4 June 2019 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Application for registration of the word mark ALDI — Opposition proceedings — Rejection of the opposition — Conditions of representation of the earlier mark — Rule 19 of Regulation (EC) No 2868/95)

In Case C‑822/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 December 2018,

Aldo Supermarkets, established in Varna (Bulgaria), represented by M. Thewes, avocat,

appellant,

the other parties to the proceedings being:

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

Aldi Einkauf GmbH & Co. OHG, established in Essen (Germany),

intervener at first instance,

THE COURT (Sixth Chamber),

composed of C. Toader, President of the Chamber, L. Bay Larsen (Rapporteur) and M. Safjan, Judges,

Advocate General: P. Pikamäe,

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 Rules of Procedure of the Court,

makes the following

1By its appeal Aldo Supermarkets seeks to have set aside the judgment of the General Court of the European Union of 25 October 2018, Aldo Supermarkets v EUIPO — Aldi Einkauf (ALDI) (T‑359/17, not published, ‘the judgment under appeal’, EU:T:2018:720), dismissing its action for annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 March 2017 (Case R 976/2016-4) relating to opposition proceedings between Aldo Supermarkets and Aldi Einkauf GmbH & Co. OHG.

2In support of its appeal, the appellant relies on three grounds alleging misinterpretation of Rule 19(2)(a)(ii) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), a twofold contradiction in the grounds of the judgment under appeal, and a failure to state reasons in that judgment.

The appeal

3Pursuant to Article 181 of the Rules of Procedure of the Court, 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.

4It is appropriate to apply that provision in the present case.

5On 28 March 2019 the Advocate General took the following position:

‘1. For the reasons set out below, I propose that the Court should dismiss the appeal in the present case by an order adopted under Article 181 of the Rules of Procedure, and order the appellant, Aldo Supermarkets, to pay the costs, in accordance with Article 137 and Article 184(1) of those rules.

First ground of appeal: misinterpretation of Rule 19(2)(a)(ii) of Regulation No 2868/95

3. By its first ground of appeal, the appellant alleges that the General Court misinterpreted Rule 19(2)(a)(ii) of Regulation No 2868/95 in so far as it found, in paragraph 40 of the judgment under appeal, that the words “copy of the relevant registration certificate” require the submission of a copy “which is identical in all respects to the original held by the proprietor of the trade mark, so that the copy must be fully faithful to the original and must include the same colours as the original, without modification or alteration”.

7. The first ground of appeal is thus manifestly ineffective.

Second ground of appeal: a twofold contradiction in the grounds of the judgment under appeal

10. This first part of the second ground of appeal is based on a misreading of paragraph 50 of the judgment under appeal.

11. Contrary to the appellant’s premiss, the General Court did not rule, in paragraph 50 of the judgment under appeal, on the adequacy of the evidence adduced by the appellant in connection with the existence, validity and scope of the earlier mark. As is clear from paragraph 49 of the judgment under appeal, the General Court gave a ruling on the Board of Appeal’s margin of discretion as regards the formal requirements relating to that evidence where the evidence does not meet the condition requiring precision and reliability.

12. The first part of the second ground of appeal is therefore clearly unfounded.

13. By the second part of the second ground of appeal, the appellant criticises the General Court for confirming that the Board of Appeal had rightly rejected the opposition brought by the appellant on the basis of Rule 19 of Regulation No 2868/95, in relation to which the appellant was never heard, which thus infringed the principle of audi alteram partem. The appellant claims inter alia that, in the reasoning set out in paragraphs 70 to 73 of the judgment under appeal, the General Court acknowledged that neither the intervener at first instance nor EUIPO had raised any arguments alleging infringement of Rule 19 of Regulation No 2868/95. On the contrary, according to the appellant, the General Court acknowledged, in paragraph 73 of the judgment under appeal that “[the intervener at first instance] referred to Rule 15 [of Regulation No 2868/95] not Rule 19 [of that regulation]” and found, in paragraph 71 of the judgment under appeal, that, “although [the intervener at first instance] referred to Rule 15 of Regulation No 2868/95, it relied, however, specifically on a lack of proof by the appellant of its earlier rights, so that it cannot validly be argued that the Board of Appeal raised that question of its own motion”. According to the appellant, that amounts to manifest contradictory reasoning in the light of the distinction made by the General Court in the judgment under appeal between the two stages of assessment carried out in opposition proceedings, namely the question of the admissibility of the opposition and the examination of its substance.

