ORDER OF THE COURT (Seventh Chamber)

14 January 2015 (*)

(Appeal — Community trade mark — Regulation (EC) No 207/2009 — Articles 15(1) and 51(1)(a) — Word mark RECARO — Application for revocation — Partial refusal by the Board of Appeal of OHIM)

In Case C‑57/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 31 January 2014,

Recaro Holding GmbH, formerly Recaro Beteiligungs-GmbH, established in Stuttgart (Germany), represented by J. Weiser, Rechtsanwalt,

applicant,

the other party to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant at first instance,

THE COURT (Seventh Chamber),

composed of J.-C. Bonichot, President of the Chamber, A. Arabadjiev and J.L. da Cruz Vilaça (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a ruling by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By its appeal, Recaro Holding GmbH (‘Recaro’), formerly Recaro Beteiligungs-GmbH, asks the Court to set aside the judgment in Recaro v OHIM — Certino Mode (RECARO) (T‑524/12, EU:T:2013:604; ‘the judgment under appeal’) by which the General Court of the European Union dismissed its action for annulment of the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 September 2012 (Case R 1761/2011-1; ‘the contested decision’), made following revocation proceedings between Recaro and Certino Mode SL (‘Certino’), a company established in Spain.

 Legal context

2        Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed and replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

3        Article 15(1) of Regulation No 207/2009 provides:

‘If, within a period of five years following registration, the proprietor has not put the Community trade mark to genuine use in the Community in connection with the goods or services in respect of which it is registered, or if such use has been suspended during an uninterrupted period of five years, the Community trade mark shall be subject to the sanctions provided for in this Regulation, unless there are proper reasons for non-use.

...’

4        Article 51(1)(a) of that regulation states:

‘The rights of the proprietor of the Community trade mark shall be declared to be revoked on application to the Office or on the basis of a counterclaim in infringement proceedings:

(a)      if, within a continuous period of five years, the trade mark has not been put to genuine use in the Community in connection with the goods or services in respect of which it is registered, and there are no proper reasons for non-use ...’

 Background to the dispute

5        On 25 June 1999, Certino obtained from OHIM the registration, under No 73 434, of the word mark RECARO (‘the contested trade mark’) on the basis of Regulation No 40/94.

6        The goods covered by that registration are in Classes 10 and 25 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 10: ‘Orthopaedic footwear’;

–        Class 25: ‘Footwear (except orthopaedic)’.

7        On 16 September 2009, Recaro submitted an application pursuant to Article 51(1)(a) of Regulation No 207/2009 for revocation of Certino’s rights in the contested trade mark, on the ground that the mark in question had not been put to genuine use.

8        By decision of 29 June 2011, the Cancellation Division of OHIM found that the mark in question had not been put to genuine use and revoked all of Certino’s rights in that trade mark.

9        On 25 August 2011, Certino lodged an appeal with OHIM against that decision pursuant to Articles 58 to 64 of Regulation No 207/2009, asserting that it had put the contested trade mark to genuine use and providing additional evidence.

10      By the contested decision, the First Board of Appeal of OHIM (‘the Board of Appeal’) partially upheld Certino’s appeal, restoring its rights in the contested trade mark in respect of the ‘footwear (except orthopaedic)’ in Class 25 of the Nice Agreement, but dismissing the appeal with regard to the ‘orthopaedic footwear’ in Class 10 of that agreement.

11      The Board of Appeal held, in particular, that the orders received from two purchasers and the orders sent to a footwear manufacturer clearly demonstrated significant use of the contested trade mark in connection with the footwear in Class 25 of the Nice Agreement throughout the relevant period. In addition, other evidence, such as Certino’s presence at trade fairs and an article published online concerning that company’s products, were found by the Board to establish use of the contested trade mark. However, the Board of Appeal found, in common with the Cancellation Division, that no evidence had been produced demonstrating use of the contested trade mark in connection with the ‘orthopaedic footwear’ in Class 10 of the Nice Agreement.

