Judgment — ECLI:EU:T:2017:22
Date: 2017-01-24
Language of the case: English
Court formation: Third Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

Judgment of the General Court (Third Chamber) of 24 January 2017 — Rath v EUIPO — Portela & Ca. (Diacor) (Case T‑258/08) (EU trade mark — Opposition proceedings — Application for the EU word mark Diacor — Earlier national figurative mark Diacol PORTUGAL — Genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009) — Evidence in a language other than the language of the proceedings — Rule 22(4) of Regulation (EC) No 2868/95 (now Rule 22(6) of Regulation No 2868/95, as amended) — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009)) 1. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Partial use — Effect — Concept of ‘parts of the products or services’ covered by the registration (Council Regulation No 207/2009, Art. 43(2) and (3)) (see paras 34, 35) 2. 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 — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 49) 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 — Similarity between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 51) 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 — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 53, 55-57, 66) 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 — Likelihood of confusion with the earlier mark — Word mark Diacor and figurative mark Diacol PORTUGAL (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 69-74) Re: ACTION brought against the decision of the Second Board of Appeal of EUIPO of 30 April 2008 (Case R 1630/2006-2), relating to opposition proceedings between Portela & Ca. and Mr Rath. Operative part The Court: 1. Dismisses the action; 2. Orders Mr Matthias Rath to pay the costs.