Order of 11 Sep 2018, C-248/18 (Krasnyiy oktyabr v EUIPO), ECLI:EU:C:2018:699.

ORDER OF THE COURT (Eighth Chamber)

11 September 2018 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of a trade mark representing a crayfish)

In Case C-248/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 April 2018,

Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO, established in Moscow (Russia), represented by O. Spuhler, M. Geitz and J. Stock, Rechtsanwälte,

appellant,

the other parties to the proceedings being

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’,

intervener at first instance,

THE COURT (Eighth Chamber),

composed of J. Malenovský (Rapporteur), President of the Chamber, D. Šváby and M. Vilaras, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1        By its appeal, Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO seeks to have set aside the judgment of the General Court of the European Union of 7 February 2018, Krasnyiy oktyabr v EUIPO — Kondyterska korporatsiia ‘Roshen’ (CRABS) (T-795/16, not published, ‘the judgment under appeal’, EU:T:2018:73), by which the General Court dismissed its action seeking the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 August 2016 (Case R 2507/2015-1), relating to opposition proceedings between the appellant and Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’ (‘the contested decision’).

2        The appellant also requests that EUIPO be ordered to pay the costs.

3        In support of its appeal, the appellant relies on two grounds, alleging, respectively, infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21) (‘Regulation No 207/2009’), and infringement of the right to be heard, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.

 The appeal

4        Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

5        That provision must be applied in the present case.

6        On 2 July 2018, the Advocate General took the following position:

‘1.      For the reasons which I shall discuss hereinafter, I propose that the Court should dismiss the appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded and order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court of Justice.

2.      In support of its appeal, the appellant relies on two grounds, alleging, respectively, infringement of Article 8(1)(b) of Regulation No 207/2009 and infringement of the right to be heard, as enshrined in Article 47 of the Charter of Fundamental Rights.

 The first ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009

3.      The first ground of appeal is divided into four parts.

 The first part of the first ground of appeal, alleging an incorrect assessment of the similarity of the signs at issue

4.      In support of the first part of the first ground of appeal, the appellant alleges that the General Court failed to carry out an overall assessment of the signs at issue and adopted too detailed an approach.

5.      On reading the relevant paragraphs of the appeal (paragraphs 30, 31, 33 to 40, 43, 44, 49 to 54 and 57 to 74), it must be held that that complaint seeks, in actual fact, to establish, not a distortion of the facts and evidence, but an incorrect assessment of the latter. It is settled case-law of the Court of Justice that the General Court 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 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 (judgment of 28 February 2018, mobile.de v EUIPO, C-418/16 P, EU:C:2018:128, paragraph 65 and the case-law cited).

6.      This first part must therefore be rejected as being manifestly inadmissible.

 The second part of the first ground of appeal, alleging an incorrect assessment of the distinctiveness of the earlier mark

7.      In support of the second part of the first ground of appeal, the appellant alleges that the General Court ignored the fact that the representation of a red crayfish is highly distinctive.

8.      Again, in paragraphs 78 and 79 of its appeal, the appellant merely sets out facts or evidence, without demonstrating how the General Court allegedly distorted those facts or that evidence.

9.      In accordance with the case-law cited in point 5 of this position, the second part of the first ground of appeal must therefore be rejected as being manifestly inadmissible.

 The third part of the first ground of appeal, alleging an incorrect assessment of the likelihood of confusion

10.      By the third part of the first ground of appeal, the appellant alleges that the General Court erred in law in its global assessment of the likelihood of confusion.

11.      Thus, it submits, it is apparent from the case-law that the fact that the signs at issue are similar to an at least average degree and conceptually similar to a high degree, and that the earlier mark has at least a normal degree of distinctiveness, necessarily leads to the conclusion that there is a likelihood of confusion between the signs at issue. The General Court therefore erred in law in not reaching such a conclusion in the present case.

12.      In that regard, the appellant submits that, since the General Court found that the goods at issue are identical, that the signs at issue are similar to an at least average degree and conceptually similar to a high degree, and that the earlier mark has at least a normal degree of distinctiveness, it should have found that, as a result, there is a likelihood of confusion between the marks at issue.

13.      This third part must be rejected as being manifestly unfounded.

14.      In paragraph 78 of the judgment under appeal, the General Court cited settled case-law according to which the global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the trade marks, and vice versa.