 Procedure before the General Court and the judgment under appeal

12      By application lodged at the Registry of the General Court on 3 December 2012, Recaro brought an action for annulment of the contested decision. In support of its action, Recaro raised three pleas in law, alleging respectively: (i) infringement of Article 51(1)(a) of Regulation No 207/2009, read in conjunction with Article 15 of that regulation, in that the Board of Appeal should not have found that there was genuine use of the contested trade mark in connection with the ‘footwear’ in Class 25 of the Nice Agreement; (ii) infringement of Article 76(2) of Regulation No 207/2009, read in conjunction with Rule 50(1) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1); and (iii) infringement of Article 75 of Regulation No 207/2009, submitting that, in failing to give a ruling on the relevance of evidence submitted out of time, the Board had failed to fulfil its duty to state reasons.

13      The General Court held that all those pleas in law were unfounded and, accordingly, dismissed the action in its entirety.

 Forms of order sought by the appellant before the Court of Justice

14      Recaro claims that the Court should:

–        set aside the judgment under appeal and give a definitive ruling on the dispute, amending the contested decision to revoke all of Certino’s rights in the contested trade mark or, in the alternative, refer the case back to the General Court;

–        order OHIM — and, if appropriate, Certino — to pay the costs.

 The appeal

15      Under Article 181 of its Rules of Procedure, where an 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.

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

 Recaro’s arguments

17      Recaro relies on a single ground of appeal, alleging infringement of Article 51(1)(a) of Regulation No 207/2009, read in conjunction with Article 15 of that regulation. That ground is divided into three parts.

18      By the first part of its single ground of appeal, Recaro submits that, for the purposes of assessing whether the contested trade mark had been put to genuine use, the General Court referred to certain pictures which were undated or which predated the period from 16 September 2004 to 15 September 2009 (‘the relevant period’) even though, according to the case-law of the Court of Justice, only evidence pertaining to the relevant period may be taken into account (order in La Mer Technology, C‑259/02, EU:C:2004:50, paragraph 30, and judgment in Colloseum Holding, C‑12/12, EU:C:2013:253, paragraph 31).

19      In particular, Recaro argues that the General Court based its assessment on pictures dating from 1998 or 1999 (that is, predating the relevant period), both in the context of demonstrating use of the contested trade mark in connection with the goods covered by that trade mark registration (paragraph 37 of the judgment under appeal) and in the context of assessing the use of that mark as registered (paragraph 43 of that judgment). Regarding the undated pictures, Recaro asserts that they may not be taken into account even to corroborate other evidence which is dated, since there is no connection between them and that evidence.

20      Thus, according to Recaro, the judgment under appeal is vitiated by an error of law, in so far as the General Court used those pictures as the basis for its assessment as to whether there was genuine use, and should therefore be set aside. Recaro relies in that regard on paragraph 75 of the judgment in Il Ponte Finanziaria v OHIM (C‑234/06 P, EU:C:2007:514), arguing that, although the assessment of evidence for the purposes of ascertaining whether there is genuine use is a question of fact which is not open to review by the Court of Justice on appeal, the question of which evidence may be used in that assessment is a question of law and as such is open to review by the Court.

21      By the second part of its single ground of appeal, Recaro alleges distortion of the facts by the General Court. Thus, first, by using the expression ‘some of the pictures are not dated or predate [the relevant period]’ in paragraph 37 of the judgment under appeal, that court implied that there were other pictures which were dated and which pertained to the relevant period, which is not consistent with the actual evidence in the case-file. Second, in paragraph 36 of that judgment, the General Court distorted the meaning of the statement provided by Certino’s sales director, since that person at no time stated that the highest-selling type of rubber-soled sandal was marketed under the contested trade mark.

22      By the third part of its single ground of appeal, Recaro argues that the General Court disregarded the rules regarding the burden of proof. First, as regards demonstrating use of the contested trade mark in connection with the goods in respect of which it was registered and in the form in which it was registered, the General Court disregarded, in paragraphs 32 and 43 of the judgment under appeal, the rule that it is for Certino to prove genuine use of the contested trade mark, rather than for Recaro to prove that the mark in question has been used for other products or in a form other than the form registered. Second, in paragraph 33 of the judgment under appeal, the General Court merely stated that some evidence ‘point[ed] to’ the use of the contested trade mark in connection with the ‘footwear’ in Class 25 of the Nice Agreement, instead of basing its findings on specific evidence produced by Certino demonstrating genuine use of that trade mark.

