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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

20 November 2024 (*)

( EU trade mark - Opposition proceedings - Application for EU figurative mark The King of Soho - Earlier EU and national word marks SOHO - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001 - Correction of the decision of the Board of Appeal - Article 102 of Regulation 2017/1001 )

In Case T‑13/24,

Pernod Ricard, established in Paris (France), represented by T. de Haan and S. Vandezande, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

West End Drinks Ltd, established in London (United Kingdom), represented by J.‑C. Rebling, lawyer,

THE GENERAL COURT (Third Chamber),

composed of P. Škvařilová-Pelzl, acting as President, I. Nõmm (Rapporteur) and G. Steinfatt, Judges,

Registrar: P. Nuñez Ruiz,

having regard to the written part of the procedure,

further to the hearing on 10 September 2024,

gives the following

Judgment

1        By its action based on Article 263 TFEU, the applicant, Pernod Richard, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 November 2023 (Case R 1380/2022‑5) (‘the contested decision’), correcting the decision of 19 June 2023.

 Background to the dispute

2        On 18 July 2018, the intervener, West End Drinks Ltd, filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:

3        The mark applied for covers goods in Class 33 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, corresponding to the following description: ‘Gin; vodka’.

4        On 11 December 2018, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5        The opposition was based on the following earlier rights:

–        the earlier EU word mark SOHO, filed on 29 September 2005 and registered on 6 October 2006 under No 4 660 494, in respect of ‘alcoholic beverages (except beers), namely liqueurs and prepared wine cocktails’ in Class 33;

–        the earlier French word mark SOHO, filed and registered on 16 February 1987 under No 1 394 356, in respect of ‘spirits, liqueurs and notably cocktails and cocktail bases’ in Class 33.

6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

7        On 2 June 2022, the Opposition Division upheld the opposition.

8        On 28 July 2022, the intervener filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By decision of 19 June 2023 (Case R 1380/2022‑5), the Fifth Board of Appeal upheld the appeal and rejected the opposition in its entirety.

10      On 15 November 2023, the Fifth Board of Appeal adopted the contested decision. First of all, it recalled that Article 102 of Regulation 2017/1001 allows it to correct linguistic errors, errors of transcription or manifest oversights affecting a decision. Next, it found that paragraph 45 of the decision of 19 June 2023 should be deleted since, in essence, that decision stated that, in accordance with the geographical scope of the earlier EU trade mark, the relevant territory was that of the European Union and was therefore not limited to Spain and France. In addition, it pointed out that the decision of 19 June 2023 had stated several times, referring in that regard to the judgment of 28 April 2021, West End Drinks v EUIPO – Pernod Ricard (The King of SOHO) (T‑31/20, not published, EU:T:2021:217), that the level of attention of the relevant public was ‘average’ and that, therefore, it was necessary to correct the error in paragraph 107 of the decision of 19 June 2023 referring to an ‘average to high’ level of attention. Lastly, it noted that paragraphs 95 and 98 of the decision of 19 June 2023 incorrectly reflected the result of the examination of the phonetic and conceptual similarity of the marks at issue, carried out in paragraphs 79, 80 and 83 of that decision and that the Board of Appeal could therefore correct them.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

12      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs in the event that an oral hearing is convened.

13      The intervener contends, in essence, that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

14      The applicant relies, in essence, on two pleas in law, alleging, first, infringement of Article 41 of the Charter of Fundamental Rights of the European Union, Article 94(1) of Regulation 2017/1001 and Article 27(2) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1) and, secondly, infringement of Article 102 of Regulation 2017/1001.

15      The Court considers it appropriate first to examine the second plea in law, alleging infringement of Article 102 of Regulation 2017/1001.

 The second plea in law, alleging infringement of Article 102 of Regulation 2017/1001

16      The applicant maintains that the corrections and deletions made by the Board of Appeal in the contested decision infringe Article 102 of Regulation 2017/1001. The Board of Appeal was wrong to consider that, in the application lodged in Case T‑563/23, the applicant merely identified simple ‘clerical errors’ in the decision of 19 June 2023 and that they could be corrected pursuant to that provision.

