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Valentina R., lawyer
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
1.1 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’).
2.2 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).
3.3 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.
4.4 That provision must be applied in the present case.
5.5 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.
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).
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.
6.6 For the same reasons as those given by the Advocate General, the appeal must be dismissed as being manifestly inadmissible.
7.7 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:
Luxembourg, 19 March 2019.
Registrar
President of the Seventh Chamber
(*) Language of the case: English.