CJEU Order C-468/13 MOL 17 Jul 2014

ORDER OF THE COURT (Sixth Chamber)

17 July 2014 (*)

(Appeal — Community trade mark– Regulation (EC) No 207/2009 — Article 8(1)(b) — Word mark MOL Blue Card — Opposition — Refusal to register)

In Case C-468/13 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 August 2013,

MOL Magyar Olaj- és Gázipari Nyrt., established in Budapest (Hungary), represented by K. Szamosi, avocat,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs), represented by G. Schneider, acting as Agent,

defendant at first instance,

Banco Bilbao Vizcaya Argentaria SA, established in Bilbao (Spain), represented by J. de Oliveira Vaz Miranda de Sousa and N. González-Alberto Rodríguez, abogados,

intervener at first instance,

THE COURT (Sixth Chamber),

composed of A. Borg Barthet, President of the Chamber, S. Rodin and F. Biltgen (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,

makes the following

Order

1 By its appeal, MOL Magyar Olaj- és Gázipari Nyrt. (‘MOL’) seeks to have set aside the judgment of the General Court of the European Union in MOL v OHIM — Banco Bilbao Vizcaya Argentaria (MOL Blue Card), T-367/12, EU:T:2013:336 (‘the judgment under appeal’), dismissing its action for annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 30 May 2012 in Case R 2532/2011-2 (‘the contested decision’), concerning opposition proceedings between MOL and Banco Bilbao Vizcaya Argentaria SA (‘Banco Bilbao’).

Legal context

2 Under the heading ‘Relative grounds for refusal’, Article 8(1) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) provides:

‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b) if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.

…’

3 Article 65(1) and (2) of Regulation No 207/2009 provides:

‘(1) Actions may be brought before the Court of Justice against decisions of the Boards of Appeal on appeals.

(2) The action may be brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the [TFEU], of this Regulation or of any rule of law relating to their application or misuse of power.’

Background to the dispute

4 On 7 October 2009, MOL filed an application for registration of a Community trade mark at OHIM.

5 The mark in respect of which registration was sought is the word mark MOL Blue Card (‘the mark at issue’).

6 The services in respect of which registration of that mark was sought are in Classes 35 and 36 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 (‘the Nice Agreement’), and correspond, for each of those classes, to the following description:

– Class 35: ‘Purchase and transaction management; management services and evaluations; accounting and statement of accounts’;

– Class 36: ‘Services regarding credit cards, debit cards, charge cards, personal identification cards, purchase authorisation cards, discount cards and cash cards; credit facilities for the purchase of goods, all matters regarding the payment for vehicle fuels and related services; services regarding the electronic transfer of funds and the dispensing of cash; services regarding the issuing of statements of account and analysis of all the aforesaid services; processing of payments, hire purchase; financial clearing services’.

7 The Community trade mark application was published in Community Trade Marks Bulletin No 49/2010 of 15 March 2010.

8 On 24 June 2010, Banco Bilbao filed a notice of opposition against registration of the mark at issue.

9 The opposition was based on the likelihood of confusion with the Community trade marks BLUE, registered on 8 March 2010 under number 8549172, BLUE BBVA, registered on 20 December 2004 under number 2065621 and TARJETA BLUE BBVA, registered on 18 January 2005 under number 2277291.

10 The ground relied on in support of the opposition alleged infringement of Article 8(1)(b) of Regulation No 207/2009.

11 On 14 October 2011, the Opposition Division of OHIM rejected the opposition brought before it by Banco Bilbao.

12 On 7 December 2011, Banco Bilbao filed an appeal before OHIM against the Opposition Division’s decision dismissing the opposition.

13 By the contested decision, the Second Board of Appeal of OHIM upheld that appeal and rejected the application for registration in respect of all the services included in Classes 35 and 36 of the Nice Agreement.

