Order of 3 Mar 2016, C-440/15 (AgriCapital v OHIM), ECLI:EU:C:2016:144.

ORDER OF THE COURT (Tenth Chamber)

3 March 2016 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court — Application for the Community word mark AGRI.CAPITAL — Opposition proceedings — Earlier Community word marks AgriCapital and AGRICAPITAL — Rejection of the opposition)

In Case C-440/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 August 2015,

AgriCapital Corp., established in New-York (United States), represented by P. Meyer and M. Gramsch, Rechtsanwälte,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant at first instance,

AC Biogas GmbH, formerly agri.capital GmbH, established in Münster (Germany),

intervener at first instance,

THE COURT (Tenth Chamber),

composed of F. Biltgen, President of the Chamber (Rapporteur), A. Borg Barthet and E. Levits, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the decision taken, 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, AgriCapital Corp. asks the Court to set aside the judgment of the General Court of the European Union of 10 June 2015 in AgriCapital v OHIM — agri.capital (AGRI.CAPITAL) (T-514/13, EU:T:2015:372) (‘the judgment under appeal’), by which that Court dismissed its action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 10 July 2013 (Case R 2236/2012-2), relating to opposition proceedings between AgriCapital Corp. and agri.capital GmbH (‘the contested decision’).

 Legal context

 EU law

2        Article 8(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) states:

‘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.’

 Background to the dispute

3        On 4 June 2009, agri.capital GmbH filed with OHIM an application for registration of the word sign ‘AGRI.CAPITAL’ as a Community trade mark.

4        The services in respect of which registration was sought are, after the restriction of the list of services which took place in the course of the proceedings before OHIM, in, inter alia, Class 36 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 (‘the Nice Agreement’), and correspond to the following description:

‘Building promoter services, namely in particular in connection with installations for generating and distributing electrical and thermal energy from renewable energy sources; development of usage concepts (facility management contracting); management of buildings; management of land; real estate management and brokerage, rental and leasing of real estate (facility management); real estate affairs; leasing of farms; the aforesaid services not in connection with publishing and/or published products.’

5        The application for registration of the sign in question as a Community trade mark was published in Community Trade Marks Bulletin No 59/2009 of 14 December 2009.

6        On 12 March 2010, AgriCapital Corp. filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to that registration in respect of the services referred to in paragraph 4 of the present order.

7        That opposition was based on the following earlier Community trade marks:

–        the Community word mark AgriCapital, registered on 24 August 2007 under the number 6192322 in respect of services in Class 36 corresponding to the following description ‘Financing services; financial consultancy’;

–        the Community word mark AGRICAPITAL, registered on 7 July 2006 under the number 4589339 for services in Class 36 corresponding to the following description ‘Consulting and investment banking services for companies in agricultural sector’.

8        The grounds relied on in support of that opposition were those set out in Article 8(1)(b) of Regulation No 207/2009.

9        By decision of 2 October 2012, the Opposition Division of OHIM rejected that opposition on the ground that the services in Class 36 covered by the mark in respect of which registration was sought and those covered by the earlier marks were dissimilar, with the result that there was no likelihood of confusion within the meaning of Article 8(1)(b) of that regulation.

10      On 3 December 2012, AgriCapital Corp. filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against that decision.

11      By the contested decision, the Second Board of Appeal of OHIM dismissed that appeal and ordered AgriCapital Corp. to pay EUR 850 in respect of the costs incurred by agri.capital GmbH before OHIM during the opposition and the appeal.

 The procedure before the General Court and the judgment under appeal

12      By application lodged at the Registry of the General Court on 23 September 2013, AgriCapital Corp. brought an action for annulment of the contested decision, relying on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

13      By the judgment under appeal, the General Court dismissed the action as unfounded.

 The form of order sought by the appellant

14      AgriCapital Corp. claims that the Court should set aside the judgment under appeal and reject the registration of the sign ‘AGRI.CAPITAL’ as a Community trade mark. In the alternative, it claims that the Court should refer the case back to the General Court and order OHIM and the intervener at first instance to bear their own costs and to pay those incurred by AgriCapital Corp.

