CELEX: 62010TJ0584
Community trade mark
Opposition proceedings
Application for the Community figurative mark TEQUILA MATADOR HECHO EN MEXICO
Earlier national and international word marks MATADOR
Relative ground for refusal
No likelihood of confusion
No similarity of the goods
Article 8(1)(b) of Regulation (EC) No 207/2009

Grounds
Background to the dispute
1. On 5 August 2004, the intervener, Tequila Cuervo, SA de CV, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2. The mark in respect of which registration was sought is the figurative sign reproduced below:
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3. The goods in respect of which registration was sought, after a first restriction was applied for on 24 April 2008, are in Class 33 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond to the following description: ‘Alcoholic beverages, premixed alcoholic cocktails, tequila originating in Mexico and tequila liqueurs originating in Mexico’.
4. The application for a Community trade mark was published in Community Trade Marks Bulletin  No 32/2005 of 8 August 2005.
5. On 8 November 2005, the applicant, Mustafa Yilmaz, filed a notice of opposition, under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009), against registration of the mark applied for.
6. The opposition was based, first, on the earlier international word mark MATADOR, having effect in the Benelux countries, the Czech Republic, Denmark, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Hungary, Austria, Poland, Portugal, Slovenia, Slovakia, Finland, Sweden and the United Kingdom, registered on 31 October 2002 under number 792051, and, second, the earlier German word mark MATADOR, registered on 21 August 2002 under number 302050531, both marks covering goods in Class 32 and corresponding to the following description: ‘Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’.
7. The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009).
8. By decision of 3 September 2009, the Opposition Division upheld the opposition on the sole basis, for reasons of procedural economy, of the earlier German mark. The Opposition Division found, on the one hand, that the goods covered by the signs at issue were in competition with each other and, therefore, similar, and, on the other, that those signs were similar overall.
9. On 1 October 2009, the intervener filed a notice of appeal at OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
10. It is apparent from OHIM’s letter to the Court of 14 February 2012 that, in opposition proceedings parallel to those which are the subject of the present action, the intervener, by its application of 2 December 2009 filed at OHIM, submitted an additional restriction to the list of goods for which registration is sought in the present case, so that they correspond to the following description: ‘Tequila originating in Mexico, alcoholic cocktails containing tequila originating from Mexico, tequila liqueurs originating in Mexico’ falling within Class 33.
11. By decision of 13 October 2010 (‘the contested decision’), the Second Board of Appeal of OHIM upheld the appeal by annulling the Opposition Division’s decision, rejecting the opposition and allowing registration of the mark applied for in respect of ‘all the goods and services applied for’. In so finding, the Board of Appeal failed, however, to take account of the restriction to the list of goods at issue applied for by the intervener on 2 December 2009, as a result of an error for which OHIM acknowledges responsibility. The Board of Appeal explained, in essence, its decision as follows:
– for reasons of procedural economy, the likelihood of confusion is to be examined first of all by comparing the mark applied for with the earlier German mark (paragraph 17);
– the relevant public is composed of average consumers in Germany (paragraph 18);
– in accordance with the case-law of the General Court (Case T-175/06 Coca-Cola  v OHIM – San Polo (MEZZOPANE)  [2008] ECR II-1055, and judgment of 29 April 2009 in Case T-430/07 Bodegas Montebello  v OHIM – Montebello (MONTEBELLO RHUM AGRICOLE) , not published in the ECR), the alcoholic beverages covered by the mark applied for are different to both the ‘beers’ (paragraphs 21 to 30) and the ‘mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ (paragraphs 32 to 40) covered by the earlier German mark, due to their nature, origin, ingredients, method of production, intended purpose, use, lack of substitutability and lack of complementarity, even if some of those goods are, to a certain extent, in competition with each other;
– the finding that there is no similarity between the goods at issue is also valid in all the Member States other than Germany in which the earlier international mark is protected (paragraph 41);
– one of the cumulative conditions required by Article 8(1)(b) of Regulation No 207/2009, that is to say the identity or the similarity of the goods covered by the signs at issue, is not therefore fulfilled in the present case, so that, even if those signs were found to be identical, there would be no likelihood of confusion (paragraphs 42 to 44).
