2 July 2019 (*1)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of the figurative mark including the word element ‘sevenoak’ — Earlier international figurative mark 7SEVEN — Regulation (EC) No 207/2009 — Article 8(1)(b))

In Case C‑31/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 January 2019,

Seven SpA, established in Leinì (Italy), represented by L. Trevisan, avvocato,

appellant,

the other parties to the proceedings being:

Shenzhen Jiayz Photo Industrial Ltd, established in Shenzhen (China),

applicant at first instance,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Seventh Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda and A. Kumin (Rapporteur), Judges,

Advocate General: E. Tanchev,

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, Seven SpA seeks to have set aside the judgment of the General Court of the European Union of 21 November 2018, Shenzhen Jiayz Photo Industrial v EUIPO — Seven (SEVENOAK) (T‑339/17, not published, ‘the judgment under appeal’, EU:T:2018:815), by which the General Court annulled the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 March 2017 (Case R 1326/2016-1) relating to opposition proceedings between Seven and Shenzhen Jiayz Photo Industrial Ltd.

2In support of its appeal, the appellant relies on a single ground of appeal, 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

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 30 April 2019, the Advocate General took the following position:

‘1. For the reasons stated hereinafter, I propose that the Court should dismiss the appeal in the present case as being manifestly inadmissible and, in any event, manifestly unfounded, and order the appellant to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure of the Court.

The first part of the single plea in law, alleging incorrect assessment of the dominant elements of the earlier mark

In those circumstances, the first part of the single plea in law must be rejected as manifestly inadmissible and, in any event, manifestly unfounded.

The second part of the single plea in law, alleging incorrect assessment of the similarity of the marks at issue

21. The appellant’s third complaint alleges a contradiction in the grounds of the judgment under appeal. It argues, in substance, that the findings of the General Court, in paragraphs 83 and 87 of the judgment under appeal, regarding the conceptual and phonetic similarity of the marks at issue confirm that the dominant element in both signs is “seven”, contrary to what the General Court held in paragraphs 62 and 63 of that judgment.

22. The third complaint is actually designed to challenge once again the assessment of the similarity of the marks at issue which falls within the sovereign appraisal of the facts by the General Court, which, save where the facts or evidence are distorted by the latter, is not subject to review by the Court of Justice on appeal, as is apparent from the case‑law of the Court of Justice referred to in points 4 and 19 of this position. Since no such distortion has been alleged in support of the third complaint, that complaint must be rejected as manifestly inadmissible.

23. In the fourth complaint, the appellant criticises the judgment under appeal in so far as, in paragraphs 92 to 96 thereof, in the context of its assessment of the similarity of the marks at issue, the General Court attributed more weight to the visual aspect on account of the conditions under which the goods concerned are marketed. In that regard, the appellant submits that the General Court failed to observe the principle set out in paragraph 104 of the judgment of 12 January 2006, Devinlec v OHIM — TIME ART (QUANTUM) (T‑147/03, EU:T:2006:10) that the likelihood of confusion cannot depend on the commercial intentions, whether carried out or not, and naturally subjective, of the trade mark proprietors.

24. It should be noted that, in paragraphs 95 and 101 of the judgment under appeal, the General Court held that, in so far as the visual aspect played a greater role in assessing the similarity of the marks at issue, the differences in the respective visual perception of the marks outweighed the similarities which had been found at the phonetic and conceptual levels, so that the relevant public would not have had the impression that the marks were similar.

25. Such an analysis by the General Court constitutes an assessment of a factual nature (see, by analogy, order of 13 November 2008, Cabrera Sánchez v OHIM and Industrias Cárnicas Valle, C‑81/08 P, not published, EU:C:2008:626, paragraph 27). It is, therefore, a matter for the sovereign appraisal of the General Court and, as such, is not subject to review by the Court of Justice, save where facts or evidence are distorted by the General Court, as is clear from the settled case-law of the Court of Justice previously mentioned in points 4 and 19 of the present position. No such distortion has been claimed by the appellant in support of the fourth complaint. It follows that the fourth complaint is manifestly inadmissible.

26. In any event, the fourth complaint is based on a misreading of the judgment under appeal and, as such, is manifestly unfounded.

27. In paragraphs 92, 93 and 95 of the judgment under appeal, the General Court held that the goods covered by the signs at issue were in fact available over the counter in specialised shops, in supermarkets and on the internet, and that when making the purchase, customers could be assisted by qualified sales personnel. The General Court further held that even if the purchase of the goods concerned could take place on the basis of an oral recommendation or following oral advice, the visual perception of the marks at issue would generally occur prior to purchase, and therefore, in the present case, the visual aspect played a more important role in assessing the similarity of the marks at issue.

28. It follows from this analysis that, for the overall assessment of the similarity between the marks at issue, the General Court took into account the objective conditions under which those marks may appear on the market and not the commercial intentions of the trade mark proprietors (see judgments of 12 January 2006, Devinlec v OHIM — TIME ART (QUANTUM), T‑147/03, EU:T:2006:10, paragraphs 104 to 106, and of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraphs 55 to 59).

29. In the light of the foregoing, the second part of the single plea in law must be rejected as manifestly inadmissible and, in any event, manifestly unfounded.

The third part of the single plea in law, alleging incorrect assessment of the likelihood of confusion between the marks at issue

30. In the third part of the single plea in law, the appellant alleges that the General Court wrongly concluded, in paragraph 103 of the judgment under appeal, that there was no likelihood of confusion between the marks at issue. The appellant claims that, by ruling out the similarity of the marks, the General Court erred in applying several principles drawn from the case-law. According to the appellant, the relevant public, even if it has a high level of attention, may believe that the mark applied for is a variant of the earlier mark. The appellant also submits that, in paragraph 105 of the judgment under appeal, the General Court wrongly applied the principle of interdependence of relevant factors in the context of the assessment of the existence of confusion, by taking account of only one factor based on the degree of attention of the relevant public, without considering the other relevant elements and that, under settled case-law, even a low degree of similarity between the signs, which in this case is at a higher degree, can be offset by the identity of the goods in question.

32. It also suffices to point out that, in paragraphs 100 to 102 of the judgment under appeal, the General Court rightly held that, on the basis of the Court’s case-law, since the marks at issue did not have a minimum degree of similarity, the principle of interdependence did not apply in the present case. Moreover, in so far as, in the context of this part of the single plea, the appellant complains that the General Court infringed the same case-law principles as those referred to in the second part of the single plea in law, it must be considered that, in the light of the analysis presented in that second part in points 15 to 29 of this position, the General Court has not infringed those principles. It follows that these arguments are, in any event, manifestly unfounded.

33. In those circumstances, the third part of the single plea in law must be rejected as manifestly inadmissible and, in any event, manifestly unfounded.

34. Having regard to the foregoing, I take the view that the appeal in the present case should be dismissed, in accordance with Article 181 of the Rules of Procedure, as being manifestly inadmissible and, in any event, manifestly unfounded, and that the appellant should be ordered to bear its own costs.’

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

Costs

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, 2 July 2019.

Registrar

President of the Seventh Chamber

ECLI:EU:C:2025:140

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* Language of the case: English.