The procedure before the General Court and the judgment under appeal

14 By application lodged at the Registry of the General Court on 10 August 2012, MOL brought an action for annulment of the contested decision. In support of that action, MOL raised a single plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

15 By the judgment under appeal, the General Court dismissed that action as unfounded.

16 First of all, in paragraphs 19 and 20 of the judgment under appeal, since it considered that it was not its task to search in the annexes for the arguments which could be referred to by MOL, the General Court held the global reference made by MOL to the arguments it had presented before OHIM to be inadmissible. The General Court also held, in paragraph 23 of that judgment, that the evidence annexed to the application, namely, printouts of websites of various banking and credit establishments indicating different types of credit and debit cards on offer, a printout of a website including a presentation of MOL and a list of its international trade marks, was inadmissible in so far as it was presented for the first time before it.

17 After holding, in the present case, that the relevant public in relation to which the likelihood of confusion must be assessed is the specialist and the general public and that the relevant territory is the whole European Union, the General Court examined the similarity of the services and marks at issue. In that regard, it noted, in paragraph 35 of the judgment under appeal, that, where the services covered by the earlier trade mark include the services referred to in the application for a trade mark, they are considered to be identical. Therefore, the General Court rejected MOL’s argument that the services in Class 36 of the Nice Agreement designated by the earlier marks are not identical to the specialised services in Class 36 of the mark at issue, and concluded therefrom that the Board of Appeal correctly held the services at issue to be identical.

18 With regard to the comparison of the signs, the General Court noted, in paragraph 41 of the judgment under appeal, that, in the present case, one of the earlier marks is made up of the word ‘blue’ while the two others combine that word with one or two other words, respectively ‘BBVA’ and ‘TARJETA BBVA’ and that the mark at issue is made up, for its part, of the three words ‘MOL Blue Card’. The General Court examined, in paragraphs 42 and 43 of that judgment, those marks visually, phonetically and conceptually and held, in paragraph 44 of that judgment, that the Board of Appeal had duly taken into account their specific features so as to hold that they were visually similar in so far as they contained the word ‘blue’, phonetically similar to a very slight degree and conceptually similar to a certain extent, in particular in so far as the English expression ‘blue card’ could be perceived as having a meaning identical to ‘tarjeta blue’ by the Spanish-speaking section of the relevant public.

19 The General Court rejected, in paragraphs 46 to 48 of the judgment under appeal, the argument of MOL that the elements ‘blue’ and ‘card’ have a low degree of distinctiveness and the element ‘mol’ dominates the mark at issue. According to the General Court, none of the marks at issue includes dominant visual elements, no evidence of the alleged reputation of the element ‘mol’ was adduced and, even if that element were regarded as having a stronger distinctive character in the mark at issue, it cannot be considered to dominate the overall impression, because it will be perceived by the relevant public as an acronym of the company name of MOL or as a fanciful term. Therefore, the General Court, in paragraph 49 of that judgment, held that, in the light of the element ‘blue’ common to the marks at issue, the Board of Appeal, by taking into consideration the other elements making up the mark at issue, namely ‘mol’ and ‘card’, was justified in deciding that those marks are similar.

20 The General Court noted, in paragraphs 51 to 53 of the judgment under appeal, that it follows from the Court’s settled case-law that the decisions that the Boards of Appeal of OHIM are required to take, pursuant to Regulation No 207/2009, concerning the registration of a sign as a Community trade mark come under the exercise of circumscribed powers so that the lawfulness of those decisions must be assessed solely on the basis of that regulation and not on that of a previous decision-making practice. It deduced therefrom that MOL’s argument that, in an earlier decision, OHIM had held that the word ‘blue’ cannot have distinctive character, could not be accepted. The General Court added, in paragraph 54 of that judgment, that if that argument must be understood as referring to an infringement, by the Board of Appeal, of the principle of equal treatment, it must also be rejected in so far as, in accordance with the principle of respect for legality, a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party in order to obtain an identical decision.

