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

ORDER OF THE COURT (Seventh Chamber)

19 March 2019 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court — European Union trade mark — Application for registration of the word mark SEVENFRIDAY — Opposition proceedings — Rejection of the application for registration — Regulation (EC) No 207/2009 — Article 8(1)(b) — Appeal manifestly inadmissible)

In Case C‑733/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 November 2018,

Sevenfriday AG, established in Zurich (Switzerland), represented by M. Mostardini, F. Mellucci, S. Pallavicini and G. Bellomo, lawyers,

applicant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Seven SpA, established in Leinì (Italy),

intervener at first instance,

THE COURT (Seventh Chamber),

composed of T. von Danwitz, President of the Chamber, M. Berger (Rapporteur) and P.G. Xuereb, Judges,

Advocate General: M. Campos Sánchez-Bordona,

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, Sevenfriday AG seeks to have set aside the judgment of the General Court of the European Union of 27 September 2018, Sevenfriday v EUIPO — Seven (SEVENFRIDAY) (T‑449/17, not published, ‘the judgment under appeal’, EU:T:2018:612), 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 2 May 2017 (Case R 2292/2016-2), relating to opposition proceedings between Seven Spa and Sevenfriday (‘the contested decision’). In the alternative, the applicant requests the registration of the word sign ‘SEVENFRIDAY’ as an EU trade mark for goods in Class 9 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’).

2        In support of its appeal, the appellant relies on a single ground, 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).

 The appeal

3        Under 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.

4        That provision must be applied in the present case.

5        On 25 February 2019, the Advocate General took the following Position:

‘1.      By its appeal, the appellant, [Sevenfriday], seeks to have set aside [the judgment under appeal], by which the General Court dismissed, in its entirety, its action seeking the annulment of the decision of the Second Board of Appeal of [EUIPO] of 2 May 2017 (Case R 2292/2016-2), relating to opposition proceedings between Sevenfriday AG and [Seven]. In the alternative, it requests the registration of its trade mark in respect of certain goods in Class 9 of the Nice Agreement.

2.      In its decision, EUIPO took the view that a likelihood of confusion, within the meaning of Article 8(1)(b) of [Regulation No 207/2009] existed in the mind of the relevant public, between the marks at issue, in particular, in view, first, of their low degree of similarity and, second, of the identity or at least the strong similarity between the goods in Classes 9, 16 and 18 of the Nice Agreement that they cover.

3.      In support of its appeal, the appellant raises a single ground, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

4.      For the reasons stated hereinafter, I propose that the Court should, in accordance with Article 181 of the Rules of Procedure, dismiss the present appeal as manifestly inadmissible.

5.      By the first part of the single ground of appeal, the appellant criticises, in essence, the General Court for not carrying out a thorough and rigorous assessment of the marks at issue, in so far as it is of the view, first, that Seven’s earlier marks, namely, the EU word mark SEVEN and the figurative mark 7SEVEN, mainly composed of the element “seven”, whether in word or figurative form, cannot be recognised as having an average or even low degree of distinctiveness and, second, that, in so ruling, the Court conferred on Seven a monopoly not only over a number expressing a quantity, but also over a complex combination of words containing that element, such as the name of its trade mark. Moreover, it considers, in the alternative, that that element “seven” should fall under the prohibition of registration referred to in Article 7(1)(c) and (d) of Regulation No 207/2009.

6.      It follows from Article 168(1)(b) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must identify precisely the contested points in the grounds of the judgment which the appellant seeks to have set aside and indicate precisely the legal arguments specifically advanced in support of the appeal, failing which the appeal or ground of appeal concerned is inadmissible (order of 12 September 2018, Holistic Innovation Institute v REA, C‑241/17 P, not published, EU:C:2018:704, paragraph 42 and the case-law cited).

7.      Accordingly, an appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court does not satisfy the requirements to state reasons under those provisions. However, the points of law examined at first instance may be argued again in the course of an appeal, provided that the appellant challenges the interpretation or application of EU law by the General Court. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, to that effect, judgment of 3 December 2015, Italy v Commission, C‑280/14 P, EU:C:2015:792, paragraph 43 and the case-law cited).

8.      In the present case, however, the appellant does not cite any paragraphs of the judgment under appeal or identify the ones it is contesting. In addition, the arguments submitted under the first part of the single ground of appeal reiterate verbatim the arguments succinctly put before the General Court, with the result that the appellant is in fact merely criticising the decision of the Second Board of Appeal of EUIPO the annulment of which it seeks without identifying specifically the error of law that allegedly vitiates the Court’s findings. In that regard, it should be noted that the Court responded, in full and in detail, in paragraphs 73 to 82 of the judgment under appeal, to the arguments put forward by the appellant.