14. In that regard, it is apparent from paragraphs 73 and 74 of the judgment under appeal that it cannot be validly argued that the Board of Appeal raised of its own motion the lack of proof adduced by the appellant in relation to the existence, validity and scope of the earlier mark. The intervener at first instance had already claimed, prior to the decision of the Opposition Division, that the appellant had not proved the existence of its earlier rights since, for the purposes of establishing the existence of its earlier mark, it had furnished only a black and white copy of that mark. Furthermore, as noted by the General Court in paragraph 74 of the judgment under appeal, in accordance with established case-law, in the examination of the substance of the opposition the Board of Appeal is empowered neither to provide guidance as regards the production of evidence nor to assist an opponent in proving the facts, evidence or arguments which it must produce to demonstrate the existence of its earlier right (judgment of 3 October 2013, Rintisch v OHIM, C‑122/12 P, EU:C:2013:628, paragraph 40).

15. Accordingly, the second part of the second ground of appeal is clearly unfounded.

16. Consequently, the second ground of appeal must be rejected in its entirety as manifestly unfounded.

Third ground of appeal: failure to state reasons in the judgment under appeal

17. By its third ground of appeal, the appellant alleges a failure to state reasons in the judgment under appeal in so far as, in paragraph 79 of that judgment, the General Court held, in one single sentence, that the opposition had to be rejected. The appellant claims to have adduced numerous pieces of evidence demonstrating genuine use of the earlier mark. According to the appellant, those pieces of evidence were neither mentioned by the General Court nor assessed by EUIPO.

21. Accordingly, the appeal must be dismissed in its entirety as manifestly unfounded.’

6As regards the second part of the second ground of appeal, it should be noted that it is apparent from paragraph 71 of the judgment under appeal, first, that the intervener at first instance had already claimed, prior to the decision of the Opposition Division, that the appellant had not proved the existence of its earlier rights since, for the purposes of establishing the existence of its earlier mark, it had furnished only a black and white copy of that mark. Secondly, the intervener at first instance reiterated its claim that the appellant had not proved the existence of its earlier mark in the context of its appeal before the Board of Appeal against the decision of the Opposition Division. As is apparent from point 4 of the Position of the Advocate General, it is Rule 19(2) of Regulation No 2868/95 that requires production, inter alia, of the registration certificate in order to ensure that EUIPO has available to it reliable proof of the existence of the mark on which the opposition is based. Therefore, the General Court was fully entitled to conclude that, although the intervener at first instance referred to Rule 15 of Regulation No 2868/95, it relied, however, specifically on a lack of proof by the appellant of its earlier rights, so that it could not validly be argued that the Board of Appeal raised that question of its own motion (see, by analogy, judgments of 19 November 1998, Parliament v Gaspari, C‑316/97 P, EU:C:1998:558, paragraph 21, and of 28 February 2019, Alfamicro v Commission, C‑14/18 P, EU:C:2019:159, paragraph 41). Thus, the General Court did not infringe the principle of audi alteram partem and the judgment under appeal is not vitiated by contradictory reasoning.

7Accordingly, the second part of the second ground of appeal is, as stated by the Advocate General in point 15 of his Position, manifestly unfounded.

8For the reasons set out in paragraphs 6 and 7 of the present order and those given by the Advocate General in his Position, the appeal must be dismissed as, in part, manifestly ineffective 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. In the present case, since this order was made 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 Aldo Supermarkets is to bear its own costs.

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

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

2.Aldo Supermarkets shall bear its own costs.

Luxembourg, 4 June 2019.

Registrar

President of the Sixth Chamber

*

Language of the case: English.