17      The applicant states that the deletion of paragraph 48 of the decision of 19 June 2023 does not arise from an error or oversight within the meaning of Article 102 of Regulation 2017/1001, but that it leaves that matter to the Court’s discretion. Furthermore, it states that the deletion of paragraph 45 of that decision, which concerns the relevant territory, the amendment of paragraphs 95 and 98, which contain assessments on the similarity of the signs, and the amendment of paragraph 107, relating to the level of attention of the relevant public, go far beyond a correction of form relating to linguistic errors, errors of transcription or manifest oversights.

18      EUIPO, supported by the intervener, disputes those arguments. First of all, it disputes that, in paragraph 12 of the contested decision, the Board of Appeal distorted the applicant’s arguments relating to the existence of simple ‘clerical errors’ in the decision of 19 June 2023. It submits that, in any event, that plea must be rejected as ineffective or unsubstantiated in the absence of any explanation as to how that alleged distortion affects the substantive outcome of the decision of 19 June 2023. Next, it notes that paragraph 45 of the decision of 19 June 2023 refers to the public in Spain and France, whereas that decision expressly stated that the relevant territory was the territory of the whole of the European Union and that the Board of Appeal, in assessing the existence of a likelihood of confusion, focused on the English-speaking part of the relevant public. In addition, it submits that the correction made to paragraph 107 of the decision of 19 June 2023 is justified by the fact that, throughout that decision, the level of attention of the relevant public was presented as ‘average’. It submits that, in any event, the reference to the ‘average to high’ level of attention in paragraph 107 of that judgment reflected the varying degrees of attention among the relevant public (the public at large and professionals), which were indeed acknowledged by the Board of Appeal without departing from the principle that the likelihood of confusion must be assessed with the least attentive part of the relevant public in mind. Lastly, paragraphs 95 and 98 of the decision of 19 June 2023 incorrectly reflect the restatement of the result of the examination of the phonetic and conceptual similarity of the marks set out in paragraphs 79, 80 and 83 of that decision. EUIPO submits that the incongruous reference to a lower degree of phonetic and conceptual similarity in paragraphs 95 and 98 must be regarded as a manifest oversight that does not affect the actual substance of the overall assessment of the likelihood of confusion.

19      It is clear from the wording of Articles 102 and 103 of Regulation 2017/1001 that only Article 103 refers to ‘obvious error[s]’, while Article 102 now refers only to ‘manifest oversights’.

20      Article 102(1) of Regulation 2017/1001, entitled ‘Correction of errors and manifest oversights’, reads as follows:

‘[EUIPO] shall correct any linguistic errors or errors of transcription and manifest oversights in its decisions, or technical errors attributable to it in registering an EU trade mark or in publishing the registration of its own motion or at the request of a party.’

21      As for Article 103(1) of Regulation 2017/1001, entitled ‘Revocation of decisions’, it provides as follows:

‘Where [EUIPO] has made an entry in the Register or taken a decision which contains an obvious error attributable to [EUIPO], it shall ensure that the entry is cancelled or the decision is revoked. …’

22      It should be noted that the provisions previously applicable to the correction and revocation of EUIPO decisions referred, respectively, to ‘obvious mistakes’ (Rule 53 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1)) and to ‘obvious procedural error[s]’ (Article 80 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1)).

23      It is apparent from the case-law on the interpretation of those provisions that, in view of the importance of the binding nature of the operative part of a final decision made by a competent authority and following the principle of legal certainty, the rule enabling in exceptional circumstances subsequent corrections to be made to that decision, by means of correction or revocation, is to be interpreted strictly and is therefore limited to obvious formal mistakes (see, to that effect, judgments of 14 December 2006, Gagliardi v OHIM – Norma Lebensmittelfilialbetrieb (MANŪ MANU MANU), T‑392/04, not published, EU:T:2006:400, paragraph 55, and of 9 September 2011, dm-drogerie markt v OHIM – Distribuciones Mylar (dm), T‑36/09, EU:T:2011:449, paragraphs 73 and 75).