9.      As regards the appellant’s alternative argument, concerning the applicability of Article 7(1)(c) and (d) of Regulation No 207/2009, it should be pointed out that the General Court examined, in those paragraphs of the judgment under appeal, the distinctiveness of the figurative or word element “seven”, under Article 8(1)(b) of that regulation, without it being deemed necessary to redefine the legal basis of the action, since that action had been brought, by the appellant, on the basis of that latter provision and not of Article 7(1)(c) and (d) of Regulation No 207/2009. Accordingly, it is not for the Court of Justice to change the subject matter of the proceedings before the General Court, in accordance with the second sentence of Article 170(1) of the Rules of Procedure, in so far as its jurisdiction, in an appeal, is limited to assessing the findings in law on the pleas argued at first instance (order of 26 February 2015, Fundação Calouste Gulbenkian v OHIM, C‑414/14 P, not published, EU:C:2015:157, paragraph 52).

10.      It follows that the first branch of the single ground of appeal must be rejected as clearly inadmissible.

11.      By the second part of the single ground of appeal, the appellant complains, in essence, that the General Court wrongly concluded that there was a likelihood of confusion between the marks at issue in finding them to be similar to an average degree. It is of the view, contrary to what the Court decided, that the element “friday” is dominant in the mark applied for and has a higher level of distinctiveness than the element “seven” of the earlier mark SEVEN. In addition, it calls into question the Court’s assessment in concluding that the name of its trade mark introduces a new concept.

12.      According to the settled case-law of the Court of Justice, it follows from Article 256 TFEU and from the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and assess the relevant facts and evidence. The assessment of that evidence and those facts thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal (order of 15 January 2019, Lion’s Head Global Partners v EUIPO, C‑553/18 P, not published, EU:C:2019:21, paragraph 5 (Position of the Advocate General, point 3 and the case-law cited)).

13.      In the present case, it should be noted that the appellant’s argument relating to the absence of a likelihood of confusion between the marks at issue seeks only to call into question the General Court’s assessment of the facts without claiming any error of law capable of invalidating the reasoning followed by EUIPO and subsequently confirmed by the Court in paragraphs 86 and 87 of the judgment under appeal.

14.      In that regard, it should also be noted that contesting the identification of dominant elements of a sign and the distinctiveness of the mark applied for, carried out by the General Court in paragraphs 27 to 31 of the judgment under appeal, raises a question of fact, not one of law subject to review by the Court of Justice (see, by analogy, orders of 11 September 2018, Krasnyiy oktyabr v EUIPO, C‑248/18 P, not published, EU:C:2018:699, paragraph 6 (Position of the Advocate General, point 9), and of 15 January 2019, Lion’s Head Global Partners v EUIPO, C‑554/18 P, not published, EU:C:2019:20, paragraph 5 (Position of the Advocate General, point 4 and the case-law cited)).

15.      It is necessary to apply that same reasoning with regard to the calling into question of the assessment carried out by the General Court, in paragraphs 54 to 63 of that judgment, of the existence of a conceptual similarity between the marks at issue (see, by analogy, order of 15 January 2019, Lion’s Head Global Partners v EUIPO, C‑553/18 P, not published, EU:C:2019:20, paragraph 5 (Position of the Advocate General, point 5 and the case-law cited)).

16.      Since the appellant has not, moreover, alleged distortion of the facts under the second part of the single ground of appeal, that part must therefore be rejected as manifestly inadmissible.

17.      In the alternative, it should be noted that, as regards the registration of its mark in respect of certain goods in Class 9 of the Nice Agreement, the appellant merely repeats the arguments that it had already put forward before the General Court. Consequently, in accordance with the settled case-law of the Court of Justice recalled in points 6 and 7 of the present Position, the second head of claim is manifestly inadmissible.

18.      In the light of all those considerations, it is necessary to reject in its entirety the single ground of appeal and, accordingly, the appeal as manifestly inadmissible and to order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure.’

6        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being manifestly inadmissible.

 Costs

7        Under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. Since in this case the present order has been adopted before the appeal was served on the other parties and, consequently, before those parties could have incurred costs, the appellant must be ordered to bear its own costs.

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

1.      The appeal is dismissed as manifestly inadmissible.

2.      Sevenfriday AG shall bear its own costs.

Luxembourg, 19 March 2019.

*      Language of the case: English.

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