Forms of order sought
12. The applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
13. OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
14. In its letter of 14 February 2012, OHIM requests the Court to declare that the action has become devoid of purpose so far as it concerns ‘alcoholic beverages’.
15. The intervener contends that the Court should:
– uphold the contested decision;
– order the applicant to pay the costs.
Law
Application for a declaration that there is no need to adjudicate in part
16. In its letter of 14 February 2012, OHIM submits that, as the intervener has withdrawn its application for registration in respect of ‘alcoholic beverages’, the present action has become devoid of purpose in so far as it concerns those goods.
17. In its written observations on that letter, the intervener confirmed that withdrawal but made no comment on its procedural consequences.
18. The applicant did not take up the Court’s invitation to submit observations on that letter.
19. In that regard, the Court observes that, pursuant to Article 43(1) of Regulation No 207/2009, the applicant may at any time withdraw his Community trade mark application or restrict the list of goods or services contained therein. The list of goods or services specified in a Community trade mark application must be restricted in accordance with certain detailed rules, namely by an application for amendment of the application filed in accordance with Article 43 of Regulation No 207/2009 and Rule 13 of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) (see judgment of 17 June 2009 in Case T-464/07 Korsch  v OHIM (PharmaResearch) , not published in the ECR, paragraph 10 and the case-law cited).
20. In the present case, OHIM confirmed, by its letter of 14 February 2012, the proper and effective limitation of the list of goods covered by the trade mark application and the applicant has raised no objections in that regard. Moreover, that limitation is substantiated by OHIM’s online database.
21. The Court therefore finds that that limitation has been established and, consequently, that the Board of Appeal made an error by upholding the Community trade mark application in respect of ‘all the goods and services applied for’, including the ‘alcoholic beverages’ which were the subject of that limitation.
22. It must also be held, however, that that error had no detrimental effect for the applicant since, whatever the outcome of the present case, the mark applied for may not be registered as a Community trade mark for ‘alcoholic beverages’ on account of the limitation of the list of goods covered by the trade mark application.
23. In those circumstances, the present action can in fact be regarded as being devoid of purpose in so far as it seeks the annulment of the contested decision to the extent that it upheld the registration of the mark applied for in respect of ‘alcoholic beverages’. To that same extent, there is no need to adjudicate.
Substance
24. In support of its appeal, the applicant relies on a single plea in law, alleging breach of Article 8(1)(b) of Regulation No 207/2009.
25. The applicant submits that there is a likelihood of confusion between the marks at issue in view of, on the one hand, the very high degree of similarity, even identity, between the signs and, on the other, the similarity between the goods at issue, which the Board of Appeal assessed incorrectly. In that regard, the applicant claims, in particular, by referring to certain new evidence annexed to the application, the following:
– the relevant public is composed of average consumers in Europe, and not only consumers in Germany;
– the alcoholic beverages covered by the mark applied for and the ‘beers’ covered by the earlier marks are similar to an average degree; those goods belong to the same category of alcoholic beverages, are intended for the same public, are consumed in similar circumstances, possibly together or mixed as cocktails, in particular in restaurants and bars, can meet the identical need of quenching thirst, are sold in the same area of supermarkets and can originate from the same undertakings;
– the alcoholic beverages covered by the mark applied for and the ‘mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ covered by the earlier marks have at least an average degree of similarity; those goods belong to the general category of drinks, may be consumed to quench thirst, as an aperitif or to accompany a meal, are complementary due to the fact that they are often consumed together or mixed, in particular as cocktails, such as ‘premixed’ energy drinks, and are produced and distributed by the same undertakings; the goods at issue will therefore certainly meet on the market.
