CELEX: 62017TJ0274
EU trade mark
Opposition proceedings
Application for EU figurative mark MONSTER DIP
Earlier EU word and figurative marks and unregistered sign used in the course of trade, all including the word element ‘monster’
Relative grounds for refusal
No likelihood of confusion
Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)
No likelihood of misleading association
Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001)
No likelihood of dilution of the reputation of the earlier mark
Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001)

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Background to the dispute
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Forms of order sought
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Law
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The alleged infringement of Article 8(1)(b) of Regulation No 207/2009
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The alleged infringement of Article 8(5) of Regulation No 207/2009
The condition relating to the existence of a link between the signs at issue
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… The finding that there is no connection between the marks at issue in the mind of the relevant public cannot be called into question by the applicant’s argument that the Board of Appeal should also have taken into account the goods for which the earlier EU figurative mark MONSTER ENERGY was not reputed, such as the goods ‘stickers’, ‘decals’ and ‘transfers’ in Class 16 covered by that earlier mark. Indeed, the absence of reputation implies that one condition for the application of Article 8(5) of Regulation No 207/2009 is not satisfied, and thus, there can be no detriment to the earlier mark in question. In other words, since the reputation of the earlier mark is a prerequisite for the existence of any of the infringements referred to in Article 8(5) of that regulation, including the detriment to the distinctive character of the earlier mark known as trade mark dilution, it follows that none of the infringements referred to in that provision can be found as regards the goods and services in relation to which the condition relating to the reputation of the earlier mark is not satisfied. Thus, it is appropriate to reject the applicant’s argument in the context of its fourth plea seeking to show that the Board of Appeal erred in taking into account, in order to establish the link between the marks at issue, only the goods in respect of which a reputation of the earlier mark had been demonstrated.
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The alleged infringement of Article 8(4) of Regulation No 207/2009
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Costs
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On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:

1.
Dismisses the action;

2.
Orders Monster Energy Company to pay the costs.

Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 13 December 2018.
E. Coulon
Registrar
S. Gervasoni
President
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)	Language of the case: English.
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)	Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.