21 Furthermore, the General Court rejected, on the one hand, in paragraph 55 of the judgment under appeal, the argument alleging that the word ‘blue’ is generally used in the banking and finance sector to designate services associated with certain types of debit and credit cards and, on the other, in paragraph 56 of that judgment, the argument that the mark at issue is part of a family of marks consisting of the commercial name ‘MOL’, a colour representing the type of card concerned and the word ‘card’. In any event, the General Court held, in paragraph 58 of that judgment, that the Board of Appeal was correct to hold that the element ‘blue’ retained an independent distinctive role in the mark at issue, without dominating the overall impression thereof. It held, in paragraph 59 of the judgment under appeal, that the Board of Appeal was correct to conclude that the marks at issue were similar.

22 In paragraph 62 of the judgment under appeal, the General Court held that, in the light of the foregoing, the Board of Appeal did not err in holding that the existence of a likelihood of confusion was established in the present case.

Forms of order sought before the Court

23 MOL claims that the Court should annul the judgment under appeal and the contested decision, refer the case back to the General Court for judgment and order OHIM to pay the costs.

24 OHIM and Banco Bilbao contend that the appeal should be dismissed and MOL ordered to pay the costs.

The appeal

25 Under Article 181 of its Rules of Procedure, where the appeal or cross-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 or cross-appeal in whole or in part.

26 It is necessary to apply that provision of the Rules of Procedure in the context of the present appeal, in support of which MOL invokes three grounds which should be examined in turn.

The first ground of appeal

Arguments of the parties

27 The first ground of appeal raised by MOL alleges infringement of Article 44 of the Rules of Procedure of the General Court and of Article 21 of the Statute of the Court of Justice of the European Union in that the General Court wrongly and inappropriately declared inadmissible the arguments referred to by MOL, in a general way, in its application initiating proceedings.

28 MOL claims that the statement, in its application initiating proceedings, that it maintained all the arguments invoked during the proceedings before OHIM constituted a mere technical reference in order to show that it intended to maintain all the arguments put forward previously. It claims moreover that it reiterated those arguments in its application initiating proceedings.

29 OHIM considers that that ground of appeal must be rejected, given that MOL did not invoke any legal arguments in order to contest the lawfulness of the General Court’s finding that the general reference to the arguments raised by it before OHIM is inadmissible.

Findings of the Court

30 It is necessary to point out that the General Court noted, in paragraphs 16 and 17 of the judgment under appeal, that, under Article 44(1) of the Rules of Procedure of the General Court, the application must contain a summary of the arguments invoked and that that information must be sufficiently clear and precise to allow the defendant to prepare its defence and the General Court to rule on the action, as the case may be, without other supporting information. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provision, must appear in the application.

31 In that regard, the General Court held, in paragraph 19 of the judgment under appeal, that MOL failed to identify either the specific points of its application which it wished to supplement by the general reference made by it, in paragraph 7 thereof, to the arguments raised before OHIM or the annexes in which those arguments, if any, were set out. It deduced therefrom, in paragraph 20 of that judgment, that it is not its task to search for or to identify, among the numerous annexes, the elements to which MOL could refer or to examine them, since such arguments are inadmissible.

32 It must be noted that that finding cannot be called into question by MOL’s argument seeking to reclassify the general reference which it made to the arguments invoked before OHIM as being a mere technical reference. Therefore, that argument must be rejected as irrelevant.

33 Furthermore, with regard to MOL’s claim that those arguments were reiterated in its application, it must be noted that they were examined by the General Court in the context of the single plea invoked by MOL. Since the General Court rejected that plea in paragraph 63 of the judgment under appeal, the claim by MOL must also be rejected as irrelevant.

34 Consequently, the first ground invoked by MOL in support of its appeal must be rejected in its entirety.

The second ground of appeal

Arguments of the parties

35 By its second ground of appeal, alleging an infringement of Article 65(2) of Regulation No 207/2009 and Article 135(4) of the Rules of Procedure of the General Court, MOL complains that that court held the evidence included in its application to be inadmissible in so far as it was presented for the first time before it.