26. OHIM claims, as a preliminary point, that the production as evidence, in Annexes A1 to A9 to the application, of a number of documents is contrary to Article 135(4) of the Rules of Procedure of the Court, since they were produced for the first time before the Court. Consequently, those annexes to the application should be declared inadmissible.
27. As regards the substance, OHIM and the intervener contest the applicant’s argument and submit, in essence, that the Board of Appeal correctly assessed the likelihood of confusion between the goods at issue, and point out, in particular, the following:
– whether the relevant public is defined by reference to average German consumers or to average European consumers is immaterial;
– concerning the comparison of the alcoholic beverages covered by the mark applied for and the ‘beers’ covered by the earlier marks, the conclusions reached by the Court in MEZZOPANE are applicable to the present case;
– so far as concerns the comparison of the alcoholic beverages covered by the mark applied for and the ‘mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ covered by the earlier marks, the difference in nature relating to whether or not they contain alcohol is decisive; those goods are not in competition with each another, they are not substitutable and are not complementary; the fact that they may be mixed does not alter that assessment;
– with regard to the comparison of the signs at issue, their overall similarity must, according to the intervener, be considered to be relatively weak;
– according to the intervener, the dissimilarity of the goods at issue and the low degree of similarity of the signs at issue means that there can be no likelihood of confusion;
– according to the intervener, the contested decision is consistent with the Opposition Division’s decision of 16 January 2008 in Case B 767741.
28. As regards the consequences of the amendment made to the description of the goods covered by the trade mark application, OHIM submits, in its letter of 14 February 2012, that the failure of the Board of Appeal to take it into account has no bearing on the present proceedings since it does not affect the grounds relied on by the Board of Appeal set out in paragraphs 21 to 31 of the contested decision. According to OHIM, that amendment is not capable of affecting the assessment of the goods carried out by the Board of Appeal and does not change the factual context of the dispute as brought before the Board of Appeal. Consequently, that amendment has no bearing on the legality of the contested decision or on the scope of the Court’s review of legality.
29. In its observations on that letter, the intervener supports, in essence, OHIM’s view and submits that the amendment made to the description of goods covered by the trade mark application only serves to reinforce the validity of the contested decision.
30. Since the intervener submitted, in Annexes 4 to 16 to the response, some new evidence in support of its argument, the applicant requests, in its reply, that, if OHIM’s request referred to in paragraph 26 above is successful, Annexes 4 to 16 should also be declared inadmissible.
31. In that reply, the applicant invokes, first, the Opposition Division’s decision of 26 July 2011 in Case B 1752545 — ‘Don Angel’ , which found that beers in Class 32 and alcoholic beverages (except beers) in Class 33 are similar, in particular on the ground that those goods can be mixed and consumed together, for example in cocktails, and, second, the decision of the First Board of Appeal of OHIM of 4 May 2011 (Case R 1632/2010-1), which found that alcoholic beverages (except beers) and beers are usually part of a generalised distribution, that they can be considered as being complementary on the ground that they may occasionally be mixed, and that it cannot be excluded that beers and certain alcoholic beverages may originate, in particular at some of the stages of marketing the goods, from the same undertakings.
32. As regards the consequences of the amendment to the description of the goods covered by the trade mark application, the applicant made no observations in that regard.
33. The Court observes at the outset that it is settled case-law that facts not submitted by the parties before the departments of OHIM cannot be submitted at the stage of the appeal. The Court is called upon to assess the legality of the decision of the Board of Appeal by reviewing the Board’s application of Community law in the light, in particular, of the facts which were submitted to the Board (see, to that effect, Case C-214/05 P Rossi  v OHIM  [2006] ECR I-7057, paragraph 50), and it cannot carry out such a review by taking into account matters of fact newly produced before it (see Case C-29/05 P OHIM  v Kaul  [2007] ECR I-2213, paragraph 54 and the case-law cited).
34. Consequently, the requests by OHIM and the applicant that the Court should not take account of new evidence annexed to the application and to the intervener’s response should be granted.
