ORDER OF THE COURT (Sixth Chamber)
20 June 2017 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of the word mark RESPIMER — Likelihood of confusion — Rejection of the application for registration)
In Case C-662/16 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 December 2016,
Laboratoire de la mer SASU, established in Saint-Malo (France), represented by J. Blanchard, avocat,
the other party to the proceedings being:
European Union Intelltectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Sixth Chamber),
composed of E. Regan, President of the Chamber, J.-C. Bonichot and S. Rodin (Rapporteur), Judges,
Advocate General: J. Kokott,
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, Laboratoire de la mer SASU seeks to have set aside the order of the General Court of the European Union of 18 October 2016, Laboratoire de la mer v EUIPO — Boehringer Ingelheim Pharma (RESPIMER) (T-109/16, not published, ‘the order under appeal’, EU:T:2016:627), by which that court dismissed its application for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 January 2016 (Case R 3109/2014-5) relating to opposition proceedings brought by Boehringer Ingelheim Pharma GmbH & Co. KG following the filing of a trade mark application for the sign ‘RESPIMER’ by Laboratoire de la mer.
2 Laboratoire de la mer also claims that the Court should refer the case back to the General Court and order EUIPO to pay the costs.
3 In support of its appeal, Laboratoire de la mer relies on a single ground of appeal, divided into two parts, alleging 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).
4 Pursuant to 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 the appeal in whole or in part.
5 That provision should be applied in the present case.
6 On 15 May 2017, the Advocate General took the following position:
‘1. I propose that the appeal in this case be dismissed as in part manifestly inadmissible and in part manifestly unfounded and Laboratoire de la mer be ordered to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure, for the following reasons.
2. The dispute giving rise to the present appeal concerns the EU trade mark applied for, RESPIMER, and the earlier EU trade mark RESPIMAT. In its single ground of appeal, which may be divided into two lines of argument, the appellant contends that the General Court infringed Article 8(1)(b) of Regulation No 207/2009.
The definition of the relevant public and its consequences
3. In the first place, the appellant submits that, by endorsing the assessment of EUIPO’s Fifth Board of Appeal as regards the above average level of attention of the relevant public but failing to draw any appropriate conclusions from this, the General Court did not conduct a proper examination of the legality of the Board of Appeal’s decision. That argument must be rejected as manifestly inadmissible as the appellant has not identified any error allegedly committed by the General Court. Thus, the appellant has failed to indicate both those aspects of the order under appeal with which it takes issue and the legal arguments which support its submissions.
4. Moreover, even if the appellant’s argument were to be understood as meaning that, given the high level of the relevant public’s attention, the General Court should have concluded, after carrying out the global assessment of the likelihood of confusion, that there was less likelihood of confusion, that argument cannot succeed either. That question relates to the assessment of the facts, which — save where there is some distortion of the facts, which in this case is neither alleged nor apparent — is not subject to review by the Court of Justice on appeal.
The assessment of the signs at issue and the conclusion to be drawn from the conceptual differences between those signs
5. In the second place, the appellant submits that both EUIPO’s Fifth Board of Appeal and the General Court made an incorrect assessment of the signs at issue and of the likelihood of confusion between the signs and, what is more, failed to draw appropriate conclusions from that assessment. Accordingly, account should have been taken of the fact that, for the vast majority of the relevant public, the term “respi” has a purely descriptive meaning, so that the relevant public will naturally focus on the last components of the signs at issue, namely “mat” and “mer”, resulting in the perception of a conceptual difference. Furthermore, the fact that a minority of the EU public who do not speak any language in which the terms “mer” and “mat” have any meaning may not perceive any conceptual difference between the signs at issue is of no consequence. There is no requirement that the whole of the EU public should have the same perception of the signs.
6. That line of argument cannot succeed either, as it is manifestly inadmissible in part and manifestly unfounded in part.
7. Accordingly, with regard, first, to the global assessment of the signs at issue and of the likelihood of confusion, the appellant essentially criticises, not the order under appeal, but the decision of the Fifth Board of Appeal of EUIPO. Indeed, the appellant merely repeats the argument that it put forward before the General Court, which was rejected by that court, without identifying any alleged errors of law in the order under appeal. It therefore appears that the appellant is in fact simply seeking a re-examination of the application submitted to the General Court and of that court’s assessment of the facts. As indicated above, save where there is some distortion of the facts, the Court of Justice does not have jurisdiction to carry out such a review on appeal.
8. Second, nor is it possible to accept the appellant’s argument that the Board of Appeal should have concluded that there was no likelihood of confusion between the signs at issue on account of the conceptual difference which, it claims, will be perceived between the signs at issue by part of the relevant public.
9. First, contrary to what the appellant appears to consider, the General Court did not find that there was absolutely no likelihood of confusion, owing to the conceptual difference between the signs at issue, for the section of the public for whom the terms “respi”, “mer” and “mat” have a meaning. On the contrary, it is apparent from paragraphs 33 to 40 of the order under appeal that the General Court endorsed the assessment of EUIPO’s Fifth Board of Appeal that, even if part of the relevant public might perceive a certain conceptual difference between the two signs at issue, such a difference would not in any event be sufficient to cancel out entirely the visual and phonetic similarity found to exist between them. That assessment is the responsibility of the General Court alone and cannot, as stated above, be called into question on appeal, save where there is distortion of the facts.
10. Second, the appellant’s argument that, as regards the global assessment of the likelihood of confusion, the fact that there is a likelihood of confusion for only part of the relevant public is of no consequence, must in any event be rejected as manifestly unfounded. Thus, it is apparent from the case-law of the Court of Justice that it does not follow from Article 8(1)(b) of Regulation No 207/2009 that, for an EU trade mark to be refused registration under that provision, the likelihood of confusion must exist in all Member States and in all language areas of the European Union. The unitary character of the EU trade mark, as affirmed in Article 1(2) of Regulation No 207/2009, means that an earlier EU trade mark can be relied on in opposition proceedings against any application for registration of an EU trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (judgment of 18 September 2008, Armacell v OHIM, C-514/06 P, not published, EU:C:2008:511, paragraphs 56 and 57; orders of 16 September 2010, Dominio de la Vega v OHIM, C-459/09 P, not published, EU:C:2010:533, paragraphs 29 and 30, and of 1 December 2016, Market Watch Franchise & Consulting v EUIPO, C-401/16 P, not published, EU:C:2016:923, paragraph 5).
11. It follows that the appellant cannot criticise the General Court for endorsing the conclusion of EUIPO’s Fifth Board of Appeal that there is a likelihood of confusion between the signs at issue, inter alia, because, in certain Member States or language areas of the European Union in which the words “respi”, “mer” and “mat” have no meaning, the signs at issue will be perceived as purely fanciful words devoid of any meaning.
12. It follows from the foregoing considerations that the present appeal must be dismissed in its entirety as in part manifestly inadmissible and in part manifestly unfounded.’
7 On the same grounds as those adopted by the Advocate General, the appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded.
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 has been served on the defendant and, therefore, before the latter could have incurred costs, Laboratoire de la mer must be ordered to bear its own costs.
On those grounds, the Court (Sixth Chamber) hereby orders that:
1. The appeal is dismissed.
2. Laboratoire de la mer SASU is to bear its own costs.
Luxembourg, 20 June 2017.
A. Calot Escobar
President of the Sixth Chamber
* Language of the case: English.