Order of the Court (Seventh Chamber) of 7 September 2016 —

Lotte v Nestlé Unternehmungen Deutschland

(Case C‑586/15 P) ( 1 )

‛Appeal — Article 181 of the Rules of Procedure of the Court of Justice — EU trade mark — Figurative mark including a word element in Japanese and a picture of a koala in a tree holding a small koala — Opposition by the proprietor of the earlier national three-dimensional mark KOALA-BÄREN and earlier figurative mark KOALA — Proof of genuine use of the mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark — Article 15(1)(a) and Article 42(2) and (3) of Regulation (EC) No 207/2009 — Appeal in part manifestly inadmissible and in part manifestly unfounded’

Appeal — Grounds — Breach of the prohibition on ruling ultra petita — Presentation of a summary of the arguments of the Board of Appeal preceding the description of the errors of assessment which the Board of Appeal is alleged to have made — Absence (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1) (see para. 29)

EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Requirement that the distinctive elements of the earlier mark be assessed prior to the assessment of genuine use (Council Regulation No 207/2009, Art. 15(1)(a)) (see para. 30)

Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 33, 39)

Operative part

The Court:

1.	Dismisses the appeal;

2.	Orders Lotte Co. Ltd to bear, in addition to its own costs, the costs incurred by Nestlé Unternehmungen Deutschland GmbH;

3.	The European Union Intellectual Property Office (EUIPO) shall bear its own costs.

( 1 ) OJ C 59, 15.2.2016.