36 On the one hand, MOL claims that, in the context of the proceedings before OHIM, it had set out in, inter alia, the written observations submitted by it, the facts and arguments covered by that evidence. That evidence therefore does not alter the subject-matter of the proceedings and does not relate to new facts or arguments.

37 On the other, MOL claims that it is apparent from the Court’s case-law that evidence of the accuracy of well-known facts invoked in the context of the proceedings before the General Court may be submitted, even if it was not presented in the context of the proceedings before OHIM (judgments in Storck v OHIM, C-25/05 P, EU:C:2006:422, paragraphs 50 and 51, and LG Electronics v OHIM, C-88/11 P, EU:C:2011:727, paragraph 29). It deduces therefrom that the evidence it attached to its application initiating proceedings was admissible given that it is clear that it concerns well-known facts. Not only were those facts known by everyone in the sector of information concerning the functioning and general use of debit and credit cards with different colours, but those facts could also be consulted by means of generally accessible sources, in particular, the website of MOL and the public trade mark registers.

38 OHIM considers that that ground of appeal must be rejected in so far as MOL does not draw a distinction between the facts invoked and the administration of proof of those facts. Therefore, even if MOL alleged the existence of a family of ‘mol’ marks, it failed to adduce evidence in support of such a contention.

Findings of the Court

39 It should be noted that, as the General Court pointed out in paragraph 22 of the judgment under appeal, an action brought before it seeks a review of the lawfulness of decisions of the Boards of Appeal within the meaning of Article 65 of Regulation No 207/2009 and that, under Article 135(4) of the Rules of Procedure of the General Court, the parties’ pleadings may not change the subject-matter of the proceedings before the Board of Appeal.

40 In the present case, MOL merely alleges that, during the proceedings before OHIM, it duly set out the facts and arguments covered by the evidence which was attached to its application. It does not, however, deny that it failed to present that evidence during the proceedings before OHIM.

41 Therefore, the conclusion reached by the General Court in paragraph 23 of the judgment under appeal, that the evidence attached by MOL to its application is inadmissible in so far as it was presented for the first time before it, is not called into question by the arguments invoked in support of the present ground of appeal.

42 With regard to the argument alleging that the facts invoked before the General Court are well known, it should be noted that the case-law on which the arguments of MOL are based is not relevant in the context of the present appeal. That case-law provides, first, that the bodies of OHIM may base their decisions on well-known facts, that were not invoked by the applicant, being required to establish the accuracy thereof (judgment in Storck v OHIM, EU:C:2006:422, paragraphs 50 and 51), and, secondly, that they are entitled to present documents to the General Court in order to substantiate the accuracy of a well-known fact although the latter has not been established in the OHIM decision contested before the General Court (judgment in LG Electronics v OHIM, EU:C:2011:727, paragraph 29). Consequently, that case-law cannot usefully be invoked by an applicant which attaches to its application initiating proceedings before the General Court evidence that was not presented or examined in the context of the proceedings before OHIM.

43 Therefore, the second ground invoked by MOL in support of its appeal must be rejected as manifestly unfounded.

The third ground of appeal

Arguments of the parties

44 By its third ground of appeal, alleging an infringement of Article 8(1)(b) of Regulation No 207/2009, MOL complains that the General Court held that the Board of Appeal was correct to find that there existed a likelihood of confusion between the marks at issue.

45 MOL claims that the General Court, in defining the relevant public, disregarded the fact that the characteristics of banking and financial services imply a high degree of attention on the part of the average consumer who will subscribe to such services only after a particularly careful examination. Such a fact is liable to reduce the likelihood of confusion between the marks relating to those services.

46 With regard to the comparison of the services, MOL claims that the General Court erred in law, first, by failing to regard as a question of evidence the fact that the services covered by the application for registration are included in the list of the class at issue, and, secondly, by stating that the services referred to by the earlier marks include the services covered by the mark in respect of which registration is sought. According to MOL, the comparison between each of the earlier marks and the mark at issue reveals a partial dissimilarity, since the services in Class 36 of the Nice Agreement referred to by the earlier marks are understood in a broad sense and are not identical to the specialised services in Class 36 covered by the mark for which registration is sought.

