ORDER OF THE COURT (Eighth Chamber)

26 May 2016

(Appeal — Article 181 of the Rules of Procedure — European Union word mark KARIS — Regulation (EC) No 207/2009 — Article 8(1)(b) — Refusal in part of the application for registration — Appeal manifestly inadmissible)

In Case C‑639/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 December 2015,

Gat Microencapsulation GmbH (formerly Gat Microencapsulation AG), represented by S. Soler Lerma and M. March Cabrelles, abogados,

applicant,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

the other party to the proceedings before the Board of Appeal of EUIPO being:

BASF SE, established in Ludwigshafen (Germany),

THE COURT (Eighth Chamber),

composed of D. Šváby, President of the Chamber, J. Malenovský (Rapporteur) and M. Safjan, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action 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, Gat Microencapsulation GmbH (formerly Gat Microencapsulation AG; ‘Gat’) seeks the annulment of the judgment of the General Court of the European Union of 30 September 2015 in Gat Microencapsulation v OHIM — BASF (KARIS) (T‑720/13, EU:T:2015:735; ‘the judgment under appeal’), by which the General Court dismissed its action seeking the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 October 2013 (Case R 1862/2012-5) concerning an application for registration of the word sign ‘KARIS’ as a European Union trade mark.

2        Gat also requests that the Court order OHIM and the other party to the proceedings before the Fifth Board of Appeal of EUIPO to pay the costs.

 The appeal

3        Under Article 181 of its Rules of Procedure, where an 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, by reasoned order dismiss that appeal in whole or in part.

4        On 14 April 2016, the Advocate General took the following position:

‘I suggest that the appeal in this case be dismissed as manifestly inadmissible and that Gat Microencapsulation be ordered to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure, for the following reasons:

 The first ground of appeal, alleging infringement of Article 17 of the Charter of Fundamental Rights of the European Union, the principles of equal treatment and legal certainty and a failure to state reasons

1.      In its first ground of appeal, the appellant submits that, in the judgment under appeal, the General Court failed to apply the criteria for assessment of the conditions for application 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) developed through the settled EU case-law and that it thus applied different assessment criteria to identical or equivalent facts. In that ground of appeal, the appellant also alleges an infringement of the duty to state reasons.

2.      It must be borne in mind that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or specific ground of appeal will be declared inadmissible. In its first ground of appeal, the appellant merely makes general criticisms of the judgment under appeal without indicating the specific parts thereof which it criticises in particular. It follows that this ground of appeal must be rejected as inadmissible.

3.      It must indeed be noted that, in the first part of its second ground of appeal, the appellant complains that the General Court erred in law by making, in paragraphs 40 to 42, 45, 51, 54, 56, 58, 61 to 63, 65, 67, 68, 76, 79 and 80 of the judgment under appeal, to assess the similarity of the goods at issue, intended for use in plant care, an allegedly different examination from that made in the field of medicinal products. However, even if that line of argument is, in reality, intended to support the first ground of appeal, it must be rejected for the reasons set out in point 8 below.

 The second ground of appeal, alleging an error of assessment resulting from the incorrect application and interpretation of Article 8(1)(b) of Regulation No 207/2009

 First part of the second ground of appeal

4.      In the first part of its second ground of appeal, the appellant argues that, in paragraphs 40 to 42, 45, 51, 54, 56, 58, 61 to 63, 65, 67, 68, 76, 79 and 80 of the judgment under appeal, the General Court failed correctly to assess the similarity of the goods at issue and the relationship between them and that it failed to carry out a satisfactory examination of their purpose and whether they were in competition or complementary. Notwithstanding the different purpose of the goods at issue, the General Court found that they are similar purely because of their membership of the same general category of goods, namely goods for plant care. In so doing, the General Court disregarded the established case-law of the EU Courts, illustrated by recent judgments, in particular in the field of medicinal products, in accordance with which membership of the same category gives rise only to a slight degree of similarity, while the therapeutic indication is of decisive importance.

5.      It must be noted that, by that line of argument, the appellant complains that the General Court made an error of factual assessment by concluding, in particular in paragraph 65 of the judgment under appeal, that, in the present case, the fact that specific purposes of goods may differ (one being, in the present case, intended to combat fungus, while the other is intended to combat vermin) did not affect other relevant elements of similarity of these goods, in particular the fact that they pursue the same phytosanitary purpose of plant care.

6.      In that regard, it must be borne in mind that, in accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, except when the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court in an appeal. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence.

7.      The findings made by the General Court in the examination of the likelihood of confusion and the similarities between the goods covered by the marks at issue are particular examples of factual assessments not covered by the review by the Court of Justice on appeal.

8.      In the present case, it must be held that the line of argument advanced by the appellant in the first part of its second ground of appeal merely disputes the assessment of the facts made by the General Court without alleging any distortion of the elements of the file submitted to that Court. It follows that that line of argument must be rejected as manifestly inadmissible.

 The other parts of the second ground of appeal

9.      In the second to fifth parts of its second ground of appeal, the appellant attempts to challenge the factual assessments made by the General Court as regards the definition of the relevant public (paragraphs 31 and 115 of the judgment under appeal), the similarity of the goods (paragraphs 38 to 81 of the judgment under appeal), the comparison of the signs (paragraphs 83 to 100 of the judgment under appeal) and the likelihood of confusion (paragraphs 110 to 117 of the judgment under appeal) between the goods at issue.

10.      The view must be taken that, once again, that line of argument merely disputes the assessment of the facts made by the General Court without alleging any distortion of the elements of the file submitted to it. Accordingly, in accordance with the principles recalled in paragraphs 6 and 7 above, that argument must also be rejected as manifestly inadmissible.

11.      In addition, even if the appellant’s arguments claiming an alleged lack of explanations for the reasons behind the General Court’s conclusion that the goods at issue were similar, put forward in the third part of the second ground of appeal, must be understood as seeking to complain that the General Court failed to fulfil its duty to state reasons, such an argument would have to be rejected as being manifestly unfounded. It is clear that the General Court gave ample reasons for its finding as to the similarity of the goods at issue in paragraphs 38 to 81 of the judgment under appeal.

It follows from all the foregoing that the present appeal must be dismissed in its entirety as manifestly inadmissible.’

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

 Costs

6        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 this order has been adopted prior to notification of the appeal to the defendant at first instance and, therefore, before the latter has incurred costs, it is appropriate to decide that the appellant must bear its own costs.

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

1.      The appeal is dismissed.

2.      Gat Microencapsulation GmbH (formerly Gat Microencapsulation AG) shall bear its own costs.

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