contends that the decisions of national courts produced by the intervener were of no relevance in the analysis of the case, and that the production of the extract from a French-Spanish dictionary added nothing new to the case. Moreover, the documents in question did not alter the subject-matter of the proceedings before the Second Board of Appeal, with the result that the first ground of appeal should in any event be rejected.

19 Champagne Louis Roederer contends in response that the ground of appeal alleging an infringement of Article 63(2) and (3) of Regulation No 40/94 is of no relevance to the procedure followed before the Court of First Instance. In any event, the production before the Court of First Instance by the intervener of Annexes 23, 24 and 25 cannot have changed the subject-matter of the proceedings within the meaning of the provisions relied on by the appellant in its appeal, and in particular within the meaning of Article 135(4) of the Rules of Procedure of the Court of First Instance. Documents 23 and 24 were court decisions and not pieces of evidence. In no way did they determine the finding stated by the Court of First Instance at paragraph 74 of the judgment under appeal. As regards Annex 25, the production of a page of a dictionary added nothing to the debate, but merely provided evidence of a fact already established by the decision of the Second Board of Appeal of OHIM, namely the equivalence of the Spanish word ‘cava’ and the French word ‘champagne’.

– Findings of the Court

20 Article 63 of Regulation No 40/94 provides that the actions brought against decisions of Boards of Appeal can be based on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty, of Regulation No 40/94 or of any rule of law relating to their application, or misuse of power.

21 It follows that the Court of First Instance could not assess the legality of the decision of the Board of Appeal by taking into consideration matters of fact newly produced before it (Case C-29/05 P OHIM v Kaul [2007] ECR I-0000, paragraph 54). In the present case, however, suffice it to note that it is obvious from the grounds of the judgment under appeal that the reasoning of the Court of First Instance was not affected by the documents the admissibility of which before it was contested. Even assuming that, as the appellant maintains, the assessment made by the Court of First Instance in the last sentence of paragraph 74 of the judgment under appeal is in part based on the documents at issue, this assessment is to be found in a ground of the judgment which is superfluous.

22 Accordingly, the first ground of appeal must be rejected as clearly unfounded.

The second ground of appeal

Arguments of the parties

23 The appellant maintains that the Court of First Instance erred in taking the view that the earlier mark was used for all alcoholic beverages, except beer, and not only for champagne. This error affected the reasoning of the Court of First Instance as to the similarity of the goods and as to the likelihood of confusion as between the marks. Since proof of use of the earlier mark had been provided only in relation to ‘champagne’, the Court of First Instance ought to have limited its comparison of the goods to French ‘champagne’, on the one hand, and Spanish ‘cava’, on the other. The Court of First Instance ought to have arrived at the conclusion that the goods at issue are different.

24 The appellant also maintains that, in ruling at paragraph 48 of the judgment under appeal that ‘in both the Opposition Division’s decision and the contested decision, use of the earlier mark was considered to be shown for all the products covered by the earlier mark, that is to say not only for champagne’, the Court of First Instance failed to address the argument which the appellant had presented at paragraph 56 of its application.

25 Moreover, in doing so, the Court of First Instance infringed Article 74(1) of Regulation No 40/94, which stipulates that the Court cannot deviate from facts which have been agreed by the parties, in this case, that the opposing trade mark was used exclusively for champagne.

26 OHIM’s response to the second ground of appeal is that the analysis undertaken by the Court of First Instance in relation to the evidence of use is in the realm of appraisal of facts and not of their legal classification, and therefore cannot be validly brought before the Court of Justice on appeal. Further, and alternatively, OHIM submits that the appellant’s method for assessing the evidence of use is not correct and that its arguments on the use of the earlier mark are unfounded. In fact, once it had supplied evidence of use of its earlier mark for champagne, a sparkling wine with a specific geographical origin, the intervener had demonstrated use of its earlier mark for the goods required for the comparison with the goods in the application for the Community trade mark, namely Spanish sparkling wine of the cava variety coming within Class 33.

27 OHIM also contends that the Court of First Instance did not infringe Article 74(1) of Regulation No 40/94. While the Court of First Instance is bound by the factual framework and legal grounds established by the parties, that Court is in no way bound by the factual assessments made by the parties when it is reviewing the legality of the decision of the Board of Appeal (see, to this effect, Case C-106/03 P Vedial v OHIM [2004] ECR I-9573, paragraph 37).

28 The contention of Champagne Louis Roederer as to whether the Court of First Instance failed to address a plea in law raised before it is that the appellant did not in any way criticise the decision reached by the Opposition Division and the Second Board of Appeal of OHIM on the evidence relating to the use of the intervener’s earlier mark in the light of the products specified in the application for registration of the trade mark, but only criticised the assessment which was made of the ‘nature’ of this use. Further, in so far as the appeal targets paragraph 48 of the judgment under appeal, it does not criticise the judgment of the Court of First Instance but rather the findings on the facts of the case made by the Opposition Division and the Second Board of Appeal of OHIM.