24      It nevertheless follows from the case-law cited in paragraph 23 above that there is a difference in the type of error that may give rise to a correction or a revocation because of the distinction between the correction procedure and the revocation procedure (judgment of 28 May 2020, Aurea Biolabs v EUIPO – Avizel (AUREA BIOLABS), T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 27).

25      The correction procedure does not involve the annulment of the corrected decision, but merely results in the correction of the errors contained therein by means of a corrigendum decision. By contrast, the revocation procedure results in the annulment of the erroneous decision and involves a return to the stage of the procedure at which the case before EUIPO was before the adoption of that decision, without there being a correction of the error identified in the revocation decision itself (judgment of 28 May 2020, AUREA BIOLABS, T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 28).

26      Thus, corrections are limited to obvious formal mistakes which affect the form of the decision taken only but not its scope and substance (judgment of 14 December 2006, MANŪ MANU MANU, T‑392/04, not published, EU:T:2006:400, paragraph 55). This is true of errors which are so obvious that no wording other than the corrected wording could be intended (see, to that effect, judgment of 9 September 2011, dm, T‑36/09, EU:T:2011:449, paragraphs 73 and 75) and of errors which do not justify invalidating or revoking the decision marred by them (see, to that effect, judgment of 15 March 2011, Ifemy’s v OHIM – Dada & Co Kids (Dada & Co. kids), T‑50/09, EU:T:2011:90, paragraph 32) and hearing the parties (judgment of 28 May 2020, AUREA BIOLABS, T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 29).

27      By contrast, the adoption of a revocation decision is justified by errors which do not allow the operative part of the decision at issue to be maintained without a new analysis which will be carried out subsequently by the body which took that decision. This is true of errors affecting the award of costs (see, to that effect, judgment of 1 July 2009, Okalux v OHIM – Messe Düsseldorf (OKATECH), T‑419/07, EU:T:2009:238, paragraphs 33 and 40), those relating to the right to be heard (see, to that effect and by analogy, judgment of 18 October 2011, Reisenthel v OHIM – Dynamic Promotion (Hampers, crates and baskets), T‑53/10, EU:T:2011:601, paragraphs 37 to 38) or those concerning the obligation to state reasons (see, to that effect, judgment of 31 October 2019, Repower v EUIPO, C‑281/18P, EU:C:2019:916, paragraph 34).

28      The difference between correction cases and revocation cases, explained in the case-law handed down under the provisions which applied previously, set out in points 26 and 27 above, has not been called into question by the change in the terms used in the relevant provisions in the present case.

29      The distinction between errors justifying correction and errors justifying revocation was maintained and the substitution of the expression ‘obvious mistakes’ with ‘manifest oversights’ in Article 102 of Regulation 2017/1001 is precisely explained by the need to maintain the distinction with the errors referred to in Article 103 of Regulation 2017/1001, now called ‘obvious error’ and no longer ‘obvious procedural error’. However, since the terms used in several language versions of Article 102 of Regulation 2017/1001 (inter alia ‘Versehen’ in German, ‘sviste’ in Italian, ‘přehlédnutí’ in Czech or ‘equivocaciones’ in Spanish) refer both to ‘oversights’ and, more broadly, to ‘errors’, EUIPO must be regarded as being able to continue to correct certain errors on the basis of Article 102 of Regulation 2017/1001, without relying on the revocation procedure governed by Article 103 of Regulation 2017/1001 (judgment of 28 May 2020, AUREA BIOLABS, T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 32).

