ORDER OF THE COURT (Eighth Chamber)
8 January 2019 (*)
(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Opposition proceedings — Application for registration of the word mark EMCURE — Partial rejection of the opposition)
In Case C‑533/18 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 14 August 2018,
Emcur Gesundheitsmittel aus Bad Ems GmbH, established in Bad Ems (Germany), represented by K. Bröcker, Rechtsanwalt,
appellant,
the other party to the proceedings being:
European Union Intellectual Property Office (EUIPO),
defendant at first instance,
THE COURT (Eighth Chamber),
composed of F. Biltgen, President of the Chamber, C.G. Fernlund (Rapporteur) and L.S. Rossi, Judges,
Advocate General: Y. Bot,
Registrar: A. Calot Escobar,
having decided, 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
Order
1 By its appeal, Emcur Gesundheitsmittel aus Bad Ems GmbH seeks to have set aside the judgment of the General Court of the European Union of 14 June 2018, Emcur v EUIPO — Emcure Pharmaceuticals (EMCURE) (T‑165/17, not published, ‘the judgment under appeal’, EU:T:2018:346), in so far as, by that judgment, the General Court dismissed in part its action seeking annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 13 December 2016 (Case R 790/2016-2), relating to opposition proceedings between Emcur Gesundheitsmittel aus Bad Ems GmbH and Emcure Pharmaceuticals Ltd.
2 In support of its appeal, the appellant relies on a single ground, alleging infringement of Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
The appeal
3 Pursuant 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.
4 That provision must be applied in the present case.
5 On 12 November 2018, the Advocate General took the following position:
‘1. For the reasons which I shall discuss hereinafter, I propose that the Court should dismiss the appeal as being manifestly unfounded and order the appellant to pay the costs, in accordance with Articles 137 and 184(1) of the Rules of Procedure.
2. In support of its appeal, the appellant relies on a single ground, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, submitting that the General Court did not properly assess the similarity between, on the one hand, the services covered by the mark applied for in Classes 35 and 41 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, and, on the other hand, the goods covered by the earlier mark, in Class 5 of that agreement.
3. That ground of appeal is divided into two parts.
4. By the first part of the single ground of appeal, the appellant alleges that the General Court erred in its assessment of the similarity of the goods and services at issue by failing to take proper account of the relevant public. In particular, the appellant submits that, in paragraph 39 of the judgment under appeal, the General Court failed to take account of the general public although this was a relevant group of consumers to which, it claims, the General Court referred in paragraph 35 of that judgment. According to the appellant, the General Court thus distorted facts or, ‘at the very least’, infringed general principles established by the case-law of the Court of Justice.
5. Although, in paragraph 25 of its appeal, the appellant alleges that the General Court distorted facts by failing to take into account, as part of its assessment, all the components of the relevant public, all of its criticism seeks in reality to demonstrate that the General Court failed properly to apply the principles established by the relevant case-law, to which it refers, in particular, in paragraph 24 of that appeal.
6. The appellant’s criticism is, however, based on a far from complete, and incorrect, reading of the judgment under appeal, and must be rejected at the outset as being manifestly unfounded.
7. First, although the appellant seeks to demonstrate that there is an error vitiating the General Court’s reasoning, by drawing a parallel between the General Court’s findings in paragraph 35 of the judgment under appeal and its analysis in paragraph 39 of that judgment, it is clear that, in paragraph 35 of that judgment, the General Court merely summarises the arguments which the appellant raised in that regard, and did not define the relevant public, which, moreover, the appellant did not contest.
8. Second, as regards the relevant public which must be taken into account in order to assess the likelihood of confusion between the goods and services at issue, the General Court expressly noted, in paragraph 39 of the judgment under appeal, that, in accordance with the case-law referred to in paragraph 18 of that judgment, the relevant public should be users who are likely to use both the goods and services covered by the earlier marks, and the goods and services covered by the mark applied for.
9. Therefore, and in accordance with the wording of that case-law, the General Court, for the purposes of its analysis, was fully entitled to take into account solely the category of the relevant public likely to use both the products covered by the earlier word mark EMCUR in Class 5 of the Nice Agreement, and the services covered by the word mark EMCURE applied for in Classes 35 and 41 of that agreement. That category comprises professionals and the General Court excluded the general public from that category.