29 Champagne Louis Roederer also disputes the assertion that it admitted that use of the mark on which the opposition was based was limited exclusively to sparkling wines of French origin consisting of champagne wines. Paragraph 61 of the intervener’s pleadings before the Court of First Instance did not in any way concern the scope or the nature of use of the mark on which the opposition was based, but merely recalled the wording of that mark.

– Findings of the Court

30 The appellant’s second ground of appeal has three parts.

31 The first part consists of the submission that the Court of First Instance, at paragraph 48 of the judgment under appeal, erred in finding that in both the Opposition Division’s decision and the contested decision use of the earlier mark was considered to have been shown for all the products covered by the earlier mark. However, the Court of First Instance undertook on that point a factual assessment which the appellant’s arguments seek to challenge.

32 Consequently, that issue is outside the scope of the review that can be undertaken by the Court of Justice in the context of an appeal, which, in accordance with Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, is limited to points of law, except in the event of distortion of the facts of the case.

33 Since no distortion is claimed, the first part of the second ground of appeal is therefore manifestly inadmissible.

34 The second part of that ground of appeal is to the effect that the Court of First Instance, by declaring that use of the earlier mark had been shown, in the decisions of OHIM, for all of the goods covered by the earlier mark, failed to address a plea in law which had been raised before it.

35 On that point, without it being necessary to decide whether the Court of First Instance provided sufficient reasons for its response to the plea in law raised by the appellant, a plea which in brief alleged an incorrect assessment of the evidence of use of the earlier mark, it is in any event sufficient to find that the Court of First Instance, at paragraph 53 of the judgment under appeal, hypothetically supposed that champagne alone was to be taken into account for the earlier mark, in order to examine the consequences which this would have for the assessment of the similarity of the goods covered by the conflicting marks.

36 The second part of the ground of appeal is consequently manifestly unfounded.

37 According to the third part of that ground of appeal, the parties had recognised it to be an agreed fact that the mark of the opponent was exclusively used for champagne, and the Court of First Instance could not subsequently deviate from that fact.

38 On this point it is sufficient to record that it is clear from a reading of the pleadings lodged by Champagne Louis Roederer before the Court of First Instance, in particular paragraph 58, that the intervener did not acknowledge that the use of the mark upon which opposition was based was limited exclusively to champagne wines.

39 The third part of the ground of appeal has thus no factual basis and is therefore manifestly unfounded.

40 It follows from the foregoing that the second ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded.

The third ground of appeal

Arguments of the parties

41 The appellant maintains that the judgment under appeal infringes Article 36 of the Statute of the Court of Justice and Article 81 of the Rules of Procedure of the Court of First Instance in that its reasons are vitiated, in the application of Article 8(1)(b) of Regulation No 40/94, by a contradiction which led the Court of First Instance wrongly to decide that the goods at issue in the present case were similar. The Court of First Instance could not, without contradicting itself, maintain initially, at paragraph 37 of the judgment under appeal, that consumers of wine are often particularly interested in the geographical origin of the product and the identity of the producer, and yet conclude, at paragraphs 52 and 53 of the judgment under appeal, that the goods were similar.

42 On the ground of appeal alleging an infringement of Article 8(1)(b) of Regulation No 40/94, OHIM contends that the argument alleging that the judgment under appeal is vitiated by a contradiction is in reality an invitation to the Court of Justice to substitute its own assessment for that of the Court of First Instance. Further, the purpose of analysis of the similarity of the goods covered by the conflicting marks is to determine whether, as far as the goods at issue are concerned, the relevant public might believe that, if they were marketed under identical marks, those goods had their origin in the same company or in companies which were commercially linked. Having regard to the criteria established by the Court of Justice, OHIM continues, the goods cannot be considered to be different because of their different geographical origin.

43 As to whether the judgment under appeal is vitiated by contradiction, Champagne Louis Roederer observes that it was in response to the first plea advanced by Castellblanch, which related to its challenge as to the use of the intervener’s earlier mark, that the Court of First Instance made the comment which is to be found in paragraph 37. In its appeal to the Court of Justice, however, Castellblanch has specifically abandoned that plea in law, which constituted its first plea before the Court of First Instance. Moreover, the Court of First Instance did not disregard the Spanish origin asserted for the goods which Castellblanch’s trade mark application was designed to protect but none the less concluded that there was a likelihood of confusion. The Court of First Instance considered that such origin was only one relevant element among others and did not exclude all likelihood of confusion. Accordingly, the judgment is not vitiated by any contradictory reasoning.