30      As regards errors that can be corrected under Article 102 of Regulation 2017/1001, it is apparent from the case-law on the interpretation of that new provision (see, to that effect, judgments of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (FLIS Happy Moreno choco), T‑708/18, not published, EU:T:2019:762, paragraphs 38 to 41, and of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (Happy Moreno choco), T‑498/18, EU:T:2019:763, paragraphs 37 to 40) that it is still not possible to correct errors affecting the substance of the decision taken, such as those relating to the list of goods covered by the earlier mark, which entails a new assessment of the existence of a likelihood of confusion (judgment of 28 May 2020, AUREA BIOLABS, T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 32).

31      It follows that an error identified in a decision may be corrected, pursuant to Article 102 of Regulation 2017/1001, where it constitutes an incongruous element in a decision which is otherwise consistent and unambiguous, that is to say where it is clear that the error is the result of an oversight or a slip of the pen which must be manifestly corrected in the proposed manner because no wording other than that resulting from the correction could have been envisaged (judgment of 28 May 2020, AUREA BIOLABS, T‑724/18 and T‑184/19, EU:T:2020:227, paragraph 33).

32      It is in the light of that case-law that the corrections made by the Board of Appeal in the contested decision must be examined.

33      First, as regards the deletion of paragraph 48 of the decision of 19 June 2023, it must be stated that it repeats in essence the content of paragraph 46 thereof. Accordingly, the Board of Appeal was entitled, without erring in law, to delete paragraph 48 pursuant to Article 102 of Regulation 2017/1001.

34      Secondly, as regards the relevant public, the Board of Appeal justified the deletion of paragraph 45 of the decision of 19 June 2023 on the ground that, in the part relating to the earlier EU trade mark and in that relating to the determination of the relevant public, the abovementioned decision defined the relevant territory according to the geographical extent of that earlier mark and thus referred to the territory of the European Union. It stated that the paragraph 45 in question had been copied in the decision by mistake, that it had been placed in a chapter unrelated to its content and that its content contradicted findings made in respect of the earlier EU trade mark.

35      However, it must be stated that paragraph 45 of the decision of 19 June 2023 contains an unequivocal statement of position by the Board of Appeal in so far as it stated that it had ‘decided to assess the likelihood of confusion in respect of the public in France and Spain’ and that it expressly justified that decision by the fact that ‘the case-law and evidence on file mainly concern th[o]se Member States’. It supported its reasoning by reference to the judgment of 1 February 2017, Gómez Echevarría v EUIPO – M and M Direct (wax by Yuli’s) (T‑19/15, not published, EU:T:2017:46, paragraphs 17 to 21).

36      It should be noted that, in paragraphs 24 to 40 of the decision of 19 June 2023, the Board of Appeal examined the evidence of genuine use of the earlier EU trade mark. It noted in paragraph 30 of the decision in question that the invoices submitted concerned, inter alia, sales of goods in Spain and France. Reference was also made, in paragraph 35, to invoices and market studies proving use of the sign in the European Union, ‘specifically in France’. Paragraph 45, under the heading ‘Article 8(1)(b) [of Regulation 2017/1001]’, came after the analysis of genuine use of the earlier EU trade mark in which reference had been made to such use in, inter alia, Spain and ‘specifically’ in France.

37      A causal link cannot therefore be totally ruled out between the examination carried out by the Board of Appeal of the genuine use of the earlier EU trade mark and its choice to focus on the public in Spain and France in the context of the examination of compliance with Article 8(1)(b) of Regulation 2017/1001.

38      In those circumstances, the fact that paragraph 47, under the heading ‘The relevant public’, of the decision of 19 June 2023 states that ‘the earlier trade mark, the use of which is proven, is a European Union trade mark, thus the relevant territory is the territory of the whole European Union’ is not sufficient to justify the finding that paragraph 45 is the result of an obvious formal mistake, within the meaning of the case-law cited in paragraph 26 above, which is so obvious that no text other than that resulting from the correction could be envisaged.

