Judgment — ECLI:EU:T:2019:410
Date: 2019-06-13
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - successful

Judgment of the General Court (Ninth Chamber) of 13 June 2019 – Pet King Brands v EUIPO — Virbac (SUIMOX) (Case T‑366/18) (EU trade mark — Opposition proceedings — Application for EU word mark SUIMOX — Earlier EU word mark ZYMOX — Obligation to state reasons — Notification of a decision of the Board of Appeal — Good faith and diligence on the part of the addressee — Article 94(1) of Regulation (EU) 2017/1001 — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation 2017/1001) 1. EU trade mark — Procedural provisions — Statement of reasons for decisions — Scope — Existence of clear shortcomings in the decision notified by the Board of Appeal — Obligation of the recipient to report such shortcomings to the Board — Good faith and diligence of the recipient (European Parliament and Council Regulation 2017/1001, Art. 94(1), 1st sentence) (see para. 17) 2. EU trade mark — Procedural provisions — Notification — Notification by fax (see paras 19, 20) 3. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks SUIMOX and ZYMOX (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 23, 43, 83, 92, 98, 107, 112, 113, 116, 123) 4. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 46-48, 84, 101, 103, 108) 5. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment — Complementary nature of the goods or services (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 53, 54, 63) 6. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 87, 96, 97) Re: Action brought against the decision of the Fifth Board of Appeal of EUIPO of 21 March 2018 (Case R 1835/2017-5), relating to opposition proceedings between Pet King Brands and Virbac. Operative part The Court: 1. Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 March 2018 (Case R 1835/2017-5) in so far as it concerns ‘veterinary preparations; the aforesaid goods not including ear drops for animals’, ‘veterinary preparations and animal health care products, including antibiotics for animals; the aforesaid goods not including ear drops for animals’ and ‘preparations for destroying vermin; the aforesaid goods not including ear drops for animals’; 2. Dismisses the action as to the remainder; 3. Orders each party to bear its own costs.