Judgment — ECLI:EU:T:2018:482
Date: 2018-07-13
Language of the case: English
Court formation: Second Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Cyprus

Summary — Judgment of the General Court (Second Chamber), 13 July 2018 1. 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 — Distinctiveness or reputation of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) 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)) 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 of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) 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 — Coexistence of earlier marks — Recognition of a certain degree of distinctiveness of a national mark (Council Regulation No 207/2009, Art. 8(1)(b)) 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 — Figurative mark Pallas Halloumi and word mark HALLOUMI (Council Regulation No 207/2009, Art. 8(1)(b)) 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 — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) 7. 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 — Visual similarity between a figurative mark and a word mark (Council Regulation No 207/2009, Art. 8(1)(b)) 8. 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 — Weak distinctive character of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) 1. According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the 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 in question 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 covered. A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa. As is apparent from recital 8 of Regulation No 207/2009 on the EU trade mark (now recital 11 of Regulation 2017/1001), the assessment of the likelihood of confusion depends on numerous elements, in particular the public’s recognition of the trade mark on the market in question. The more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a high distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character. (see paras 23, 75, 76) 2. The likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009 on the EU trade mark, between two marks should not be assessed on the basis of a comparison of the signs in the abstract and the goods or services which they cover. The assessment of that risk must, instead, be based on the perception that the relevant public will have of those signs, goods and services. More specifically, according to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question. (see paras 24, 25) 3. The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, account being taken, in particular, of their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details. The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That may be the case, in particular, where that component is likely by itself to dominate the image which the relevant public retains of that mark, with the result that all the other components are negligible in the overall impression created by the mark. (see paras 27, 28) 4. The assessment of the distinctive character of a trade mark is of particular importance in so far as the assessment of the likelihood of confusion globally and that it implies some interdependence between the factors taken into account, with the result that the more distinctive the earlier mark, the greater will be the likelihood of confusion. Accordingly, a weak distinctive character requires a greater degree of similarity between the signs or between the goods and services concerned in order to find that there is a likelihood of confusion. Where an opposition is based on the existence of an earlier national mark, the checks on the degree of distinctiveness of that mark have limits, however, since they cannot lead to a finding of one of the absolute grounds for refusal set out in particular in Article 7(1)(b) and (c) of Regulation No 207/2009 on the EU trade mark, that is to say, a lack of distinctiveness or the purely descriptive character of that mark. Thus, if Article 8(1)(b), read in conjunction with Article 8(2)(a)(ii) of Regulation No 207/2009 is not to be infringed, it is necessary to acknowledge that an earlier national mark on which an opposition against the registration of an EU trade mark is based has a certain degree of distinctiveness. (see paras 36, 37) 5. See the text of the decision. (see paras 41-43, 47, 51-53, 59-68, 83, 84) 6. See the text of the decision. (see para. 50) 7. See the text of the decision. (see para. 58) 8. A finding that the earlier mark has a weak distinctive character does not preclude a finding that there is a likelihood of confusion. Although the distinctive character of the earlier mark must be taken into account in assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Thus, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered. (see para. 77)