39      It should be added that the Board of Appeal stated that paragraph 45 had been ‘copied’ in the decision ‘by error’ and placed in the wrong chapter in contradiction with the passage devoted to the use of the earlier EU trade mark. First, as the applicant correctly points out, the Board of Appeal did not state from where the paragraph at issue had been ‘copied by error’. Secondly, in line with what has been pointed out in paragraph 36 above, numerous pieces of evidence submitted by the applicant mainly related to Spain and France, so that the content of paragraph 45 did not contain any manifest contradiction in relation to the other considerations set out in the decision of 19 June 2023.

40      Thirdly, as regards the level of attention of the relevant public, the Board of Appeal observed that the decision of 19 June 2023, in particular in paragraphs 49 to 52 thereof, had presented the average consumer’s level of attention as being ‘average’ and not ‘average to high’. It thus found that paragraph 107 of that decision was inconsistent with paragraphs 49 to 52 thereof and that its correction, consisting of replacing the expression ‘average to high’ with the word ‘average’ alone, was obvious.

41      However, while it is true that, in paragraphs 49 to 51 of the decision of 19 June 2023, the Board of Appeal unequivocally stated that the level of attention of average consumers with regard to the goods concerned was average, it found, in paragraph 52 of that decision, first of all, that the average consumer of alcohol ‘pays attention’ to the class and type of beverage, its characteristics, its origin, its production method, the trade mark and the price, next, that it ‘also pays attention’ to detail in view of the great variety of competing products and, lastly, that the relevant public ‘will choose … carefully’ a beverage from one group or the other considering the significant effects that alcohol consumption may have on the human body.

42      It cannot be ruled out that, by stating in paragraph 107 of the decision of 19 June 2023 that the level of attention of the relevant public varied from ‘average to high’, the Board of Appeal drew conclusions from that paragraph 52.

43      In other words, the content of paragraph 107 of the decision of 19 June 2023 as corrected by the contested decision is not so obvious that no text other than that resulting from the correction could be envisaged.

44      Fourthly, as regards the assessment of the visual, phonetic and conceptual similarity of the marks, the Board of Appeal had found, in paragraphs 79, 80 and 83 of the decision of 19 June 2023, that they were visually similar to a ‘very low’ degree, ‘lowly’ similar conceptually and similar to an ‘above-average degree’ or ‘at most highly average’ phonetically. In the part devoted to the overall assessment of the likelihood of confusion, paragraph 95 of that decision had stated that the marks at issue were phonetically similar to ‘at most an average’ degree and that they were visually and conceptually similar to a ‘very low’ degree, and paragraph 98 had referred to a very low degree of visual and conceptual similarity.

45      In paragraphs 9, 10, 22 and 23 of the contested decision, the Board of Appeal stated that paragraphs 95 and 98 of the decision of 19 June 2023 misrepresented the results of the in-depth examination of the similarity of the marks at issue carried out in paragraphs 79, 80 and 83. It thus corrected paragraph 95 to state that those marks were phonetically similar to an ‘above-average’ degree and that, conceptually, they were ‘merely lowly similar’. It also amended paragraph 98 by classifying the conceptual similarity as ‘low’.

46      As regards the assessment of conceptual similarity in paragraphs 95 and 98 of the decision of 19 June 2023, the reasoning set out in paragraphs 81 to 86 of the abovementioned decision does not in any way permit the inference that the addition of the word ‘very’ before the adjective ‘low’ is a priori the result of a simple error which is so obvious that no text other than that resulting from the correction could be envisaged and which would not justify invalidating or revoking that decision.

47      It is apparent from the conceptual comparison, carried out in paragraphs 81 to 86 of the decision of 19 June 2023, that, after stating, in paragraph 83 of that decision, that in one scenario the degree of conceptual similarity between the marks at issue is low, the Board of Appeal refers, in paragraph 84 of that decision, to a different scenario and, in paragraphs 85 and 86 of that decision, makes findings as to the conceptual scope of the mark applied for and the earlier EU trade mark, without, however, drawing any conclusions as to the degree of conceptual similarity to be found as regards the marks at issue.

