C-87/16

ORDER OF THE COURT (Tenth Chamber) 21 July 2016(*) (Appeal — Article 181 of the Rules of Procedure of the Court of Justice — Community word mark — Word mark KENZO ESTATE — Earlier Community word mark KENZO — Relative ground for refusal — Reputation — Regulation (EC) No 207/2009 — Article 8(5) — Partial rejection of the opposition) In Case C‑87/16 P, APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 February 2016, Kenzo Tsujimoto, residing in Osaka (Japan), represented by A. Wenninger-Lenz, M. Ring and W. von der Osten-Sacken, Rechtsanwälte, appellant, the other parties to the proceedings being: Kenzo, established in Paris (France), applicant at first instance, European Union Intellectual Property Office (EUIPO), defendant at first instance, THE COURT (Tenth Chamber), composed of F. Biltgen, President of the Chamber, A. Borg Barthet (Rapporteur) and M. Berger, Judges, Advocate General: E. Sharpston, Registrar: A. Calot Escobar, having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court, gives the following Order 1        By his appeal, Mr Kenzo Tsujimoto asks the Court to set aside the judgment of the General Court of the European Union of 2 December 2015 in Kenzo v OHIM — Tsujimoto (KENZO ESTATE) (T‑528/13, not published, ‘the judgment under appeal’, EU:T:2015:921), by which the General Court partially annulled the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 July 2013 (Case R 1363/2012-2), relating to opposition proceedings between Kenzo and Mr Tsujimoto. 2        Mr Tsujimoto also asks the Court to give final judgment in the matter. 3        In support of his appeal, Mr Tsujimoto raises a single ground of appeal, alleging infringement of Article 8(5) 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 4        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. 5        On 10 June 2016, the Advocate General took the following position: ‘1     This is an appeal against the judgment of the General Court of 2 December 2015 in Kenzo v OHIM — Tsujimoto (KENZO ESTATE), T‑528/13, EU:T:2015:921 (‘the judgment under appeal’). The General Court there upheld Kenzo’s action for annulment of a decision of 3 July 2013 of the Second Board of Appeal of the European Union Intellectual Property Office (‘EUIPO’) concerning Kenzo’s opposition to Mr Kenzo Tsujimoto’s application for registration of the word sign KENZO ESTATE as a Community trade mark with respect to goods and services in Classes 29, 30, 31, 35, 41 and 43 of the Nice Agreement [concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks], as revised and amended, in so far as that decision rejected the opposition in respect of the registration sought for goods in Classes 29 to 31. That opposition was based on the earlier Community word mark KENZO, registered for certain goods in, inter alia, Classes 3, 18 and 25 (‘the earlier mark’). In support of its opposition, Kenzo relied on the relative ground in Article 8(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) (‘Regulation No 207/2009’). On 24 May 2012, the Opposition Division rejected the opposition. Whilst the Board of Appeal partly upheld Kenzo’s appeal against that decision, it found that goods in Classes 29 to 31 covered by the application for registration are common mass-consumed foodstuffs that are bought in any corner shop and thus have only a peripheral relation with the goods covered by the earlier mark. Consequently, the Board of Appeal found that Kenzo had failed to justify why the registration applied for would, as regards those goods, take unfair advantage of, or be detrimental to, the distinctive character or the reputation of the earlier mark. 2.     Kenzo appealed to the General Court, which annulled that decision of the Second Board of Appeal in so far as it had granted Mr Kenzo Tsujimoto’s application for registration in respect of the goods in Classes 29 to 31. The General Court emphasised in particular that some of the goods in those classes might be among the goods sold as luxury goods under the earlier mark and that there was thus a certain closeness between those goods. The General Court inferred from that closeness and the high degree of similarity between the signs at issue that, contrary to what the Board of Appeal found, there was a risk that Mr Kenzo Tsujimoto might take advantage of the link which exists between the mark applied for and the earlier mark in order to associate his sign with the renown of that earlier mark and take unfair advantage of that mark’s reputation, benefitting from the image of luxury and exclusivity which that mark conveys. Furthermore, the General Court held in essence that, given the link between the marks at issue, registration of the mark applied for in respect of goods in Classes 29 to 31, which are associated more with everyday consumer goods, or even with a bad diet, could damage the image of exclusivity, luxury and high quality associated with the earlier mark and therefore be detrimental to the distinctive character and the reputation of that mark. 3.     I refer the Court to the judgment under appeal for further details. 4.     In his appeal, Mr Kenzo Tsujimoto (‘the Appellant’) asks the Court to annul the judgment under appeal, to give a final ruling on the dispute and to order EUIPO and Kenzo to pay the costs. 5.     The Appellant advances a single ground of appeal. He submits in essence that the General Court erred in its application of Article 8(5) of Regulation No 207/2009 when it concluded, despite the lack of evidence, that the use of the trade mark applied for in connection with goods in Classes 29 to 31 covered by the application for registration would take unfair advantage of, and be detrimental to, the distinctive character and the reputation of the earlier mark for cosmetics, perfumery and clothes. Contrary to the conclusion reached in the judgment under appeal, all the goods covered by the application for registration are daily consumption goods which are very different in nature from the luxury goods covered by the earlier mark. They also serve different purposes and are directed at different categories of consumers. The differences between the goods covered by the registration applied for and those covered by the earlier mark are therefore such that there is no risk that the relevant section of the public will establish a link between the signs in conflict. 6.     In my opinion, the single ground of appeal in reality asks the Court to revisit the factual findings and assessment of evidence made by the General Court regarding the nature of the goods concerned by the signs in conflict, how the relevant sections of the public perceive those goods and the link which the public may make between those signs (see, by analogy, orders of 14 May 2013 in You-Q v OHIM, C‑294/12 P, EU:C:2013:300, paragraph 61 and 62, and of 17 September 2015 in Arnoldo Mondadori Editore v OHIM, C‑548/14 P, EU:C:2015:624, paragraphs 67 and 68). 7.     However, it follows from Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal to the Court lies on a point 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 do not, save where facts or evidence are distorted, constitute a point of law subject, as such, to review by the Court of Justice on appeal. 8.     The Appellant has not demonstrated or even alleged that the General Court distorted the facts or evidence. 9.     I therefore conclude that the single ground of appeal is manifestly inadmissible and recommend that the Court should dismiss the appeal under Article 181 of the Rules of Procedure. 10.   Under Article 137 of the Rules of Procedure, which applies to appeals by virtue of Article 184(1) thereof, the order terminating a case should also rule on the costs. The present appeal has not been notified to the defendant and the latter has not therefore incurred costs in connection with the appeal. The Appellant should bear his own costs.’ 6        For the same reasons as those given by the Advocate General, it is necessary to dismiss the appeal as manifestly inadmissible.  Costs 7        Under Article 137 of the Court’s 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 was adopted before the appeal was served on the other parties and therefore before they could have incurred costs, Mr Tsujimoto must be ordered to bear his own costs. On those grounds, the Court (Tenth Chamber) hereby orders: 1.      The appeal is dismissed. 2.      Mr Kenzo Tsujimoto is ordered to bear his own costs. [Signatures] *Language of the case: English.