Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

ORDER OF THE COURT (Tenth Chamber)

1 June 2017 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Regulation (EC) No 207/2009 — Article 8(1)(b) — Opposition proceedings — Figurative mark including the word elements ‘POLO CLUB SAINT-TROPEZ HARAS DE GASSIN’ — Partial rejection of the opposition)

In Case C‑10/17 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 January 2017,

Polo Club, established in Gassin (France), represented by D. Masson, avocat,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Lifestyle Equities CV, established in Amsterdam (Netherlands), represented by D. Russo, avvocato,

intervener at first instance,

THE COURT (Tenth Chamber),

composed of M. Berger (Rapporteur), E. Levits and F. Biltgen, Judges,

Advocate General: M. Szpunar,

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

Order

1        By its appeal, Polo Club asks, first, the Court to set aside the judgment of the General Court of the European Union of 10 November 2016, Polo Club v EUIPO — Lifestyle Equities (POLO CLUB SAINT-TROPEZ HARAS DE GASSIN) (T‑67/15, not published, ‘the judgment under appeal’, EU:T:2016:657), by which the General Court dismissed its action against the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 November 2014 (Case R 1882/2013-5), relating to opposition proceedings between Lifestyle Equities CV and Polo Club, and, second, to order EUIPO to pay all the costs.

 The appeal

2        Pursuant to 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.

3        That provision should be applied in the present case.

4        On 7 April 2017, the Advocate General took the following position:

‘1. I am of the view that the appeal in the case in question should be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded and that the appellant should be ordered to pay its own costs in accordance with Article 181 of the Rules of Procedure of the Court, for the following reasons.

2. The sole ground of appeal, 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), is divided, in essence, into four parts.

3. By the first three parts, the applicant disputes the General Court’s conclusions concerning the existence of the likelihood of confusion between the signs at issue. It submits that the General Court committed an error:

–        having found that the image of a polo player had distinctive character, with regard to the goods and services at issue (paragraph 54 of the judgment under appeal);

–        having relied on the fact that the services at issue in Class 41 are identical or similar,

–        having found that the signs at issue are similar.

4. I note that the appraisal of the facts and the assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice on appeal. By the first three parts of the ground of appeal, the appellant does not rely on any distortion of the facts by the General Court but seeks to call into question the factual assessments made by the General Court in the context of the assessment of the likelihood of confusion between the signs at issue.

5. Consequently, those three parts must be rejected as being manifestly inadmissible.

6. By the fourth part, the appellant alleges that the General Court misapplied the principle that the global assessment of the likelihood of confusion must be based on the overall impression produced by the signs at issue. According to the appellant, the General Court erred in law in isolating, in the context of the visual comparison of the signs, the image of a polo player and the words “polo club” (paragraph 61 of the judgment under appeal).

7. I note that that argument rests on a selective and manifestly incorrect reading of the judgment under appeal. A reading of paragraphs 58 to 64 and 78 of the judgment under appeal confirms, without any doubt, that the General Court’s analysis is based, correctly, on the overall impression of the signs at issue, account being taken of their distinctive and dominant elements.

8. Moreover, in so far as the appellant intends to complain that the General Court failed to carry out a global assessment while noting the requirement to assess the signs on the basis of the overall impression, I will limit myself to observing that such a complaint must be interpreted strictly in order to preserve the practical effect of the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, which does not allow the General Court to be sanctioned in relation to its sovereign assessment of the facts (see my opinion in OHIM v Grau Ferrer (C‑597/14 P, EU:C:2016:2, point 108).

9. The fourth part is therefore manifestly unfounded.

10. Finally, in the context of the first part of the ground of appeal, the appellant makes a procedural argument, complaining that the General Court confirmed the Board of Appeal’s reasoning that the Opposition Division was wrong to have refused to take into consideration the additional evidence provided for the purpose of assessing the enhanced distinctive character of the earlier marks.

11. In view of the fact that the submission of that complaint which is limited to that mere criticism is incomplete and does not refer to any specific provision of EU law that had allegedly been infringed by the General Court, that argument must be rejected as being manifestly inadmissible.

12. Consequently, the single ground of appeal must be rejected in its entirety as being in part manifestly inadmissible and in part manifestly unfounded.’

5        On the same grounds as those stated by the Advocate General, the appeal must be dismissed.

 Costs

6        Under Article 137 of the Rules of Procedure of the Court of Justice, 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. In the present case, since the present order was adopted before the appeal was served on the other parties to the proceedings and, consequently, before they could have incurred costs, Polo Club must be ordered to bear its own costs.

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

1.      The appeal is dismissed.

2.      Polo Club shall bear its own costs.

Luxembourg, 1 June 2017.

*      Language of the case: English.

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