15.      As part of its sovereign assessment of the facts and evidence, the General Court set out in paragraphs 79 to 82 of that judgment the reasons why it found that the differences between the signs at issue, in particular the visual differences, taken in an overall impression on the relevant public, outweigh their similarities. In that regard, it explained, in paragraph 81 of that judgment, that the dominant element of the contested sign, the more distinctive, is the word “crabs”, which had no equivalent in the earlier sign, and it explained that the signs at issue differ significantly in their structure and overall composition and by reason of their colour scheme. Furthermore, the General Court indicated, in paragraph 82 of the judgment under appeal, that the signs at issue are not phonetically similar for one part of the relevant public, with the result that a phonetic comparison of the signs at issue was not possible. Finally, it held that the conceptual similarity of those signs is limited to the depiction of crayfish.

16.      It must be held that the General Court correctly applied the case-law by focusing on the particular case and by weighing up all the relevant evidence for the purposes of the global assessment of the likelihood of confusion between the signs at issue.

17.      Consequently, the third part of the first ground of appeal must be rejected as being manifestly unfounded.

 The fourth part of the first ground of appeal, alleging an incorrect assessment of the indirect likelihood of confusion

18.      By this fourth part, I understand that the appellant alleges that the General Court did not take into account the existence of an indirect likelihood of confusion between the marks at issue, namely that there is a risk that the relevant trade circles would associate those marks as being legally or economically linked.

19.      First, I would point out that the General Court, in my opinion, carried out a correct examination of the likelihood of confusion between the signs at issue.

20.      Second, it should be noted that the Court of Justice has held, in paragraph 18 of the judgment of 11 November 1997, SABEL (C-251/95, EU:C:1997:528), that the concept of “likelihood of association” is not an alternative to that of “likelihood of confusion”, but serves to define its scope. The actual terms of Article 4(1)(b) of First Council Directive 89/104/EEC of 21 December 1988 approximating the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1) therefore exclude its application where there is no likelihood of confusion on the part of the public.

21.      Thus, once the General Court correctly held that there was no likelihood of confusion, the existence of a likelihood of association on the part of the public was a fortiori excluded. Therefore, in paragraph 85 of the judgment under appeal, the General Court acted correctly in rejecting the plea raised by the appellant.

22.      Accordingly, the fourth part of the first ground of appeal must be rejected as being manifestly unfounded.

 The second ground of appeal, alleging infringement of the right to be heard

23.      By the second ground of appeal, I understand that the appellant, in paragraph 15 of its appeal, alleges that the General Court infringed its right to be heard.

24.      It submits that the General Court failed to take into account the evidence submitted by the appellant and that it also contradicted itself in its reasoning.

25.      Thus, on the one hand, the appellant argues that the General Court rejected the evidence submitted by the appellant concerning the EU figurative mark registered on 7 July 2017 under No 15 948 185, which protects the image of a red crayfish for goods in the same class 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, as those for which protection was sought by the intervener at first instance, on the ground that that mark was registered after the contested decision had been adopted and that therefore this is a new fact submitted before it. On the other hand, it submits, the General Court observes that that mark is the subject of cancellation proceedings.

26.      However, far from not having taken into account that evidence and far from having contradicted itself, the General Court, in paragraph 72 of the judgment under appeal, on the contrary correctly applied the settled case-law of the Court of Justice, according to which the General Court is called upon to assess the legality of the decisions of the Boards of Appeal of EUIPO by reviewing their application of EU law, having regard, in particular, to the facts which were submitted to the Boards of Appeal. Therefore, facts not invoked by the parties before the departments of EUIPO cannot be submitted at the stage of the appeal brought before the General Court and the latter cannot re-evaluate the factual circumstances in the light of evidence adduced for the first time before it (judgment of 10 November 2011, LG Electronics v OHIM, C-88/11 P, not published, EU:C:2011:727, paragraphs 24 and 25 and the case-law cited).

27.      Furthermore, the mere mention, in the judgment under appeal, of the fact that trade mark No 15 948 185 is the subject of cancellation proceedings does not, contrary to the appellant’s submission, mean that the General Court took that element into consideration in the review of the validity of the contested decision.

28.      The second ground of appeal must therefore be rejected as being manifestly unfounded.

29.      In the light of all the foregoing considerations, the appeal must be dismissed and the appellant ordered to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure of the Court.’

7        On the same grounds as those found by the Advocate General, the appeal must be dismissed, in its entirety, as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

 Costs

8        Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since the present order has been adopted before the appeal was served on the other parties and, consequently, before those other parties could have incurred costs, the appellant must bear its own costs.

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

1.      The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

2.      Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO shall bear its own costs.

Luxembourg, 11 September 2018.

A. Calot Escobar

J. Malenovský

Registrar      President of the Eighth Chamber

*      Language of the case: English.