ORDER OF THE COURT (Seventh Chamber)
19 October 2017 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Application for registration of the word mark Paloma — Earlier figurative mark Paloma — Opposition proceedings — Regulation (EC) No 207/2009 — Article 8(1)(b) — Likelihood of confusion — Principle of interdependence — Similarity of the marks — Absence)
In Case C-224/17 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 April 2017,
Hernández Zamora SA, established in Murcia (Spain), represented by J.L. Rivas Zurdo, abogado,
the other parties to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
Rosen Tantau KG,
intervener at first instance,
THE COURT (Seventh Chamber),
composed of A. Rosas (Rapporteur), President of the Chamber, A. Prechal and E. Jarašiūnas, Judges,
Advocate General: P. Mengozzi,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
1 By its appeal, Hernández Zamora SA seeks to have set aside the judgment of the General Court of the European Union of 17 February 2017, Hernández Zamora v EUIPO — Rosen Tantau (Paloma) (T-369/15, not published, EU:T:2017:106) (‘the judgment under appeal’), by which the General Court dismissed its action seeking the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 April 2015 (Case R 1697/2014-2), concerning opposition proceedings between Hernández Zamora and Rosen Tantau KG.
2 In support of its appeal, Hernández Zamora puts forward two grounds, alleging incorrect interpretation 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).
3 Pursuant to Article 181 of the Rules of Procedure of the Court, 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.
4 That provision must be applied in the present case.
5 On 19 July 2017, the Advocate General took the following position:
‘1. For the reasons developed below, I propose that the Court, in accordance with Article 181 of the Rules of Procedure, dismiss the appeal, consisting of two grounds, brought against the judgment under appeal, as being in part manifestly inadmissible and in part manifestly unfounded. In those circumstances, the appellant should bear its own costs, in accordance with Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules.
2. By its first ground of appeal, the appellant complains that the General Court erroneously held that there was no similarity between the goods designated by the earlier trade mark, namely “Roses and rose plants; propagation material of roses”, and those designated by the trade mark in respect of which registration was sought, namely “Fruits, garden herbs, fresh”. The appellant considers that there is a similarity or, at least, an undeniable link between those goods. In the first place, it notes that, without being decisive, those goods all belong to Class 31 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. In the second place, without disputing that the General Court correctly carried out an examination of the relevant factors allowing the alleged similarity between the goods at issue to be verified, the appellant complains that it erroneously assessed, in paragraph 25 of the judgment under appeal, the nature and intended purpose of those goods, since roses could be edible and, like fruits and vegetables, they are increasingly used for culinary purposes, while it is well known that fruits are all derived from flowers. According to the appellant, there is therefore a similarity, even to a low degree, between the goods at issue, which the General Court should have found.
3. As regards the criticism alleging that the goods at issue belong to the same class of the Nice Agreement, it must be noted that the appellant merely reiterates an argument, put forward at first instance, which was rejected in paragraph 33 of the judgment under appeal, without invoking any error in law allegedly vitiating the General Court’s examination of that argument. I note that it is settled case-law 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, inter alia, judgment of 4 July 2000, Bergaderm and Goupil v Commission, C-352/98 P, EU:C:2000:361, paragraph 34, and the orders of 15 July 2014, Zoo Sport v OHIM, C-676/13 P, not published, EU:C:2014:2080, paragraph 17, and of 13 January 2015, Asos v OHIM, C-320/14 P, not published, EU:C:2015:6, paragraph 25). An application which merely repeats or reproduces verbatim the pleas in law and arguments presented before the General Court seeks, in fact, a mere re-examination of those pleas in law and arguments, which falls outside the jurisdiction of the Court of Justice (see, to that effect, order of 13 January 2015, Asos v OHIM, C-320/14 P, not published, EU:C:2015:6, paragraph 26 and the case-law cited). Such an application must therefore be declared to be manifestly inadmissible.
4. As regards the criticisms raised by the appellant in relation to the General Court’s findings, which confirmed those of the Second Board of Appeal of EUIPO, relating to the nature and intended purpose of “Roses” and “Fruits, garden herbs, fresh”, it should be noted that, in accordance with the case-law of the Court of Justice, the assessment of the similarities between the goods at issue is of a factual nature which is not subject to review by the Court of Justice on appeal, except in the case of a distortion of facts and evidence, which is not alleged in the present case (see, inter alia, judgment of 7 May 2009, Waterford Wedgwood v Assembled Investments (Proprietary), C-398/07 P, not published, EU:C:2009:288, paragraphs 40, 42 and 45, and orders of 4 December 2009, Rath v OHIM and Grandel, C-488/08 P and C-489/08 P, not published, EU:C:2009:754, paragraph 40, and of 17 September 2015, Arnoldo Mondadori Editore v OHIM, C-548/14 P, not published, EU:C:2015:624, paragraph 39).
5. Therefore, I consider that the first ground of appeal invoked by the appellant must be regarded as manifestly inadmissible.
6. By its second ground of appeal, the appellant alleges that the similarity between the goods at issue obliged the General Court to assess the existence of a likelihood of confusion, on the basis of the principle of interdependence. Therefore, a lesser degree of similarity between the goods at issue could be offset by the word identity between the conflicting signs. By refusing to apply that principle in the present case, the General Court erred in law.
7. It is true that, in accordance with the case-law of the Court of Justice, the global assessment of the likelihood of confusion implies some interdependence between the relevant factors, in particular, a similarity between the trade marks and between the goods or services they designate, as the General Court correctly noted in paragraphs 16 and 23 of the judgment under appeal (see, inter alia, judgments of 29 September 1998, Canon, C-39/97, EU:C:1998:442, paragraph 17, and of 18 December 2008, Les Éditions Albert René v OHIM, C-16/06 P, EU:C:2008:739, paragraph 46).
8. However, as the General Court correctly held in paragraph 35 of the judgment under appeal, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see, inter alia, judgment of 18 December 2008, Les Éditions Albert René v OHIM, C-16/06 P, EU:C:2008:739, paragraph 44, and order of 25 November 2010, Lufthansa AirPlus Servicekarten v OHIM, C-216/10 P, not published, EU:C:2010:719, paragraph 26). Therefore, the opposition is rejected regardless of the degree of similarity, or even the identity of the signs at issue, if the goods which they designate are different (see order of 3 June 2015, The Sunrider Corporation v OHIM, C-142/14 P, not published, EU:C:2015:371, paragraph 108).
9. Consequently, since the General Court, in the present case, rejected the appellant’s arguments seeking a declaration that the Second Board of Appeal of EUIPO had erroneously concluded that there was no similarity between the goods at issue, it was entitled to confirm the lack of a likelihood of confusion, without having to take into consideration the alleged similarity or identity of the conflicting signs or, consequently, the principle of interdependence invoked by the appellant.
10. It follows, in my opinion, that the second ground of appeal must be rejected as manifestly unfounded.
11. In the light of those considerations, I consider that the appeal must be dismissed in its entirety.’
6 For the same reasons as those given by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.
7 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 has been served on the defendant and, therefore, before the latter could have incurred costs, Hernández Zamora must be ordered to bear its own costs.
On those grounds, the Court (Seventh Chamber) hereby:
1. Dismisses the appeal;
2. Orders Hernández Zamora SA to bear its own costs.
Done at Luxembourg, 19 October 2017.
A. Calot Escobar
President of the Seventh Chamber
* Language of the case: English.