2 October 2019 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Opposition proceedings — Application for registration of the figurative mark containing the word element Djili — Earlier national word mark containing the word element GILLY — Relative ground for refusal)

In Case C‑293/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 10 April 2019,

Et Djili Soy Dzhihangir Ibryam, established in Dulovo (Bulgaria), represented by C.-R. Romiţan, lawyer,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO), represented by D. Botis, acting as Agent,

defendant at first instance,

THE COURT (Eighth Chamber),

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

Advocate General: E. Sharpston,

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 Court’s Rules of Procedure,

makes the following

1.1 By its appeal, Et Djili Soy Dzhihangir Ibryam seeks to have set aside the judgment of the General Court of the European Union of 12 February 2019, Et Djili Soy Dzhihangir Ibryam v EUIPO — Lupu (Djili) (T‑231/18, not published, ‘the judgment under appeal’, EU:T:2019:82), by which the General Court dismissed its action for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 January 2018 (Case R 1902/2017-5), relating to opposition proceedings between Mr Victor Lupu and Et Djili Soy Dzhihangir Ibryam (‘the contested decision’).

2.2 In support of its appeal, the appellant relies on a single ground of appeal alleging, in essence, 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 By its appeal, the appellant also requested, pursuant to Article 55 of the Rules of Procedure of the Court of Justice, that the proceedings in this case be stayed until a final decision has been delivered by the Romanian courts on the validity of the national mark registered by Mr Lupu.

4.4 On 13 May 2019, EUIPO lodged its observations on that request for a stay of proceedings.

The appeal

5.5 Pursuant to Article 181 of the 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.

6.6 That provision must be applied in the present case and, consequently, the appellant’s request for a stay of proceedings rejected.

7.7 On 23 July 2019, the Advocate General took the following position:

‘1. On 1 June 2016, the appellant filed an application for the registration of the figurative sign as an EU trade mark (“the mark at issue”) with EUIPO pursuant to Regulation No 207/2009, as amended, which was repealed and replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017, on the European Union trade mark (OJ 2017 L 154, p. 1), in respect of goods and services referred to, inter alia, in Class 29 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.

4. By its appeal, the appellant requests that the Court set aside the judgment under appeal and order Mr Lupu to pay the costs.

5. The appeal is based, in essence, on a single ground of appeal alleging infringement of Article 8(1)(b) of Regulation 2017/1001; that ground of appeal is divided into three parts.

6. By the first part of that single ground of appeal, the appellant challenges, in essence, the findings of the General Court concerning the visual comparison of the marks at issue. Thus, the appellant submits, inter alia, that, for the purposes of such a visual comparison, it is necessary to carry out a comparison between the whole signs, taking into account their visual appearance and stylisation. The appellant further submits that the first letters of the signs at issue differ and that the contour and shape of the letters of the signs at issue are very different.

7. In my opinion, that argument is, in any event, manifestly inadmissible.

10. In the present case, it therefore appears that the appellant is seeking a reappraisal of the facts, without however claiming and, a fortiori, establishing that they have been distorted.

11. In my opinion, that argument is therefore manifestly inadmissible.

12. Furthermore, in so far as the appellant submits that the visual appearance and stylisation of the signs are relevant for the purpose of the visual comparison of the signs, the appellant’s argument is also manifestly unfounded.

13. Notwithstanding the fact that the General Court pointed out, in paragraph 30 of the judgment under appeal, that, since the earlier mark is a word mark, the visual appearance and stylisation of the sign applied for are irrelevant for the purpose of the visual comparison of the signs at issue (see, to that effect, judgment of 13 February 2007, Ontex v OHIM — Curon Medical (CURON), T‑353/04, not published, EU:T:2007:47, paragraph 74 and the case-law cited), it cannot be disputed that the General Court, in paragraphs 29 and 31 of its judgment, carried out a visual comparison of the word elements of the signs at issue and found that there was only a low degree of visual similarity between those signs.

14. That argument is therefore manifestly unfounded.

15. By the second part of the single ground of appeal relied on in support of its appeal, the appellant submits that the General Court’s conclusion regarding the phonetic comparison of the signs at issue is incorrect and that the General Court ignored all the appellant’s allegations in that regard.

16. The appellant thus submits that the reference to the pronunciation of the words “djinn” and “gimnastic” is not relevant for the purpose of the phonetic comparison of the signs at issue. It also maintains that the respective pronunciation of the words “djili” and “gilly” in Romanian differs in that, in its opinion, the combination of the letters “g” and “i” is pronounced as [gi] and not as [ʤi].

17. As is the case for the visual similarity, the assessment of the phonetic similarity between the signs at issue is a question of a factual nature (judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraphs 50 and 51). That question cannot be the subject of an appeal, save where the facts are distorted by the General Court, which is neither claimed nor established in the present case.

21. Lastly, as regards the third part of that ground of appeal, the appellant claims that the General Court erred in its global assessment of the likelihood of confusion between the marks at issue by failing to take into account all relevant factors in that regard. In particular, according to the appellant, the General Court failed to analyse the conduct of the opponent, Mr Lupu, who has been guilty of harmfully taking advantage of the appellant.

22. That argument appears to me both manifestly inadmissible and manifestly unfounded.

23. In so far as the appellant seeks, in essence, a reappraisal of the facts and the factors that the General Court considered to be relevant, it is sufficient to note that such a reappraisal does not constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 49 and the case-law cited).

24. Since the appellant neither claims nor establishes any distortion of the facts, its argument is clearly inadmissible for the reasons set out above.

25. Lastly, that argument is also manifestly unfounded, since, contrary to what is claimed by the appellant, the General Court took into consideration the appellant’s allegations relating to the strategy implemented by Mr Lupu intended to take advantage of the appellant. The General Court specified, in paragraphs 15 to 19, 47 and 49 of the judgment under appeal, the reasons why the argument based on Mr Lupu’s conduct could not succeed in opposition proceedings based on Regulation 2017/1001.

26. Therefore, in the light of the foregoing considerations, I propose that the Court of Justice dismiss the appeal pursuant to Article 181 of the Rules of Procedure on the ground that it is, in part, manifestly inadmissible and, in part, manifestly unfounded.’

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

Costs

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. Under Article 138(1) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

10In the present case, since the present order has been made before the appeal was served on the defendant and therefore before the defendant could have incurred costs other than those relating to the request for a stay of proceedings lodged by the appellant, and, in any event, since EUIPO has not applied for costs against the appellant, Et Djili Soy Dzhihangir Ibryam shall bear solely its own costs.

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

1.The appeal is dismissed as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

2.Et Djili Soy Dzhihangir Ibryam shall bear its own costs.

Luxembourg, 2 October 2019.

Registrar

President of the Eighth Chamber

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Language of the case: English.