35. With regard to the consequences of the amendment to the list of the goods covered by the trade mark application, OHIM’s current position amounts, in essence, to requesting the Court to conduct a more limited review of legality than the one requested in the application.
36. The Court finds, however, that OHIM’s request is justified by the fact that part of the subject-matter of the action has become nugatory and the action relates, in reality, only to ‘[t]equila originating in Mexico, alcoholic cocktails containing tequila originating from Mexico, [and] tequila liqueurs originating in Mexico’ covered, after the limitation, by the trade mark application. As that list of goods is more restricted than the list of goods initially covered and assessed by the Board of Appeal in the contested decision, the applicant suffers no detriment as a result. In addition, the applicant raised no objections to OHIM’s request, despite being invited by the Court to submit observations on OHIM’s letter of 14 February 2012.
37. Hereinafter in the present judgment, the term ‘alcoholic beverages covered by the trade mark application’ should therefore be understood as designating only ‘[t]equila originating in Mexico, alcoholic cocktails containing tequila originating from Mexico, [and] tequila liqueurs originating in Mexico’.
38. As to the remainder, it should be borne in mind that, under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier mark, the mark applied for is not to be registered if, because of its identity with or similarity to the earlier mark and the identity or similarity of the goods or services covered by the marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier mark.
39. According to settled case-law, the risk that the public might believe that the goods or services at issue come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to that same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services concerned and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services designated (see Case T-162/01 Laboratorios RTB  v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS)  [2003] ECR II-2821, paragraphs 30 to 33 and the case-law cited).
40. For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see Case T-316/07 Commercy  v OHIM — easyGroup IP Licensing (easyHotel)  [2009] ECR II-43, paragraph 42 and the case-law cited). Even where a sign is identical to another with a highly distinctive character, it is still necessary to adduce evidence of similarity between the goods or services covered (see MEZZOPANE , paragraph 19 and the case-law cited).
41. The single plea for annulment must, in the present case, be considered in the light of those principles.
42. So far as concerns the definition of the relevant public, there is no cause to call into question the Board of Appeal’s assessment set out in paragraphs 18 and 41 of the contested decision (see paragraph 11 above). As OHIM and the intervener correctly point out, it is of little importance that the relevant public is defined by reference to average German or European consumers. Moreover, as the applicant did not invoke the existence of factors, such as specific consumption habits in certain Member States other than Germany, which could have an impact on how the similarity of the goods is perceived, its complaint that the Board of Appeal incorrectly assessed the relevant public appears to be ineffective.
43. So far as concerns the assessment of the similarity between the goods at issue, it must be borne in mind that, according to settled case-law, all the relevant factors relating to those goods should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (see, by analogy, Case C-39/97 Canon  [1998] ECR I-5507, paragraph 23). Other factors may also be taken into account, such as the distribution channels of the goods concerned (see Case T-443/05 El Corte Inglés  v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños)  [2007] ECR II-2579, paragraph 37 and the case-law cited).
44. First, as regards the applicant’s complaint that the Board of Appeal incorrectly assessed the similarity between the alcoholic beverages covered by the mark applied for and the ‘beers’ covered by the earlier marks, in paragraphs 21 to 30 of the contested decision, it must be observed at the outset that that assessment seeks, mutatis mutandis , to comply fully with the Court’s assessment of the similarity between wine and beer set out in paragraphs 63 to 68 of MEZZOPANE .
45. In particular, as to whether wine and beer are in competition with each other, the Court held, in paragraph 68 of MEZZOPANE , referring to the case-law of the Court of Justice, that there is a ‘certain measure of mutual substitutability’ between some types of wine and beer and that those goods must therefore be recognised as being, to a certain extent, in competition with each other.
46. Referring expressly to paragraph 68 of MEZZOPANE  and to the case-law of the Court of Justice cited therein, the Board of Appeal itself acknowledged, in paragraph 28 of the contested decision, that wine and beer ‘are, to a certain extent, competing goods’ and added that ‘the same can be said for some other “alcoholic beverages” and “premixed alcoholic cocktails”’.