47 With regard to the comparison of the signs, MOL complains that the General Court failed to take into account the weak distinctive character of the element ‘blue’ which results from the fact that it designates a primary colour used generally in business and everyday language and argues that it is generally used in relation to credit or debit cards in the banking and finance sector. MOL claims also that, in paragraph 46 of the judgment under appeal, the General Court incorrectly interpreted and rejected without grounds its arguments relating to the reputation of the word ‘mol’, the purpose of which was, in reality, to show its distinctive and dominant character in the mark at issue.

48 Moreover, MOL considers that, by rejecting the reference it made to the principles of sound administration and equal treatment and by referring to the principle of legality without specifying the reason why it was infringed and which type of unlawfulness MOL had invoked in support of its claim, the General Court infringed those principles.

49 As regards the assessment of the visual, phonetic and conceptual similarity of the marks at issue, MOL claims, first of all, that the degree of visual similarity is extremely weak in the light in particular of the number and length of the initial words ‘BBVA’ and ‘TARJETA’, the position and weak distinctive character of the word ‘blue’ and the reputation of the highly distinctive word ‘mol’. MOL adds that the conclusion reached by the General Court in paragraph 47 of judgment under appeal is incorrect given that consumers are able to identify the differences between the marks at issue. Next, MOL claims that, as a result of the very weak degree of phonetic similarity between those marks, the visual similarity cannot be average. Finally, according to MOL, the degree of conceptual similarity is weak in so far as, first, for non-Spanish-speaking consumers, the words ‘card’ and ‘tarjeta’ are not similar and, secondly, consumers concentrate on the differences between the marks at issue, in particular the word ‘mol’ and the sign ‘BBVA’.

50 Consequently, MOL considers that the General Court erred in law by holding that the presence of the words ‘mol’ and ‘card’ is not enough to offset the similarity of the weakly distinctive element ‘blue’ and that the conclusion that it failed to invoke any arguments or evidence capable of showing that the findings of the Board of Appeal in that regard are mistaken is factually incorrect.

51 OHIM considers that that ground of appeal must be rejected as manifestly inadmissible in so far as MOL seeks, in reality, to obtain a reexamination by the Court of the findings of fact made by the General Court, without showing or claiming that the latter distorted the facts or evidence.

Findings of the Court

52 It should be noted that, under Article 256(1) TFEU and the first subparagraph of Article 58 of the Statute of the Court, an appeal lies on a point of law only. The General Court has, therefore, exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law subject, as such, to review by the Court of Justice on appeal (see judgment in Calvin Klein Trademark Trust v OHIM, C-254/09 P, EU:C:2010:488, paragraph 49 and case-law cited).

53 It suffices to state that, by complaining that the General Court incorrectly assessed the similarity of the services at issue and the visual, phonetic and conceptual similarity of the marks at issue and, therefore, that it found the existence of a likelihood of confusion between them, MOL seeks to have reviewed by the Court factual assessments made by the General Court in the context of the single plea invoked by MOL at first instance, without showing or even alleging that the General Court distorted the facts or evidence.

54 In those circumstances, it is necessary to reject the third ground of appeal as manifestly inadmissible.

55 Since none of the three grounds of appeal invoked by MOL in support of its appeal has been upheld, the latter must be dismissed in its entirety.

Costs

56 Under Article 138(1) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellant has been unsuccessful and OHIM has applied for an order for costs, the appellant must be ordered to pay the costs.

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

1. Dismisses the appeal;

2. Orders MOL Magyar Olaj- és Gázipari Nyrt. to pay the costs.

[Signatures]

* Language of the case: English.

Order of 17 Jul 2014, C-468/13 (MOL), ECLI:EU:C:2014:2116.