48      Therefore, the passage relating to the conceptual comparison of the marks at issue may be interpreted in multiple ways as regards the degree of conceptual similarity of the marks at issue. Accordingly, the correction of paragraphs 95 and 98 of the decision of 19 June 2023, made by the contested decision as to the degree of conceptual similarity to be found, is an alteration capable of affecting the scope and substance of the decision taken without it being demonstrated that no other conclusion could have been reached as regards conceptual similarity. It follows from the case-law cited in paragraph 26 above that such an amendment by means of correction is not permitted.

49      As regards the assessment of phonetic similarity, it was noted in paragraph 44 above that paragraph 80 of the decision of 19 June 2023 had referred to the existence of an ‘above-average degree [of similarity]’ or an ‘at most highly average’ degree of similarity. It must be stated that the latter ambivalent expression is not manifestly far removed from that in paragraph 95 of that decision. That is reinforced by paragraphs 96 and 97 of that decision, which highlight the possible tendency, under normal marketing conditions, to abbreviate the mark applied for to its first element, namely ‘the king’ or ‘the king of’.

50      In those circumstances, the content of paragraph 95 of the decision of 19 June 2023, which initially referred to ‘at most an average’ degree of phonetic similarity, now refers, following its correction by the contested decision, to an ‘above-average’ degree of similarity. In the light of the considerations set out in paragraph 49 above, the content of the corrected paragraph 95 is not so obvious that no text other than that resulting from the correction could be envisaged.

51      In the light of all the foregoing, the second plea must be upheld in so far as the contested decision deleted paragraph 45 of the decision of 19 June 2023 and in so far as it amended paragraphs 95 and 98 relating to the assessment of conceptual similarity, paragraph 95 on the assessment of phonetic similarity and paragraph 107 as regards the level of attention of the relevant public of that decision.

52      By contrast, the second plea must be rejected in so far as it relates to the part of the contested decision that deleted paragraph 48 of the decision of 19 June 2023.

 The first plea, alleging infringement of Article 41 of the Charter of Fundamental Rights, Article 94(1) of Regulation 2017/1001 and Article 27(2) of Regulation 2018/625

53      In the light of the foregoing, it is necessary to examine the first plea in law in order to determine whether it may lead to the annulment of the contested decision in so far as it deleted paragraph 48 of the decision of 19 June 2023.

54      The applicant claims that the Board of Appeal infringed the right to good administration enshrined in Article 41 of the Charter of Fundamental Rights. First of all, it submits that the Board of Appeal delivered a decision of very poor quality and then relied directly and explicitly on the application to ‘correct’ its initial decision on a number of points which affect both the substance of that decision and the reasoning on which it was based. Next, it criticises the Board of Appeal for not hearing its observations before adopting the contested decision. Lastly, it submits that the Board of Appeal refused to grant it access to the administrative file by referring to the correspondence in an unrelated case. In that regard, it complains that EUIPO lied by stating, in a letter of 11 December 2023, that no new evidence was added to the file. The applicant submits, on the contrary, that the contested decision was based on the application and that that document must necessarily be included in the file.

55      EUIPO disputes those arguments.

56      First, the applicant is wrong to claim that the Board of Appeal infringed Article 41(2) of the Charter of Fundamental Rights in that, in order to delete paragraph 48 of the decision of 19 June 2023, it relied, outside any legal framework, on the application lodged by the applicant in Pernod Ricard v EUIPO – West End Drinks (The King of SOHO) (T‑563/23) and thus benefited from the work carried out and paid for by the applicant.

57      It is necessary to bear in mind, at the outset, the analysis set out in paragraph 33 above according to which the Board of Appeal was entitled, without erring in law, to delete paragraph 48 of the decision of 19 June 2023 pursuant to Article 102 of Regulation 2017/1001.

58      That is an obvious error that both the Board of Appeal and the applicant could themselves find. The applicant cannot therefore rely on the fact that it ‘brought to light’ information on which the Board of Appeal then relied to the detriment of that applicant.

