20 June 2017 (* )

(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 RESPIMER — Likelihood of confusion — Rejection of the application for registration)

In Case C‑662/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 December 2016,

Laboratoire de la mer SASU, established in Saint-Malo (France), represented by J. Blanchard, avocat,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Sixth Chamber),

composed of E. Regan, President of the Chamber, J.-C. Bonichot and S. Rodin (Rapporteur), Judges,

Advocate General: J. Kokott,

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

1By its appeal, Laboratoire de la mer SASU seeks to have set aside the order of the General Court of the European Union of 18 October 2016, Laboratoire de la mer v EUIPO — Boehringer Ingelheim Pharma (RESPIMER) (T‑109/16, not published, ‘the order under appeal’, EU:T:2016:627), by which that court dismissed its application for annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 January 2016 (Case R 3109/2014-5) relating to opposition proceedings brought by Boehringer Ingelheim Pharma GmbH & Co. KG following the filing of a trade mark application for the sign ‘RESPIMER’.

2Laboratoire de la mer also claims that the Court should refer the case back to the General Court and order EUIPO to pay the costs.

3In support of its appeal, Laboratoire de la mer relies on a single ground of appeal, divided into two parts, 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).

The appeal

4Pursuant to Article 181 of the Rules of Procedure of the Court of Justice, 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 the appeal in whole or in part.

5That provision should be applied in the present case.

6On 15 May 2017, the Advocate General took the following position:

‘1. I propose that the appeal in this case be dismissed as in part manifestly inadmissible and in part manifestly unfounded and Laboratoire de la mer be ordered to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure, for the following reasons.

The definition of the relevant public and its consequences

The assessment of the signs at issue and the conclusion to be drawn from the conceptual differences between those signs

11. It follows from the foregoing considerations that the present appeal must be dismissed in its entirety as in part manifestly inadmissible and in part manifestly unfounded.’

7On the same grounds as those adopted by the Advocate General, the appeal must be dismissed as in part manifestly inadmissible and in part manifestly unfounded.

Costs

8Under 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. Since the present order has been adopted before the appeal has been served on the defendant and, therefore, before the latter could have incurred costs, Laboratoire de la mer must be ordered to bear its own costs.

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

Luxembourg, 20 June 2017.

Registrar

President of the Sixth Chamber

ECLI:EU:C:2017:440

Language of the case: English.