 The appeal

15      Under Article 181 of its Rules of Procedure, where an 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 it in whole or in part.

16      It is appropriate to apply that provision in the context of the present appeal.

17      AgriCapital Corp. relies on three grounds of appeal in support of its appeal.

 The first ground of appeal

 The arguments of AgriCapital Corp.

18      By its first ground of appeal, AgriCapital Corp. complains that the General Court rejected the document which it had produced for the first time before it during the hearing at first instance.

19      In paragraph 18 of the judgment under appeal, the General Court held that the purpose of actions brought before it was not to review the facts in the light of new documents, but to review the legality of decisions of the Boards of Appeal of OHIM for the purposes of Article 65 of Regulation No 207/2009 and therefore excluded that document.

20      AgriCapital Corp. submits that, in so doing, the General Court overlooked the fact that AgriCapital Corp. was not able to produce that document before the Second Board of Appeal of OHIM because it only obtained it on 21 October 2014, that is to say, after the proceedings before that Board of Appeal.

21      Furthermore, AgriCapital Corp. maintains that that document is not new in the sense that it relates to new facts but that the purpose of that document is, in actual fact, to amplify and explain the arguments that it had already set out before the Board of Appeal.

 Findings of the Court

22      It must be pointed out that, as the General Court rightly stated in paragraph 18 of the judgment under appeal, the purpose of actions brought before it is to review the legality of decisions of the Boards of Appeal of OHIM for the purposes of Article 65 of Regulation No 207/2009.

23      It follows from that provision that facts which were not invoked by the parties before the adjudicating bodies of OHIM cannot be invoked at the stage of the action brought before the General Court. It also follows from that provision that the General Court cannot re-evaluate the factual circumstances in the light of evidence which has been adduced for the first time before it. The legality of a decision of a Board of Appeal of OHIM must be assessed in the light of the information available to it when it adopted that decision (see, to that effect, judgment in Les Éditions Albert René v OHIM, C-16/06 P, EU:C:2008:739, paragraphs 136 to 138, and order in Fundação Calouste Gulbenkian v OHIM, C-414/14 P, EU:C:2015:157, paragraph 38).

24      Consequently, the General Court was right to exclude, in paragraph 18 of the judgment under appeal, the document produced by AgriCapital Corp.

25      The argument that the purpose of that document is to amplify and explain the arguments that AgriCapital Corp. had already submitted before the Second Board of Appeal of OHIM and that it does not therefore constitute a new offer of evidence can also not succeed.

26      As the Court has already held, the case-law according to which a plea that is an amplification of a plea which has previously been set out does not constitute an inadmissible new plea if it is put forward after, as the case may be, the submission of the application or the defence is not capable of being applied to offers of evidence, which relate to specific matters and, unlike legal arguments, do not lend themselves to amplification (see, to that effect, judgment in Gaki-Kakouri v Court of Justice, C-243/04 P, EU:C:2005:238, paragraph 37).

27      Consequently the first ground of appeal must be rejected as manifestly unfounded.

 The second ground of appeal

 The arguments of AgriCapital Corp.

28      In the first place, AgriCapital Corp. complains that the General Court, in paragraph 43 of the judgment under appeal, distorted the clear sense of the content of Annex A.5 to its application at first instance by holding that the documents produced in the course of the administrative proceedings, in particular that annex, did not disprove the finding that real estate services are provided by separate branches and are separate from financial services. It maintains that that annex proves that real estate services and financial services are offered by means of the same distribution channel, namely webpages.

29      In the second place, AgriCapital Corp. submits that the General Court, in paragraphs 56 and 69 of the judgment under appeal, distorted the clear sense of the content of Annex A.4 to its application at first instance by holding that the copies of webpages which AgriCapital Corp. produced during the administrative proceedings concern an investment company specialising in property, a property loans broker and a building society, which lack any link with the services of a building promoter.

30      According to AgriCapital Corp., Annex A.4 clearly shows that there is a link between financial services and the services of a building promoter because, by holding, in paragraph 53 of the judgment under appeal, that building promoter services encompass many activities ranging from the renovation of existing buildings to the purchase of ‘raw’ land and the sale of improved land or parcels to others, the General Court included the development of real estate property in the definition of the activities of a building promoter.