10. By the second part of the single ground of appeal, the appellant submits that the General Court erred in law and, furthermore, contradicted its analysis when it assessed whether the goods covered by the earlier word mark EMCUR, in Class 5 of the Nice Agreement, and the services covered by the word mark EMCURE applied for, in Classes 35 and 41 of that agreement, are complementary.
11. In particular, the appellant alleges that the General Court did not examine, in paragraphs 41 to 44 of the judgment under appeal, whether the relevant public would be likely to believe that responsibility for supplying those services and producing those goods lies with the same undertaking. The appellant submits that the General Court’s analysis is therefore contradictory in so far as the latter did carry out that examination in paragraph 50 of the judgment under appeal, regarding the services in Class 42 of the Nice Agreement, and in paragraph 60 of that judgment, regarding the services in Class 44 of that agreement.
12. It is clear that that criticism is based on a misinterpretation of the principles laid down by the applicable case-law.
13. It is apparent from that case-law, referred to by the General Court in paragraph 29 of the judgment under appeal, that, in assessing the similarity of the goods and services covered by the signs at issue, all the relevant factors relating to those goods or services should be taken into account, including, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary.
14. It also follows from the case-law referred to by the General Court in paragraph 30 of the judgment under appeal that the goods or services which are complementary are those between which there is a close connection, in the sense that one is indispensable or important for the use of the other, in such a way that consumers may think that the responsibility for the production of those goods or supply of those services lies with the same undertaking.
15. In accordance with that case-law, the assessment of whether the goods and services are complementary therefore requires the nature of the relationship or link between them to be specified, by examining whether the use of those goods is indispensable or important for the purposes of supplying those services and, vice‑versa, whether the supply of those services is indispensable or important for the purpose of using those goods.
16. The question of whether the relevant public is likely to think that one and the same undertaking is alone responsible for supplying the services at issue and producing the goods concerned does not, according to that case-law, constitute a relevant factor that is capable of determining the relationship between those goods and those services, and which it would therefore be necessary to take into account for the purposes of assessing whether they are complementary. As is clear from the wording of that case-law and, in particular from the use of the expression ‘in such a way that’, the likelihood of confusion in the mind of the consumers arises as a result of the goods and services being complementary and thus comes under the very definition of the concept of ‘complementary goods or services’.
17. In those circumstances, the General Court did not err in law in its analysis of whether the goods and services at issue are complementary by merely examining, first, in paragraph 41 of the judgment under appeal, whether the use of pharmaceutical goods is indispensable or important for the purposes of supplying event organisation services, and vice-versa, then in paragraph 42 of that judgment, whether the use of pharmaceutical products is indispensable or important for the provision of a publication service in the pharmaceutical and medical field, and vice-versa, and, finally, in paragraph 43 of that judgment, whether taking medicine is indispensable or important for the purposes of supplying services relating to ‘health club facilities’, and vice-versa.
18. Furthermore, the General Court’s analysis is not contradictory.
19. Although, in paragraphs 50 and 60 of the judgment under appeal, the General Court did draw the conclusion that the relevant public is likely to believe that responsibility for the supply of the services in Classes 42 and 44 of the Nice Agreement and for the production of the pharmaceutical goods lies with the same undertaking, that conclusion follows from the General Court’s finding, in those paragraphs, that those services are closely linked to those goods.
20. By contrast, it is clear that, in paragraph 44 of the judgment under appeal, the General Court reached the opposite conclusion that the services in Classes 35 and 41 of the Nice Agreement, and the goods in Class 5 of that agreement, are not complementary.
21. In doing so, the General Court did not err in law and applied settled case‑law.
22. In the light of all those considerations, the appeal brought by Emcur Gesundheitsmittel aus Bad Ems must be dismissed as being manifestly unfounded and it must be ordered to pay the costs, in accordance with Article 137 and Article 184(1) of the Rules of Procedure.’
6 For the same reasons as those given by the Advocate General, the appeal must be dismissed as being manifestly unfounded.
Costs
7 Under Article 137 of the Rules of Procedure of the Court of Justice, 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 the present order has been adopted before service of the appeal on the respondent and, consequently, before the latter could have incurred costs, it is appropriate to decide that the appellant must bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby orders:
1. The appeal is dismissed as being manifestly unfounded.
2. Emcur Gesundheitsmittel aus Bad Ems GmbH shall bear its own costs.
Luxembourg, 8 January 2019.
A. Calot Escobar
F. Biltgen
Registrar
President of the Eighth Chamber
* Language of the case: English.