– Findings of the Court

44 The grounds of the judgment under appeal which, according to the appellant, are so vitiated by contradictory reasoning that it is tantamount to an error of law or defective statement of grounds, relate to two separate pleas in law. First of all, the statement by the Court of First Instance, at paragraph 37 of the judgment under appeal, that consumers of wine often have a particular interest in the geographical origin of the product is made in the context of examining whether the distinctive character of the mark was altered by the addition of geographical information.

45 Secondly, it is in the context of the comparison of the goods that the Court of First Instance, at paragraphs 52 and 53 of the judgment under appeal, held that the fact that the goods covered by the application are limited to those of Spanish origin does not exclude the similarity of the goods in the context of the assessment of the likelihood of confusion, and the Court of First Instance referred to the case-law of the Court of Justice to the effect that such a likelihood may exist even when, for the public, the goods at issue are produced in different places (see Case C-39/97 Canon [1998] ECR I-5507, paragraphs 29 and 30).

46 Contrary to what is submitted, those two successive statements are not contradictory. Even in relation to goods of which the geographic origin is not neutral, it is impossible to exclude all likelihood of confusion on the sole ground that the beverages at issue are produced in different places. In that regard, the Court of First Instance correctly referred to the case-law of the Court of Justice on that matter (Canon, paragraphs 29 and 30) and concluded, at paragraph 52 of the judgment under appeal, that the goods covered by the earlier mark are not limited to wines of French origin but consist of sparkling wines in general, which can be produced in, among other places, Spain.

47 The judgment under appeal is accordingly not vitiated by any contradictory reasoning which is tantamount to an error in law or a defective statement of grounds. The ground of appeal must be rejected as manifestly unfounded.

The fourth ground of appeal

Arguments of the parties

48 The appellant maintains that the judgment under appeal infringes Article 8(1)(b) and Article 43(3) of Regulation No 40/94 to the extent that, when comparing the conflicting marks, first, the Court of First Instance did not take into consideration the nature of the use of the earlier trade mark in order to assess its distinctive character, and secondly, attached greater importance to the evocative element ‘CRISTAL’ in the trade mark applied for than to the sign ‘CASTELLBLANCH’, to which the Court of First Instance did not attribute any meaning whatever.

49 As regards the first part of the ground of appeal, the appellant argues that the Court of First Instance could not, without erring in law, refrain from taking account of the manner in which the earlier mark had been used and thus of its real distinctive character. While the mark in respect of which registration is applied for must be examined as it appears in the application for registration, it is however appropriate, when considering the earlier mark, to take into account the manner in which the earlier sign has been used. The reasoning applied in opposition proceedings must be the same as that applied in infringement proceedings. In the present case, the earlier mark CRISTAL has systematically been used in combination with other non-evocative and more distinctive elements, such as the word sign ‘Champagne Louis Roederer’ and the letters ‘LR’ in a specific design. Consequently, the earlier sign ‘CRISTAL’ could not be considered as having a strong distinctive character. The Court of First Instance, by not taking due account of the use of the earlier mark and its impact on the mark’s distinctive character in order to judge the distinctiveness of the intervener’s mark for the purposes of the comparison of the conflicting signs, has made an incorrect comparison of the signs.

50 In relation to the second part of the ground of appeal, the appellant argues that the Court of First Instance should have given more weight to the distinctive component of the sign applied for than to its evocative component. The global assessment of the likelihood of confusion of the marks at issue must be based on the overall impression created by them, bearing in mind in particular their distinctive and dominant components (Case C-251/95 SABEL [1997] ECR I-6191, paragraph 23, and Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 25). In making a comparison of the signs, it is the sign which does not have for the particular public any particular meaning that is the dominant element, rather than the descriptive or evocative element. In the present case, the Court of First Instance should have taken account of the limited distinctiveness of the evocative sign ‘CRISTAL’, and therefore considered that the sign ‘CASTELLBLANCH’, which is meaningless, has a greater distinctiveness than the sign ‘CRISTAL’. Contrary to what was decided by the Court of First Instance, it is therefore the sign ‘CASTELLBLANCH’ which should be considered as the dominant element of the mark applied for, and not the word ‘CRISTAL’, which does not have strong distinctiveness.

51 As regards the first part of the ground of appeal, OHIM contends that paragraph 57 of the judgment under appeal is not vitiated by any error in law. Article 8(1) of Regulation No 40/94 protects the sign in the form in which it is registered and not in the form in which it is used. Consequently, the sign in its registered form is protected against identical or similar marks. There are no provisions of Regulation No 40/94 and no case-law of the Court of Justice which serve to support the position of the appellant. By contrast, Article 15(2)(a) of Regulation No 40/94 stipulates that use of the registered mark is also to be constituted by use of the mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered. The Court of First Instance was therefore fully entitled to compare the mark in the form in which it was registered with the mark registration of which had been applied for.