31      AgriCapital Corp. adds that the General Court also erred in refusing to acknowledge that there is a link between financial services and the services of ‘development of usage concepts’, even though Annex A.4 clearly shows that that link exists.

 Findings of the Court

32      It is important to bear in mind, at the outset, that, in accordance with Article 256(1) 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 has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of the facts and the assessment of the 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 (see order in Junited Autoglas Deutschland v OHIM, C-579/14 P, EU:C:2015:374, paragraph 25 and the case-law cited).

33      Furthermore, such a distortion must be obvious from the documents in the case, without there being any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment in Calvin Klein Trademark Trust v OHIM, C-254/09 P, EU:C:2010:488, paragraph 50 and the case-law cited).

34      However, in the present case, it must be pointed out that AgriCapital Corp. has not put forward any arguments which permit the inference that the General Court distorted the evidence which had been submitted to it, in particular Annexes A.4 and A.5 to the application at first instance. Although the arguments of AgriCapital Corp. formally allege such a distortion, they are, in fact, aimed at challenging the General Court’s actual assessment of that evidence, which is not subject to review by the Court of Justice on appeal.

35      In any event, it must be stated, first, that it is not evident from reading the parts of Annex A.5 reproduced by AgriCapital Corp. that the financial services offered by financial institutions and the real estate services are provided by the same branches. Secondly, it cannot be clearly deduced from reading the parts of Annex A.4 reproduced by AgriCapital Corp. that there is a link between financial services and the services of a building promoter and/or the services of ‘development of usage concepts’. Accordingly the General Court’s assessment of Annexes A.4 and A.5 to the application at first instance is not vitiated by any error of law.

36      Consequently, the second ground of appeal must be rejected as manifestly inadmissible or, in any event, manifestly unfounded.

 The third ground of appeal

 The arguments of AgriCapital Corp.

37      In the first place, AgriCapital Corp. submits that the General Court erred in law in holding, in paragraphs 74 to 76 of the judgment under appeal, that there was no likelihood of confusion on the ground that there was no similarity between the goods and services at issue.

38      Furthermore, AgriCapital Corp. maintains that the General Court distorted the clear sense of the evidence before it and did not carry out, in accordance with the case-law of the Court of Justice, a global assessment inasmuch as it did not take into account all the factors which had been presented to it.

39      AgriCapital Corp. also complains that the General Court, for the purposes of assessing the similarity of the goods and services at issue, grouped the services covered by the two earlier marks together as ‘financial services’ without stating any reasons and thus failed to have regard to the differences between the goods and services for which the earlier marks had been registered.

40      In the second place, AgriCapital Corp. submits that the General Court erred in law by holding, in paragraphs 38 and 43 of the judgment under appeal, that the ‘financial services’ covered by the earlier mark were not similar to some of the services in Class 36 in respect of which registration is sought.

41      AgriCapital Corp. maintains that, in so doing, the General Court failed to have regard to its own case-law and, in particular, to the judgment in UniCredit v OHIM (T-303/06 RENV and T-337/06 RENV, EU:T:2014:988, paragraph 118), in which it was acknowledged that there is ‘in the current climate, … a trend in the sector for services provided by institutions such as banks to extend activities to adjacent markets. It is therefore not impossible … that the same international financial institution or undertakings economically linked to such an institution might offer services of a different kind but in adjacent markets, and in particular in the market for real estate services’.

42      AgriCapital Corp. submits that, in that context, the General Court also did not take into account the evidence that it had submitted, which, in the present case, confirms that trend.

43      In the third place, AgriCapital Corp. complains that the General Court did not take Annex A.4 to the initial application into account for the purposes of the comparison of the services in question.

44      In the fourth place, AgriCapital Corp. submits that the General Court erred in law in the interpretation of the explanatory note to Class 36 of the Nice Agreement inasmuch as, in paragraphs 64 and 65 of the judgment under appeal, it held, referring to Rule 2(4) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), that the classification of goods and services is only for administrative purposes and a finding of similarity may not be based solely on that classification.

