The matter at hand

Naazneen Investments is the owner of an EU trade mark for the word mark SMART WATER for beverages, namely water with dietary supplements. Energy Brands successfully filed for the revocation of that trade mark on grounds of non-use. In the appeal brought before it, the General Court confirmed the decisions of EUIPO.

Naazneen Investments appealed the General Court’s decision before the ECJ, claiming that (i) the General Court was not entitled to regard the statement of reasons in the contested decision as sufficient because, for the most part, the Board of Appeal merely repeated the grounds set out by the Cancellation Division, without addressing the arguments submitted by the appellant and without mentioning any of the additional evidence submitted in the course of the appeal proceedings and (ii) the General Court erred in law when assessing the evidence intended to establish genuine use of the mark at issue.

The judgment of the ECJ

The ECJ first deals with the admissibility of the first ground of appeal in response to the position taken by EUIPO and Energy Brands that that ground of appeal is inadmissible, since it merely repeats the arguments put forward at first instance. The ECJ rules that, indeed, an appeal that “merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by that Court, […] fails to satisfy the requirement to state reasons”  and “amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake” (paragraph 23).

The ECJ, however, continues that this is different “where an appellant is disputing the General Court’s interpretation or application of European Union law” (paragraph 24). Since in this case Naazneen Investments disputed the interpretation and application of Article 75 of Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark by the General Court, while setting out the reasons why it considered that the General Court infringed that provision, the plea is admissible (paragraph 25).

As regards the substance of the first ground of appeal, the ECJ recalls that it is settled case-law of the ECJ that the obligation to state reasons “has the dual purpose of enabling interested parties to know the purported justification for the measure taken so as to be able to defend their rights and of enabling the Courts of the European Union to exercise their jurisdiction to review the legality of the decision” (paragraph 29).

According to the ECJ, this dual purpose has been met in this case, partly because the Board of Appeal, by confirming the analysis made by the Cancellation Division, implicitly rejected the appellant’s arguments claiming that there was sufficient proof of genuine use (paragraph 30) and partly because “the appellant has not disputed before the General Court, nor has it disputed in the present appeal, the sufficiency of the reasoning of the adjudicating bodies of OHIM to enable the appellant to know the purported justification for the decision at issue and to enable the General Court to exercise its jurisdiction to review the legality of that decision” (paragraph 32).

The fact that the Board of Appeal did not refer to the arguments put forward by Naazneen Investments does not alter this conclusion, considering that “the obligation on [EUIPO] to state reasons, under Article 75 of [Trade Mark Regulation 207/2009Council Regulation [EC] No 207/2009 of 26 February 2009 on the Community trade mark], may be discharged without it being necessary to respond expressly and exhaustively to all the arguments put forward by an applicant” (paragraph 34).

Regarding the second ground of appeal, the ECJ holds that Naazneen Investments essentially asks the ECJ to substitute its own assessment of the facts and evidence for that of the General Court, which does not fall within its jurisdiction in an appeal, and that, therefore, that line of arguments is inadmissible (paragraphs 60, 64, 66, 68, 93 and 99). Besides that, the ECJ considers that Naazneen Investments relies for its arguments on a misreading of the judgment of the General Court (paragraphs 62, 65, 67 and 94).

The ECJ concludes that the appeal must be dismissed in its entirety.