52 With regard to the overall assessment of the likelihood of confusion, OHIM contends that the ground of appeal to the effect that the Court of First Instance should have taken into account the limited distinctiveness of the evocative sign ‘CRISTAL’ and should have considered that the sign ‘CASTELLBLANCH’ had greater distinctiveness than the sign ‘CRISTAL’ relates to the factual assessment undertaken by the Court of First Instance. In addition, and alternatively, the Court of First Instance correctly analysed the different elements of the two marks and the overall impression created by them before giving its decision on whether there was a likelihood of confusion on the part of the relevant public, namely the average French consumer.

53 On the first part of the final ground of appeal, Champagne Louis Roederer contends that Article 43 of Regulation No 40/94 does not in any way relate to the assessment of the distinctiveness of the mark. The Court of First Instance rightly referred to Article 8(1) of that regulation, which relates to the relative grounds for refusal within opposition proceedings and which, with respect to the trade mark on which opposition is based, define it as ‘the earlier mark’, namely the trade mark in the form in which the rights have been acquired as a result of an earlier registration.

54 On the second part of that final ground of appeal, Champagne Louis Roederer contends that the Court of First Instance, at paragraph 70 of the judgment under appeal, held that the term ‘CRISTAL’ had an average distinctive character and not a weak distinctive character, as claimed by the appellant. The judgments mentioned by the appellant at paragraph 44, footnote 7, of its appeal, which state as a general rule that the relevant public will not consider a descriptive element which is part of a complex mark as the distinctive and dominant element in the overall impression created by the mark are thus entirely irrelevant, since the term ‘CRISTAL’ is not descriptive, as held by the Court of First Instance. The Court of First Instance was fully entitled in the present case to rule that, in addition to the visual and phonetic similarities existing between the conflicting marks, there was also a conceptual similarity in terms of the non-descriptive evocation, even distinctive evocation, of purity and transparency. The judgment is consistent with that in Case C-120/04 Medion [2005] ECR I-8551 in which it was held that ‘where the goods or services are identical [there may be a likelihood of confusion on the part of the public] where the contested sign is composed by juxtaposing the company name of another party’ – in this case, CASTELLBLANCH – ‘and a registered mark which has normal distinctiveness’ – in this case, CRISTAL – ‘and which, although it does not determine by itself the overall impression conveyed by the composite sign, has an independent distinctive role therein’.

– Findings of the Court

55 As regards the first part of the ground of appeal, account must be taken of the case-law of the Court of Justice to the effect that the likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case. That global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components (SABEL, paragraphs 22 and 23).

56 Consequently, and contrary to what is claimed by the appellant, the Court of First Instance was not obliged to take into account the manner in which the earlier sign was used, since this element is not one of the factors which are relevant to the global assessment of the likelihood of confusion.

57 The first part of the ground of appeal is thus manifestly unfounded.

58 As regards the second part of the ground of appeal, it must be held that the Court of First Instance globally assessed the similarity of the marks at issue as well as the likelihood of confusion on the part of the public, by taking into consideration all the factors which were relevant to the case. In addition, the grounds for its conclusions are stated to the requisite legal standard.

59 For the rest, in criticising the Court of First Instance on the ground that it erred in analysing the relevant factors for the purposes of its assessment of the similarity between the goods concerned and between the marks at issue, the appellant seeks to have the Court of Justice substitute its own assessment of the facts for that of the Court of First Instance.

60 As stated at paragraph 32 of this judgment, it follows from Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal is limited to matters of law. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and 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 the Court of Justice on appeal.

61 Since the appellant has not invoked any distortion of the facts or of the evidence submitted to the Court of First Instance, the second part of the fourth ground of appeal must be rejected as being manifestly inadmissible.

62 The fourth and final ground of appeal must accordingly be rejected as being in part manifestly unfounded and in part manifestly inadmissible.

63 In the light of the foregoing, and without it being necessary to rule on OHIM’s submission that all of the grounds of appeal are inadmissible, the appeal must be dismissed.

Costs

64 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since OHIM and Champagne Louis Roederer have applied for costs to be awarded against the appellant and since the appellant has failed in its grounds of appeal, the appellant must be ordered to pay the costs.

On those grounds, the Court (Sixth Chamber) hereby orders:

1. The appeal is dismissed.

2. Castellblanch SA shall pay the costs.

[Signatures]

* Language of the case: English.

Order of 24 Apr 2007, C-131/06 (Castellblanch), ECLI:EU:C:2007:246.