ORDER OF THE COURT (Seventh Chamber)

15 November 2016 (*)

(Appeal — Article 181 of the Rules of Procedure of the Court — EU trade mark — Invalidity proceedings — Word mark AROMA – Regulation (EC) No 207/2009 — Article 52(1)(a) and Article 7(1)(b) and (c) — Appeal in part manifestly inadmissible and in part manifestly unfounded)

In Case C‑389/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 July 2016,

BSH Hausgeräte GmbH, formerly BSH Bosch und Siemens Hausgeräte GmbH, established in Munich (Germany), represented by S. Biagosch, Rechtsanwalt,

applicant,

the other parties to the proceedings being:

Peter Chung-Yuan Chang, resident in San Diego (United States),

applicant at first instance,

European Union Intellectual Property Office (EUIPO),

defendant at first instance,

THE COURT (Seventh Chamber),

composed of A. Prechal, President of the Chamber, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,

Advocate General: M. Bobek,

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, BSH Hausgeräte GmbH seeks the setting aside of the judgment of 12 May 2016, Chung-Yuan Chang v EUIPO — BSH Hausgeräte (AROMA) (T‑749/14, not published, EU:T:2016:286) (‘the judgment under appeal’), by which the General Court dismissed its action seeking annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 September 2014 (Case R 1887/2013-4), relating to invalidity proceedings between Mr Peter Chung-Yuan Chang and BSH Hausgeräte concerning the word mark AROMA.

2        BSH Hausgeräte also claims that the Court should order EUIPO and Mr Chung-Yuan Chang to pay the costs.

3        In support of its appeal, BSH Hausgeräte puts forward two grounds of appeal. The first ground of appeal alleges infringement of Article 52(1)(a) and Article 7(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1). The second ground of appeal alleges infringement of Article 52(1)(a) and Article 7(1)(b) of Regulation No 207/2009.

 The appeal

4        Pursuant to 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.

5        It is appropriate to apply that provision to the present case.

6        On 7 October 2016, the Advocate General took the following position:

‘1.      I propose to the Court to reject the appeal lodged by BSH Hausgeräte ... which seeks to have the [judgment under appeal] set aside. In my view the ... appeal is in part manifestly inadmissible and in part manifestly unfounded for the following reasons:

 First ground of appeal: Breach of Articles 52(1)(a) and 7(1)(c) of Regulation [No] 207/2009

2.      By its first ground of appeal, the appellant claims that the judgment under appeal is self-contradictory and distorts the facts of the case. As a result, the General Court was wrong to hold that the mark “AROMA” was not descriptive.

3.      Under Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has 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 do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, recently, judgment of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 59 and the case-law cited).

4.      Such distortion of the facts and evidence is exceptional in nature (see, recently, judgment of 22 September 2016, Pensa Pharma v EUIPO, C‑442/15 P, not published, EU:C:2016:720, paragraph 21) and must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (judgment of 18 March 2010, Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 32).

5.      Nothing in the General Court’s presentation or assessment of the facts in this case amounts to such a manifest distortion. In particular, the General Court’s statements that the intended use of the goods at issue is not to obtain beverages or foodstuffs with aroma, and that “AROMA” involves “at most an indirect connection with those goods”, do not amount to such a distortion.

6.      As regards the alleged contradiction invoked, the appellant argues that it is “incomprehensible” that the General Court, on the one hand, acknowledged that the aroma of foods depends on the way they are cooked and, on the other, concluded that “AROMA” does “not allow for a direct reference to [the goods at issue] to be created without further thought” (paragraph 40 of the judgment under appeal).

7.      Rather than identifying an actual contradiction in the General Court’s reasoning, the appellant is in practice merely calling into question the General Court’s assessment of the facts, that is, that the term “AROMA” is not descriptive, since the connection with the goods at issue is too indirect. As such, the appellant is essentially asking the Court of Justice to substitute its own assessment of the facts and evidence for that of the General Court (see, recently, judgment of 17 March 2016, Naazneen Investments v OHIM, C‑252/15 P, not published, EU:C:2016:178, paragraph 60 and the case-law cited). That line of argument is, therefore, inadmissible.

8.      To the extent the first ground alleges a distortion of the facts, it is manifestly unfounded. To the extent it in practice seeks a reappraisal of the facts, it is manifestly inadmissible.

 Second ground of appeal: Breach of Article[s] 52(1)(a) and 7(1)(b) of Regulation [No] 207/2009

9.      By its second ground of appeal, the appellant claims that the mark “AROMA” is descriptive and therefore cannot be distinctive. The appellant also alleges a distortion of the facts by the General Court.

10.      The second ground effectively refers to and relies on the first ground. It should therefore be rejected as partly manifestly unfounded and partly manifestly inadmissible for the same reasons as those set out above at points 2 to 7.’

7        For the same reasons as those given by the Advocate General, the appeal must be dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

 Costs

8        Under Article 137 of the Rules of Procedure of the Court, applicable to appeal proceedings by virtue of 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 was adopted before the application was served on the other parties to the proceedings and therefore before they could have incurred costs, BSH Hausgeräte must be ordered to bear its own costs.

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

1.      The appeal is dismissed;

2.      BSH Hausgeräte GmbH is to bear its own costs.

Luxembourg, 15 November 2016.

* Language of the case: English.