47. In other respects, the Board of Appeal did not identify any relevant factor capable of distinguishing the comparison of the goods at issue in the present case from that carried out by the Court, in respect of beer and wine, in MEZZOPANE .
48. The Board of Appeal therefore found, in paragraph 30 of the contested decision, that the goods compared in the present case ‘do not compete with one another and are neither interchangeable nor substitutable for one another nor complementary’, and it concluded, in that same paragraph, that those goods ‘are not similar’.
49. In that respect, it should be pointed out that, while it is true that the Court seems to have taken the view, in paragraph 70 of MEZZOPANE , that there is a ‘little similarity’ between wine and beer, it is also true that the Court expressly stated in its overall assessment of the likelihood of confusion, set out in paragraphs 102 to 109 of MEZZOPANE , upholding the Board of Appeal’s assessment, that all of the goods concerned were characterised by their ‘lack of similarity’. In any event, the Court confirms, in the present judgment, that, taking account of all the relevant factors relating to the goods at issue, as examined in paragraphs 63 to 69 of MEZZOPANE , beer and wine must be regarded as not being similar within the meaning of Article 8(1)(b) of Regulation No 207/2009.
50. With that point in mind, the fact that the average consumer in MEZZOPANE  was the average Austrian consumer whereas the average consumer in the present case is the average consumer in all of the countries in which the earlier marks are protected, is not relevant to the present case, for those reasons set out in paragraph 42 above.
51. The same is true of the fact that the goods to be compared in MEZZOPANE  were beer and wine whereas the goods to be compared in the present case are, on the one hand, beer and, on the other, ‘[t]equila originating in Mexico, alcoholic cocktails containing tequila originating from Mexico, [and] tequila liqueurs originating in Mexico’. On the contrary, the differences between those goods, in respect of all the relevant factors relating to them, are clearer and more substantial than the differences between beer and wine established by the Court in MEZZOPANE , with the result that those differences make it even more unlikely that the relevant public would believe that the same undertaking would produce and market the two types of beverage at the same time.
52. None of the considerations put forward by the applicant calls into question the validity of that assessment.
53. In so far as those considerations are based on new evidence annexed to the application, it must be borne in mind that they cannot be taken into account by the Court since they were not submitted to the Board of Appeal and do not constitute matters of common knowledge that the Court would have to take into account of its own motion (see paragraph 33 above).
54. As to the remainder, apart from a series of otherwise unsubstantiated claims, the applicant has not put to the Court any arguments capable of showing that the Board of Appeal’s assessment is vitiated by error. In that regard, it must be borne in mind, in particular, that, while the goods to be compared in the present case belong to the same general category of beverages, and more specifically to the category of alcoholic beverages, they are different in particular as regards their ingredients, method of production, colour, smell and taste, with the result that the average consumer perceives them to be different in nature. Those goods are not normally displayed in the same shelves in the areas of supermarkets and other outlets selling drinks. As regards their use, a significant difference between the goods is that beer quenches thirst which is not normally the case for the alcoholic beverages covered by the mark applied for. While it is true that those goods may be consumed in the same places and on the same occasions and satisfy the same need – for example, enjoyment of a drink during a meal or as an aperitif – the fact remains that they do not belong to the same family of alcoholic beverages and that the consumer perceives them as two distinct products, as the Court held, so far as concerns beer and wine, in paragraph 66 of MEZZOPANE .
55. The existence of alcoholic cocktails which mix beer with other alcohol, in particular tequila, does not remove the differences between the goods referred to above, since it is true of many drinks which are not similar (see, to that effect, as regards rum and cola, Case T-296/02 Lidl Stiftung  v OHIM — REWE-Zentral (LINDENHOF)  [2005] ECR II-563, paragraph 57).
