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Order of the Court (Eighth Chamber) of 15 January 2019.#Lion's Head Global Partners LLP v European Union Intellectual Property Office.#Appeal — Article 181 of the Court’s Rules of Procedure — EU trade mark — Opposition proceedings — Word mark Lion’s Head — Application for international registration designating the European Union — Rejection in part of the application for registration — Dismissal of the appeal.#Case C-553/18 P.

ECLI:EU:C:2019:21

62018CO0553

January 15, 2019
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Valentina R., lawyer

15 January 2019 (*1)

(Appeal — Article 181 of the Court’s Rules of Procedure — EU trade mark — Opposition proceedings — Word mark Lion’s Head — Application for international registration designating the European Union — Rejection in part of the application for registration — Dismissal of the appeal)

In Case C‑553/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 August 2018,

Lion’s Head Global Partners LLP, established in London (United Kingdom), represented by R. Nöske, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Lion Capital LLP, established in London (United Kingdom),

intervener at first instance,

THE COURT (Eighth Chamber),

composed of F. Biltgen, President of the Chamber, C.G. Fernlund and L.S. Rossi (Rapporteur), Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Court’s Rules of Procedure,

makes the following

1By its appeal, Lion’s Head Global Partners LLP seeks to have set aside the judgment of the General Court of the European Union of 14 June 2018, Lion’s Head Global Partners v EUIPO — Lion Capital (Lion’s Head) (T‑294/17, not published, EU:T:2018:345; ‘the judgment under appeal’), by which it dismissed Lion’s Head Global Partners’ action against the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 28 February 2017 (Case R 1478/2016-4) relating to opposition proceedings between Lion Capital and Lion’s Head Global Partners, by which the Board of Appeal held that there was a likelihood of confusion, within the meaning 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), inter alia as a result of, first, the essentially high degree of similarity between the earlier EU word mark LION CAPITAL, registered on 16 March 2006 by Lion Capital, and the EU word mark Lion’s Head, the registration of which was notified to EUIPO by Lion’s Head Global Partners on 9 April 2009 (‘the mark applied for’) and, second, the identity of the services covered by those marks.

2In support of its appeal, the appellant raises a single ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

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.

4That provision must be applied in the present case.

5On 19 November 2018, the Advocate General took the following position:

‘1. I propose that the Court should dismiss the appeal in the present case as being, in part, manifestly inadmissible and, in part, manifestly unfounded, in accordance with Article 181 of the Court’s Rules of Procedure, and order the appellant to bear its own costs, for the following reasons.

4. More specifically, by disputing the view of the General Court as regards the existence of visual, phonetic and conceptual similarities between the marks at issue, the appellant merely calls into question the factual assessment made by the General Court, which is not subject to review by the Court of Justice (see, by analogy, order of 16 February 2017, Monster Energy v EUIPO, C‑501/16 P, not published, EU:C:2017:140, paragraphs 5 and 6).

6. Since the appellant has not alleged distortion of the facts under the first part of the single ground of appeal, that part is manifestly inadmissible.

7. By the second part of the single ground of appeal, the appellant criticises the General Court for not having taken sufficient account of its argument that the mark applied for should be considered as a whole, as a single, overall term. The appellant states that that argument relates to the fact that the General Court failed to clarify that none of the elements of the mark is dominant, that they are therefore equivalent and that those elements, taken together, form one whole term.

10. In the light of those clarifications, it must be held that the criticism of the judgment under appeal, alleging failure to observe the obligation to state reasons, is unfounded, since the judgment under appeal sets out in detail the General Court’s reasons for finding that there is a similarity between the marks at issue, particularly because, visually, a certain degree of similarity is caused by the identity of the first part of those marks in the overall impression created by them.

11. As regards the equivalence of the word elements of the mark applied for “lion’s head”, the General Court — having referred, in paragraph 25 of the judgment under appeal, to the case-law according to which consumers generally pay greater attention to the beginning of a mark than to the end and the word placed at the beginning of the sign is likely to have a greater impact than the rest of the sign — noted, inter alia, in paragraphs 27 to 30 of that judgment, that that case-law states just one of the criteria for assessing the similarity of the marks at issue and, in any event, cannot call into question the principle that the examination of the similarity of particular trade marks must take into account the overall impression created by them.

12. Accordingly, the second part of the single ground of appeal must be dismissed as manifestly unfounded.

13. In the light of the foregoing, I take the view that the single ground of appeal should be rejected and, accordingly, the appeal should be dismissed in its entirety.

14. Therefore, I propose that the Court dismiss the appeal, in accordance with Article 181 of the Court’s Rules of Procedure, as, in part, manifestly inadmissible and, in part, manifestly unfounded, and that the appellant be ordered to bear its own costs.’

6For the same reasons as those given by the Advocate General, the appeal must be dismissed as, in part, manifestly inadmissible and, in part, manifestly unfounded.

Costs

7Pursuant to Article 137 of the Rules of Procedure, 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. Since the present order was adopted before the appeal was served on the other parties to the proceedings and, therefore, before they could have incurred costs, it is appropriate to decide that the appellant is to bear its own costs.

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

Luxembourg, 15 January 2019.

Registrar

President of the Eighth Chamber

*

Language of the case: English.

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