 Findings of the Court

23      As regards the first part of the single ground of appeal, Recaro submits in essence that the General Court erred in law in basing its assessment of whether there was genuine use of the contested trade mark on pictures which were undated or which predated the relevant period.

24      In that regard, it should be noted that, in paragraphs 34 to 37 of the judgment under appeal, the General Court assessed the use of the contested trade mark in connection with the goods in respect of which it was registered, using as its basis, not — as Recaro alleges — evidence which was undated or which predated the relevant period, but a body of evidence.

25      First, the General Court found that the purchase orders considered could be regarded as relating to the marketing of footwear under the contested trade mark. Secondly, it took into account the licensing contract concluded between Certino and a footwear manufacturer. Thirdly, that court analysed a statement provided by Certino’s sales director, according to which that company has commercial relations with partners concerning the sale of footwear under the contested trade mark. Recaro does not dispute that evidence, with the exception of the sales director’s remarks regarding the highest-selling type of footwear, which Recaro argues were distorted.

26      It was solely in order to corroborate the other evidence in the case-file before it that the General Court, acting in accordance with paragraphs 57 and 58 of its judgment in Certmedica International and Lehning entreprise v OHIM — Lehning entreprise and Certmedica International (L112) (T‑77/10 and T‑78/10, EU:T:2012:95), took into consideration evidence which was undated or which predated the relevant period.

27      The same is true of paragraph 43 of the judgment under appeal concerning the use of the contested trade mark as registered. In that regard, the General Court, having observed in paragraph 42 of that judgment that the specific representation of a word mark is not generally of such a nature as to alter the distinctive character of that mark as registered, found in essence that the evidence before it confirmed that the contested trade mark was being used in a form which did not alter its distinctive character. In that context, the General Court made reference to the pictures which were undated or which predated the relevant period only as ‘additional evidence supporting the other evidence’.

28      In the light of the foregoing, the first part of the single ground of appeal must be rejected as manifestly unfounded.

29      As regards the second part of the single ground of appeal, it should be noted that the supposed distortion of facts invoked by Recaro is based on a clear misreading of the judgment under appeal and, in any event, is not obvious from the documents in the case-file (see, to that effect, order in Zoo Sport v OHIM, C‑676/13 P, EU:C:2014:2080, paragraph 22).

30      Indeed, in paragraph 37 of the judgment under appeal, the General Court merely states that some of the pictures referred to in the contested decision were undated or predated the relevant period. It cannot be inferred from that statement that the General Court meant to imply that there are other pictures which are dated or which pertain to the relevant period. Moreover, as that court rightly observed, it is common ground that Certino’s sales director confirmed, by his statements, that Certino’s commercial relations with its partners concerned footwear sold under the contested trade mark. Consequently, the supposed distortion invoked by Recaro of that director’s remarks regarding the highest-selling product would not be of such a nature as to undermine the General Court’s assessment regarding the genuine nature of the use of the contested trade mark.

31      In those circumstances, the second part of the single ground of appeal must be rejected as manifestly unfounded.

32      As regards the third part of the single ground of appeal, it should be observed that, as can be seen from paragraphs 32 and 43 of the judgment under appeal, the General Court is merely stating that there is no evidence to support the arguments put forward by Recaro to challenge the lawfulness of the contested decision and that, consequently, the General Court is in no way reversing the burden of proof.

33      Therefore, that third part must be rejected as manifestly unfounded.

34      In the light of the foregoing, the present appeal must be dismissed in its entirety as manifestly unfounded.

 Costs

35      Under Article 137 of the Rules of Procedure, 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. In the present case, Recaro is to be ordered to bear its own costs.

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

1.      Dismisses the appeal;

2.      Orders Recaro Holding GmbH to bear its own costs.

[Signatures]

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* Language of the case: English.