56. Moreover, for the reasons set out in paragraph 67 of MEZZOPANE  and referred to in paragraph 27 of the contested decision, that fact does not mean that the goods at issue are complementary. Complementary goods are goods which are closely connected in the sense that one is indispensable or important for the use of the other (Case T-169/03 Sergio Rossi  v OHIM — Sissi Rossi (SISSI ROSSI)  [2005] ECR II-685, paragraph 60). In the present case, the alcoholic beverages covered by the mark applied for are neither indispensable nor important for the use of beers and vice versa. There is indeed nothing in the file to support the conclusion that a purchaser of one of those products would be led to purchase the other.
57. As to whether the goods at issue in the present case are in competition with each other, the Court considers that there is a significantly lower degree of competition than that found, with regard to wine and beer, in paragraph 68 of MEZZOPANE , and that the Board of Appeal took sufficient account of that fact, in paragraph 28 of the contested decision. The Court considered, in paragraph 68 of MEZZOPANE , that wine and beer are, to a certain extent, in competition with each other on the ground that, in accordance with the case-law of the Court of Justice concerning areas other than the Community trade mark, wine and beer are, to a certain extent, capable of meeting identical needs, which means that a certain measure of mutual substitutability must be acknowledged. However, the Court of Justice stated, as the General Court has also pointed out, that, in view of the significant differences in quality — and, accordingly, in price — between wines, the decisive competitive relationship between beer, a popular and widely consumed beverage, and wine must be established by reference to those wines which are the most accessible to the public at large, that is to say, generally speaking, the lightest and least expensive varieties (Case 356/85 Commission  v Belgium  [1987] ECR 3299, paragraph 10; see, also, Case 170/78 Commission  v United Kingdom [1983] ECR 2265, paragraph 8; and Case C-166/98 Socridis  [1999] ECR I-3791, paragraph 18). The alcoholic beverages covered by the mark applied for are, in general, significantly stronger and considerably more expensive than ‘those wines which are the most accessible to the public at large’, with the result that the Court’s findings are not applicable to the present case.
58. As regards the decision of the Opposition Division of OHIM of 26 July 2011 in Case B 1752545 – ‘Don Angel’  and the decision of the First Board of Appeal of OHIM of 4 May 2011 in Case R 1632/2010-1, relied on by the applicant, it must be found at the outset that they reveal only the existence of a not entirely consistent decision-making practice on the part of OHIM. As the intervener observes, those decisions are contradicted by the decision of the Opposition Division of 16 January 2008 in Case B 767 741 concerning opposition proceedings between the same parties in respect of an application for registration of the word mark MATADOR, covering the same goods, and against which the applicant has not brought an action.
59. None the less, OHIM is under a duty to exercise its powers in accordance with the general principles of European Union law, such as the principle of equal treatment and the principle of sound administration.
60. In the light of those two principles, OHIM must, when examining an application for registration of a Community trade mark, take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not (see Case C-51/10 P Agencja Wydawnicza Technopol  v OHIM  [2011] ECR I-1541, paragraph 74 and the case-law cited).
61. The principles of equal treatment and sound administration must however be reconciled with the principle of legality.
62. Consequently, a party to proceedings before OHIM cannot rely, to his advantage and in order to secure an identical decision, on an unlawful act committed to the benefit of someone else (see, to that effect, Agencja Wydawnicza Technopol  v OHIM , paragraph 76 and the case-law cited).
63. In any event, contrary to what was decided by the Opposition Division and by the Board of Appeal of OHIM in the decisions relied on by the applicant (so far as concerns beer and some other alcoholic beverages), but as was found to be the case in MEZZOPANE  (as regards wine and beer), the Court concludes that the goods at issue in the present case are not complementary within the meaning of the case-law (see paragraph 56 above). As already stated in that regard, that conclusion cannot be called into question by the fact that those goods may sometimes be mixed and consumed together, the ground on which the Opposition Division and Board of Appeal, in the decisions cited by the applicant, incorrectly relied in finding that the goods concerned were complementary.
