Provisional text

16 February 2017 (*1)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Opposition proceedings — Application for registration of a figurative sign including the word elements ‘MAD CATZ’ — Rejection of the opposition)

In Case C‑501/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 September 2016,

Monster Energy Company, established in Corona (United States), represented by P. Brownlow, Solicitor,

appellant,

the other party to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Ninth Chamber),

composed of E. Juhász, President of the Chamber, C. Vajda (Rapporteur) and K. Jürimäe, Judges,

Advocate General: M. Bobek,

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, Monster Energy Company asks the Court to set aside the judgment of the General Court of the European Union of 14 July 2016, Monster Energy v EUIPO — Mad Catz Interactive (MAD CATZ) (T‑429/15, not published, ‘the judgment under appeal’, EU:T:2016:409), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 May 2015 (Case R 2176/2014-4) relating to opposition proceedings between Monster Energy and Mad Catz Interactive.

2The appellant puts forward two grounds in support of its appeal, alleging infringement of provisions 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 should be applied in the present case.

5On 18 January 2017, the Advocate General took the following position:

‘1. I propose that the Court should dismiss the appeal in the present case as being manifestly inadmissible, for the following reasons:

– by having failed to take account of the case-law according to which it cannot be ruled out that conceptual similarity may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public,

– by not having, in the global assessment of the similarity of the trade marks, given more weight to both the conceptual and the visual similarity between the signs at issue, and

– by having incorrectly assessed the average consumer’s conceptual perception of the signs at issue.

3. First of all, in so far as the appellant submits that the General Court failed to take account of the case-law according to which it cannot be ruled out that conceptual similarity may give rise to a likelihood of confusion where the earlier mark has a particularly distinctive character, either per se or because of the reputation it enjoys with the public (judgment of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24), it is apparent from the application before the General Court that, although the appellant, as in the application under examination, invoked an enhanced distinctiveness of the earlier marks, it relied in that regard only on their alleged substantial reputation. By contrast, in the application under examination, the appellant relies this time solely on the intrinsic characteristics (distinctiveness per se) of those marks to demonstrate such distinctive character. Therefore, the appellant makes a new argument.

4. According to settled case-law of the Court of Justice, in an appeal the jurisdiction of the Court is confined to review of the findings of law on the pleas argued before the General Court (see, to that effect, judgment of 19 May 2011, Union Investment Privatfonds v OHIM, C‑308/10 P, not published, EU:C:2011:327, paragraphs 30 and 31, and order of the President of the Court of Justice of 12 June 2014, Bimbo v OHIM, C‑285/13 P, not published, EU:C:2014:1751, paragraphs 16 to 18). Consequently, this part of the first ground of appeal must be rejected as being manifestly inadmissible.

The second ground of appeal, alleging infringement of Article 8(1)(b) of Regulation No 207/2009

9. As has been recalled in the analysis of the first ground of appeal, the appraisal of the facts and the assessment of the evidence do not, save where the facts or evidence are distorted, constitute points of law subject, as such, to review by the Court of Justice. The Court has also held that the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case. Accordingly, the assessment of those factors is a question of fact which is not subject to review by the Court on appeal.

10. In the present instance, the appellant relies neither on any distortion of the facts by the General Court nor on a failure to take account of all factors relevant for assessing the likelihood of confusion. It seeks, in fact, to call into question the assessments of the General Court relating to the absence of a likelihood of confusion between the signs at issue.

11. Consequently, the second ground of appeal must be rejected as being manifestly inadmissible.

In the light of the foregoing, I therefore propose that the Court of Justice should dismiss the appeal.’

6On the same grounds as those stated by the Advocate General, the appeal must be dismissed.

Costs

7Under 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 is adopted before the appeal has been served on the defendant and therefore before the latter could have incurred costs, Monster Energy must be ordered to bear its own costs.

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

Luxembourg, 16 February 2017.

Registrar

President of the Ninth Chamber

ECLI:EU:C:2025:140

* Language of the case: English.