45      However, according to AgriCapital Corp., even though the Nice Agreement cannot, in itself, establish a similarity between the goods and services in question, the General Court should have recognised that the Nice Agreement, and in particular the explanatory note to Class 36 of that agreement, may be a factor to be taken into account when deciding on the similarity of goods and services.

46      AgriCapital Corp. submits that, in that respect, the General Court did not sufficiently distinguish between the different services covered by the earlier trade marks. It maintains that the General Court did not explain why there is no similarity between ‘consulting and investment banking services for companies in agricultural sector’ and ‘building promoter services’ or between ‘consulting and investment banking services for companies in agricultural sector’ and ‘development of usage concepts’.

 Findings of the Court

47      As regards the argument that the General Court committed an error of interpretation by not taking the explanatory note to Class 36 of the Nice Agreement into consideration, it must be pointed out that, in paragraphs 61 and 62 of the judgment under appeal, the General Court held that there was no link between the financial services covered by the earlier marks and the building promoter services covered by the mark in respect of which registration is sought and stated the reasons for that finding.

48      In paragraph 64 of the judgment under appeal, the General Court held that that finding could not be called into question by the explanatory note to Class 36 of the Nice Agreement.

49      The General Court pointed out that it is apparent from a straightforward reading of that explanatory note that, while the services of ‘property leasing’ and ‘services of realty administrators of buildings, i.e., services of letting or valuation or financing’ fall within Class 36, they are sub-headings separate from that in respect of ‘services relating to financial and monetary affairs’, which includes, inter alia, ‘services of all the banking establishments, or institutions connected with them’, ‘services of credit institutions other than banks’, and ‘services of brokers dealing in shares and property’.

50      The General Court concluded from that, in paragraph 64 of the judgment under appeal, that, contrary to what AgriCapital Corp. maintained, that note is not capable of establishing a close link between the financial services covered by the earlier marks and the building promoter services covered by the mark in respect of which registration is sought.

51      It is therefore apparent from paragraphs 61, 62 and 64 of the judgment under appeal that, in assessing the similarity between the services at issue, the General Court took the explanatory note to Class 36 of the Nice Agreement into consideration.

52      The argument of AgriCapital Corp. claiming that the General Court committed an error of interpretation must therefore be rejected as manifestly unfounded.

53      As to the remainder, it is important to bear in mind that, according to settled case-law, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 169(2) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see order in Langguth Erben v OHIM, C-412/13 P, EU:C:2014:269, paragraph 50 and the case-law cited).

54      In the present case it must be held, both as regards the arguments which AgriCapital Corp. sets out against the assessment of the likelihood of confusion carried out by the General Court in paragraphs 74 to 76 of the judgment under appeal and the arguments criticising the General Court’s assessment of the similarity between the services at issue, in particular in paragraphs 38 and 43 of the judgment under appeal and as regards the argument relating to Annex A.4 to the application initiating proceedings, that AgriCapital Corp., in actual fact, confines itself to making mere statements, without putting forward, in support of those statements, legal arguments to show in what way the General Court erred in law in that regard.

55      Such arguments do not therefore satisfy the requirements of the case-law of the Court referred to in paragraph 53 of the present order and must consequently be rejected as manifestly inadmissible.

56      Consequently, the third ground of appeal must be rejected as being in part manifestly unfounded and in part manifestly inadmissible.

57      Since none of the three grounds of appeal which AgriCapital Corp. has put forward is capable of succeeding, the appeal must therefore be dismissed in its entirety.

 Costs

58      Under Article 137 of the Rules of Procedure of the Court, which is applicable to the procedure on appeal pursuant to Article 184 of those rules, a decision as to costs is to be given in the order which closes the proceedings. In the present case, as this order has been adopted without the appeal having been notified to the defendant, it is appropriate to decide that the appellant must bear its own costs.

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

1.      The appeal is dismissed.

2.      AgriCapital Corp. shall bear its own costs.

[Signatures]

* Language of the case: English.