64. Second, as regards the applicant’s complaint that the Board of Appeal incorrectly assessed the similarity between the alcoholic beverages covered by the mark applied for and the ‘mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ covered by the earlier marks, in paragraphs 32 to 40 of the contested decision, it must be stated at the outset that, mutatis mutandis , that assessment is fully in line with the Court’s assessment of the similarity between (i) wine and (ii) mineral and aerated waters and other non-alcoholic drinks, syrups and other preparations for making beverages and mixed lemonade-based drinks set out in paragraphs 79 to 91 of MEZZOPANE , with the result that the Court’s conclusions in that case concerning the comparison between those goods are applicable to the present case.
65. The fact that the average consumer in MEZZOPANE  was the average German consumer, whereas the average consumer in the present case is the average consumer in all of the countries in which the earlier marks are protected, is not relevant to the present case since the considerations set out in paragraphs 80 and 81 of that judgment are equally relevant for average consumers in all of the countries in question.
66. The same is true of the fact, put forward by the applicant, that the alcoholic beverages at issue in the present case do not include wine, as in MEZZOPANE , but tequila-based beverages. Far from rendering MEZZOPANE  irrelevant to the present case, that fact indeed reinforces its relevance. As already stated, so far as concerns beer and wine, in paragraph 51 above, the differences between the goods at issue in the present case, in respect of all the relevant factors relating to them, are far more substantial than the differences between wine and non-alcoholic beverages noted by the Court in MEZZOPANE , with the result that those differences make it very unlikely that the relevant public would believe that the same undertaking produces and markets the two types of beverage at the same time.
67. None of the considerations put forward by the applicant calls into question the validity of that assessment.
68. In so far as those considerations are based on new evidence annexed to the application, it must be borne in mind that they cannot be taken into account by the Court since they were not submitted to the Board of Appeal and do not constitute matters of common knowledge that the Court would have to take into account of its own motion (see paragraph 33 above).
69. As to the remainder, apart from a series of otherwise unsubstantiated claims, the applicant has not provided the Court with any arguments capable of showing that the Board of Appeal’s assessment is vitiated by error, in particular as regards the decisive character of the difference in nature between those goods, due to whether or not they contain alcohol and whether they are complementary or in competition with each other.
70. The existence of alcoholic cocktails and ‘premixed’ drinks which mix alcoholic beverages with a non-alcoholic ingredient does not remove the fundamental differences between those goods, for the reasons set out in paragraph 55 above. Moreover, the intervener correctly observes that the undertakings offering their alcoholic beverages mixed with a non-alcoholic ingredient so as to sell them as ‘premixed’ drinks do not sell that ingredient separately and under the same or similar mark as the alcoholic beverage at issue.
71. In the light of all the foregoing considerations, it must be concluded that the dissimilar elements of the goods at issue far outweigh the similar elements and the Board of Appeal’s assessment in paragraphs 29, 30, 39 and 40 of the contested decision must therefore be upheld.
72. For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, it must also be found that the differences identified between the goods at issue are sufficient in themselves to exclude the possibility of a likelihood of confusion and the Board of Appeal’s assessment in paragraphs 42 to 44 of the contested decision must therefore be upheld.
73. Since it has been concluded that the goods at issue in the present case are not similar, the plea in law alleging breach of Article 8(1)(b) of Regulation No 207/2009 must be rejected as unfounded, and the action therefore dismissed in its entirety, without it being necessary to rule on whether the signs at issue are identical or similar.
Costs
74. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
75. As the applicant has been unsuccessful, he must be ordered to pay, in addition to his own costs, those incurred by OHIM and the intervener, in accordance with the forms of order sought by those parties.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Holds that it is unnecessary to adjudicate on the action in so far as it seeks the annulment of the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 13 October 2010 (Case R 1162/2009-2) in so far as it accepted registration of the mark applied for in respect of ‘alcoholic beverages’;
2. Dismisses the action as to the remainder;
3. Orders Mustafa Yilmaz to bear his own costs and to pay those incurred by OHIM and by Tequila Cuervo, SA de CV.