Order of 8 Jun 2016, C-41/16 (Liu v OHIM), ECLI:EU:C:2016:413.

ORDER OF THE COURT (Eighth Chamber)

8 June 2016 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court — Regulation (EC) No 6/2002 — Community designs — Article 7(2) — Registered Community design representing a case for a portable computer — Disclosure of earlier designs prior to the priority date — Application for a declaration of invalidity)

In Case C-41/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 25 January 2016,

Min Liu, residing in Guangzhou (China), represented by Y. Zhang, Rechtsanwalt,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Eighth Chamber),

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

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By its appeal, Mr Min Liu seeks the annulment of the judgment of the General Court of the European Union of 18 November 2015 in Liu v OHIM — DSN Marketing (Case for a portable computer) (T-813/14, not published, ‘the judgment under appeal’, EU:T:2015:868), by which the General Court dismissed its action seeking the annulment of the decision of the Third Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 October 2014 (Case R 1864/2013-3), relating to proceedings for a declaration of invalidity between DSN Marketing Ltd and Mr Liu.

2        Mr Liu also asks the Court to annul that decision of 7 October 2014 and to dismiss the application for a declaration of invalidity made by DSN Marketing before the Third Board of Appeal of EUIPO.

3        In support of his appeal, Mr Liu raises two grounds, alleging, respectively:

–        infringement of Article 7(2) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1),

–        the erroneous assessment of certain items of evidence.

 The appeal

4        Under Article 181 of its Rules of Procedure, 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        The Advocate General took the following position on 21 April 2016:

‘1.      I propose that the Court dismiss the appeal lodged by Mr Liu seeking the annulment of the judgment under appeal. From my point of view, the appeal brought by Mr Liu is in part manifestly inadmissible and in part manifestly unfounded for the following reasons:

 The first ground of appeal: infringement of Article 7(2) of Regulation No 6/2002

2.      By his first ground of appeal, Mr Liu submits that the Court made an error of law in the interpretation of Article 7(2) of Regulation No 6/2002. The first ground of appeal is essentially divided into two parts.

3.      By the second part of the first ground of appeal, the appellant submits that the General Court made an error in holding that it was not established that he was the creator of the design at issue.

4.      The second part of the first ground of appeal is manifestly inadmissible. The appellant simply calls into question the findings of fact made by the General Court, in particular its assessment of the evidence relating to the identity of the creator of the design at issue, but he does not claim that a distortion of that evidence was committed. However, the appraisal of the facts and evidence does not constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice in an appeal (judgment of 20 October 2011 in PepsiCo v Grupo Promer Mon Graphic, C-281/10 P, EU:C:2011:679, paragraph 45).

5.      By the first part of the first ground of appeal, Mr Liu submits that the General Court did not take account of his arguments relating to the findings of the Board of Appeal concerning Article 7(2) of Regulation No 6/2002. The appellant submits that the General Court merely examined the issue of the identity of the creator of the design at issue.

6.      The first part of the first ground of appeal is clearly unfounded. Article 7(2) of Regulation No 6/2002 provides that, for the purposes of Articles 5 and 6 of the regulation, a disclosure is not to be taken into consideration for the purpose of applying Articles 5 and 6 if a design for which protection is claimed under a registered Community design has been made available to the public “by the designer, his successor in title, or a third person as a result of information provided or action taken by the designer or his successor in title”. Since it was not established that Mr Liu was the creator of the design at issue, the General Court did not err in holding, in paragraph 30 of the judgment under appeal, that Mr Liu was not justified in relying on the provisions of Article 7(2) of that regulation.

7.      The first ground of appeal must consequently be rejected since it is in part manifestly unfounded and in part manifestly inadmissible.

 The second ground of appeal: erroneous assessment of certain items of evidence

8.      By the second ground of appeal, the appellant essentially submits that the General Court did not take into account some of his arguments relating to the unequal treatment of the evidence before the Board of Appeal. That ground of appeal is essentially based on two arguments.

9.      First, the appellant disputes the probative value of some declarations signed by specific clients and submitted by DSN Marketing and that of a purchase invoice from Targus, asserting that there are errors in those documents. The appellant argues that the General Court did not consider that argument.

10.      Secondly, the appellant disputes the General Court’s finding that it waited “until 13 February 2011 to commission a designer to design the packaging of that design, although the first sales had already taken place”. He seeks to correct the wording of his application before the General Court by stating that it was not “packaging” but “particulars to be printed on iPad cases”.

11.      The second ground of appeal is manifestly inadmissible. The arguments relied on by the appellant in support of his second ground of appeal merely concern the assessment of the facts and evidence. The appellant does not state that the facts and evidence submitted to the General Court were distorted. As has already been stated in relation to the first ground of appeal, the assessment of those facts and evidence does not constitute, save where the clear sense of the facts and evidence has been distorted, a question of law which is subject to review by the Court in the context of an appeal (see, inter alia, judgment of 12 July 2012 in Smart Technologies v OHIM, C-311/11 P, EU:C:2012:460, paragraph 57 and the case-law cited).

12.      It follows that the second ground of appeal is clearly inadmissible.’

6        It is necessary to dismiss the appeal on the same grounds as those stated by the Advocate General.

 Costs

7        Under Article 137 of the Court’s 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 was adopted before the appeal was served on the respondent and therefore before the latter could have incurred costs, Mr Liu should bear his own costs.

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

1.      The appeal is dismissed.

2.      Mr Min Liu is ordered to bear his own costs.

[Signatures]

* Language of the procedure: English.