1 December 2016 (1)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of the word mark MITOCHRON — Partial rejection of the application for registration — Likelihood of confusion — Regulation (EC) No 207/2009 — Article 8(1)(b))

In Case C‑401/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 July 2016,

Market Watch Franchise & Consulting Inc., established in Freeport (Bahamas), represented by J. Korab, Rechtsanwalt,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Tenth Chamber),

composed of M. Berger, President of the Chamber, A. Borg Barthet and F. Biltgen (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the decision taken, 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,

makes the following

1By its appeal, Market Watch Franchise & Consulting Inc. asks the Court to set aside the judgment of the General Court of the European Union of 13 May 2016, Market Watch v EUIPO — El Corte Inglés (MITOCHRON) (T‑62/15, not published, EU:T:2016:304) (‘the judgment under appeal’), by which that Court dismissed its action for annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 November 2014 (Case R 508/2014-2), relating to opposition proceedings between El Corte Inglés SA and Market Watch Franchise & Consulting.

2In support of its appeal, the appellant puts forward two grounds of appeal, alleging that there were procedural irregularities before the General Court and that the General Court infringed EU law.

The appeal

3Under 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.

4It is appropriate to apply that provision to the present case.

5On 21 October 2016, the Advocate General took the following position:

‘I am of the view that the appeal in the case in question should be dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded and that Market Watch Franchise & Consulting … should be ordered to pay the costs in accordance with Article 137 and Article 184(1) of the Rules of Procedure of the Court for the following reasons:

The first ground of appeal, alleging that there were procedural irregularities before the General Court

3. Furthermore, it is true that the Court has jurisdiction, in an appeal, to verify whether procedural irregularities adversely affecting the appellant’s interests were committed by the General Court (order of 4 September 2014, Metropolis Inmobiliarias y Restauraciones v OHIM, C‑509/13 P, not published, EU:C:2014:2173, paragraph 56). However, it is for the appellant who is relying on such an irregularity to establish that that irregularity adversely affects its interests (order of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraph 34). In the present case, the appellant has failed to establish that the General Court’s rejection of its application to lodge a reply adversely affected its interests.

The second ground of appeal, alleging infringement of EU law

5. First of all, the appellant complains that the General Court did not examine the merits of its arguments and limited itself to stating that the obvious similarities between the marks at issue were sufficient to find that there was a likelihood of confusion. However, in so far as the appellant does not identify either the arguments which the General Court allegedly failed to examine or the elements in relation to which the General Court allegedly limited itself to finding that there were obvious similarities, that complaint must be rejected as manifestly inadmissible (see, to that effect, order of 11 September 2014, Think Schuhwerk v OHIM, C‑521/13 P, EU:C:2014:2222, paragraph 27).

6On the same grounds as those set out by the Advocate General, the appeal must be dismissed.

Costs

7Under Article 137 of the Rules of Procedure of the Court of Justice, which is applicable to the procedure on appeal pursuant to Article 184(1) thereof, 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 before service of the appeal on the defendant and therefore before the latter has been able to incur costs, Market Watch Franchise & Consulting must be ordered to bear its own costs.

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

Luxembourg, 1 December 2016.

Registrar

President of the Tenth Chamber

* Language of the case: English.