59      Next, the applicant does not substantiate how the repetition in paragraph 48 of the decision of 19 June 2023 is sufficient to conclude that that decision is of ‘very poor quality’ and that the principle of good administration has therefore not been complied with.

60      Furthermore, as EUIPO quite rightly points out in its written pleadings, there is no legal obstacle to prevent the Boards of Appeal from taking cognisance of an action for annulment brought against one of their decisions and, as the case may be, from finding that there is an error that may be corrected under Article 102 of Regulation 2017/1001.

61      Lastly, EUIPO rightly points out that, logically, errors are most often identified where a party raises objections to a decision, which necessarily occurs after notification of the decision in question. The fact that errors for the purposes of Article 102 of Regulation 2017/1001 are identified and subsequently corrected in such circumstances does not in itself imply that the Board of Appeal failed to comply with the principle of good administration.

62      Secondly, the applicant argues in vain that the Board of Appeal should have heard it prior to deleting paragraph 48.

63      It is apparent from the analysis set out in paragraph 33 above that the repetition in paragraph 48 of the decision of 19 June 2023 could perfectly well be corrected pursuant to Article 102 of Regulation 2017/1001.

64      That provision does not in any way require EUIPO to consult the parties before making such a correction.

65      It is true that the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement (judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 31 and 39, and of 7 December 2018, GE.CO.P. v Commission, T‑280/17, EU:T:2018:889, paragraph 44).

66      However, Article 41(2) of the Charter of Fundamental Rights guarantees the right of every person to be heard only in relation to an individual measure which would affect that person adversely. The mere deletion of a repetitive passage does not adversely affect the applicant.

67      Accordingly, the Board of Appeal did not infringe Article 41 of the Charter of Fundamental Rights by deleting paragraph 48 of the decision of 19 June 2023 without first hearing the applicant.

68      Thirdly, for the reasons set out in paragraphs 57 to 61 above, it is necessary to reject the applicant’s argument that the Board of Appeal could not, without infringing Article 94(1) of Regulation 2017/1001 and Article 27(2) of Regulation 2018/625, assume jurisdiction for external documents and respond to them in the form of an individual administrative decision.

69      It is equally futile for the applicant to criticise the Board of Appeal for refusing it access to the administrative file since the Board of Appeal was perfectly entitled to remove paragraph 48 without first hearing the applicant.

70      Accordingly, the first plea must be rejected in so far as it concerns the deletion of paragraph 48 of the decision of 19 June 2023.

71      It follows from all of the foregoing that the contested decision must be annulled in so far as it deleted paragraph 45 of the decision of 19 June 2023 and amended paragraphs 95 and 98 thereof relating to the assessment of conceptual similarity, paragraph 95 thereof relating to the assessment of phonetic similarity and paragraph 107 thereof relating to the level of attention of the relevant public, and that the action must be dismissed as to the remainder.

 Costs

72      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

73      EUIPO and the intervener have been unsuccessful in the main in the present case. However, the applicant requested that only EUIPO be ordered to pay the costs incurred by it. In those circumstances, EUIPO must be ordered, in addition to bearing its own costs, to pay those incurred by the applicant. The intervener shall bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 November 2023 (Case R 1380/2022‑5) in so far as it deleted paragraph 45 of the decision of the Fifth Board of Appeal of 19 June 2023 (Case R 1380/2022‑5) and in so far as it amended paragraphs 95 and 98 thereof relating to the assessment of conceptual similarity, paragraph 95 thereof relating to the assessment of phonetic similarity and paragraph 107 thereof relating to the level of attention of the relevant public;

2.      Dismisses the action as to the remainder;

3.      Orders EUIPO, in addition to bearing its own costs, to pay those incurred by Pernod Ricard;

4.      Declares that West End Drinks Ltd shall bear its own costs.

Delivered in open court in Luxembourg on 20 November 2024.

*      Language of the case: English.

© European Union
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