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

Provisional text

ORDER OF THE COURT (Sixth Chamber)

15 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 figurative mark including the word element ‘fortune’ — Partial rejection of the application for registration)

In Case C‑23/17 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 January 2017,

For Tune sp. z o.o., established in Warsaw (Poland), represented by K. Popławska, adwokat,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Sixth Chamber),

composed of E. Regan, President of the Chamber, C.G. Fernlund (Rapporteur) and S. Rodin, Judges,

Advocate General: E. Sharpston,

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, For Tune sp. z o.o. seeks to have set aside the judgment of the General Court of the European Union of 8 November 2016, For Tune v EUIPO — Gastwerk Hotel Hamburg (fortune) (T‑579/15, not published, ‘the judgment under appeal’, EU:T:2016:644), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 August 2015 (Case R 2808/2014-5), relating to opposition proceedings between Gastwerk Hotel Hamburg GmbH & Co. KG and For Tune.

2        In support of its appeal, For Tune raises a single ground of appeal, divided into a number of complaints, alleging misinterpretation 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).

 The appeal

3        Under 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 that appeal in whole or in part.

4        That provision must be applied in the present case.

5        On 10 May 2017, the Advocate General took the following position:

‘1      By its first complaint, For Tune claims that the General Court looked only for similarities between the signs at issue, and did not take into account the differences between them.

2      According to the settled case-law of the Court, the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case. That assessment must, so far as concerns the visual, phonetic or conceptual similarities of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 34 and 35).

3      Contrary to what is claimed by For Tune, the General Court did in fact carry out, in the judgment under appeal, just such a global assessment of the likelihood of confusion. In paragraphs 37 to 43, 48 to 50 and 56 to 58 of that judgment, the General Court examined in detail the visual, phonetic and conceptual similarity of the signs at issue on the basis of the overall impression given by them. In the context of that examination, the General Court duly took into account not only the elements that were similar but also the elements that distinguished them (paragraphs 42, 48 and 58 of that judgment), and stated the reasons why the latter were unable to offset the similarities identified. The first complaint of the single ground of appeal should therefore be rejected as being manifestly unfounded.

4      By its second complaint, For Tune alleges that the General Court carried out a separate examination of each of the elements of which the signs at issue are composed and not, as the relevant case-law requires, a global comparison of the signs, for the purposes of assessing whether there is a likelihood of confusion.

5      That complaint is based on what is clearly a misreading of the judgment under appeal. In paragraphs 40 to 42, 48 to 50 and 56 to 58 of that judgment, having set out all the elements of the marks at issue, the General Court identified the dominant element of those marks before going on to make a global comparison of the marks. In so doing, the General Court correctly applied the case-law cited in paragraph 2 of this position. The second complaint should therefore be rejected as being manifestly unfounded.

6      By its third complaint, For Tune submits that the General Court failed to take account of the fact that certain elements of the trade mark applied for are not negligible and have a significant impact on the overall perception of that trade mark. For Tune disputes the dominant nature of the element “fortune” and emphasises the visual differences between the signs at issue.

7      This complaint is really designed to challenge the findings of fact made by the General Court. Since For Tune has not claimed any distortion by the General Court in that respect, such findings fall within the appraisal of the facts and of the evidence by the General Court. Consequently, this complaint is manifestly inadmissible.

8      In any event, the complaint is also manifestly unfounded. In so far as For Tune thereby maintains that the General Court relied solely on the dominant element of the signs at issue — that is to say, the word “fortune” — in order to carry out a global assessment of the similarity of those signs, the complaint is based on what is clearly a misreading of the judgment under appeal. While the General Court did indeed consider that element to dominate the signs at issue, it nevertheless included the other elements of those signs in its comparison (see, in that regard, paragraphs 39 to 44 of the judgment under appeal).

9      By the fourth complaint of the single ground of appeal, For Tune submits that the General Court failed to take into account the judgment of 4 February 2014, Mega Brands v OHIM — Diset (MAGNEXT) (T‑604/11 and T‑292/12, not published, EU:T:2014:56, paragraph 29) as an example of a well-executed comparison between a word mark and a figurative mark containing a dominant word element.

10      There is no contradiction between For Tune’s argument, thus construed, and the General Court’s finding in paragraph 44 of the judgment under appeal, according to which the General Court declined to acknowledge any fundamental principle as having been established by that case-law. The fourth complaint of the single ground of appeal should therefore be rejected as being manifestly unfounded.

11      By the fifth complaint of the single ground of appeal, For Tune takes issue with the way in which the trade marks at issue were compared. It claims that the General Court concluded that the fact that one element of one of the signs is similar to an element of the other sign is sufficient for the relevant public to associate the two signs in question, whereas the case-law confirmed that there may be trade marks the overall impression of which is different despite the fact that they share a common element, in particular where the comparison being made is between a word mark and a word and figurative mark.

12      This complaint, under the guise of arguments alleging that the case-law of the European Union has been disregarded, is in fact designed to challenge afresh the assessment of the similarity of the marks at issue, which falls within the appraisal of the facts by the General Court. Consequently, given that no distortion of the facts has been alleged, the complaint should be rejected as being manifestly inadmissible.

13      In addition, this complaint is based on a misreading of the judgment under appeal and, as such, is manifestly unfounded. Although the General Court based its assessment in particular on the element “fortune” which dominates the signs at issue, it did not confine its assessment to that common element alone (see, in that regard, paragraphs 3 and 8 of the present position).

14      Having regard to the foregoing, I propose that the Court dismiss the appeal, in accordance with Article 181 of the Rules of Procedure, as being in part manifestly inadmissible and in part manifestly unfounded, and that For Tune be ordered to bear its own costs.’

6        On the same grounds as those stated by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

 Costs

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. In the present case, 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, For Tune must be ordered to bear its own costs.

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

1.      The appeal is dismissed.

2.      For Tune sp. z o.o. shall bear its own costs.

Luxembourg, 15 June 2017.

* Language of the case: English.

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