Judgment — ECLI:EU:T:2013:264
Date: 2013-05-17
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

JUDGMENT OF THE GENERAL COURT (Seventh Chamber) 17 May 2013 (*) (Community trade mark – Opposition proceedings – Application for Community word mark JULIUS K9 – Earlier national figurative mark K9 – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009) In Case T‑231/12, Rocket Dog Brands LLC, established in Hayward, California (United-States), represented by C. Aikens, barrister, applicant, v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by Ó. Mondéjar Ortuño, acting as Agent, defendant, the other party to the proceedings before the Board of Appeal of OHIM being Julius-K9 bt, established in Szigetszentmiklós (Hungary), ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 21 March 2012 (Case R 1124/2011-4), relating to opposition proceedings between Rocket Dog Brands LLC and Julius-K9 bt, THE GENERAL COURT (Seventh Chamber), composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (Rapporteur), Judges, Registrar: E. Coulon, having regard to the application lodged at the Registry of the General Court on 30 May 2012, having regard to the response lodged at the Registry of the General Court on 31 August 2012, having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from the notification of the closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the General Court, gives the following Judgment Background to the dispute 1 On 11 September 2009, Julius-K9 bt filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1). 2 The mark for which registration was sought is the word sign JULIUS K9. 3 The goods in respect of which registration was sought are in Classes 18 and 25 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description: – Class 18 – ‘Clothing for animals; harness fittings; harness for animals; dog collars; muzzles; clothing for animals; collars for animals’; – Class 25 – ‘Swimming costumes; bathing trunks; clothing made from imitations of leather; motorists’ clothing; clothing; iron fittings for shoes; teddies [undergarments]; ladies’ dresses; masquerade costumes; fishermen’s smocks (fishing vests); football boots; studs for football boots (shoes); galoshes; gaiters; money belts [clothing]; belts [clothing]; money belts; clothing for gymnastics; gymnastic shoes; half-boots; neckerchiefs; gloves [clothing]; slippers; ladies’ shirts; shirt yokes; shirts; slips [undergarments]; wooden shoes; trousers; jackets; ready-made clothing; headgear; ties; leather clothing; clothing of imitation leather; underwear; sweat absorbent underclothing (underwear); coats; caps; jump suits; pullovers; raincoats; skirts; shawls; aprons; briefs; socks; sports (boots for -); sports shoes; boots; headbands [clothing]; sweaters; pockets for clothing; t-shirts; uniforms; underpants; underwear; underwear; waistcoats; fishermen’s smocks (fishing vests)’. 4 The application for a Community trade mark was published in Community Trade Marks Bulletin No 65/2010 of 13 April 2010. 5 On 9 July 2010, the applicant, Rocket Dog Brands LLC, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 against registration of the trade mark applied for in respect of the goods referred to in paragraph 3 above. 6 The opposition was based on the following earlier trade marks: – The Community figurative mark, registered under number 6494892, and reproduced below, covering goods falling within Classes 18 and 25 of the Nice Agreement and corresponding, for each of those classes, to the following description: – Class 18 – ‘Leather goods, namely, leather briefcases, leather key cases, tote bags, backpacks, purses and handbags; leather and imitations of leather, and goods made of these materials and not included in classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery; handbags, rucksacks, purses; clothing for animals’; – Class 25 – ‘Footwear; apparel, namely, shirts, jackets, coats, sweaters, ties, scarves, vests, dresses, skirts, trousers, short pants, gloves, mittens, undergarments, lingerie, socks, pyjamas, bathing suits, belts, active wear in the nature of sweat pants, sweatshirts and jogging suits, leisure wear in the nature of robes, tops, bottoms, gloves and hosiery; headgear, namely, hats, caps, and headbands; clothing, footwear, headgear.’ – The Community figurative mark, registered under the number 3933256 and reproduced below, covering goods falling within Class 25 of the Nice Agreement and corresponding to the following description: ‘Footwear, women’s footwear’. 7 The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 207/2009. 8 By decision of 28 March 2011, the Opposition Division rejected the opposition in its entirety. 9 On 27 May 2011, the applicant filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division. 10 By decision of 21 March 2012 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal. First of all, the Board of Appeal found that the goods at issue in Classes 18 and 25 were identical. Next, the Board of Appeal considered that the word ‘julius’ in the trade mark applied for was dominant and that the alphanumeric combination ‘K9’ in it was secondary. The Board of Appeal held that the distinctive graphic elements from the earlier marks were dominant. Further, the Board of Appeal pointed out that the marks at issue were visually dissimilar given the lack of correspondence between their dominant and eye-catching elements and given that their respective structures were completely different. In addition, the Board of Appeal found that the marks at issue were phonetically similar to a below average degree since the word ‘julius’ was present in the mark applied for and since the earlier marks contained graphic elements which were not pronounced. Further, it considered that the marks were not conceptually similar because there were no features related to dogs in the mark applied for. Finally, when assessing overall the likelihood of confusion, the Board of Appeal found that, despite the identical nature of the goods concerned, there was no likelihood of confusion given the visual dissimilarity of the marks at issue, the below average degree of their phonetic similarity, the average distinctiveness of the earlier marks and the normal level of attentiveness of the relevant public. Forms of order sought by the parties 11 The applicant claims that the Court should: – annul the contested decision in so far as it rejects the opposition in relation to all the goods in Class 25; – order the other party to the proceedings before the Board of Appeal to pay the costs of the proceedings. 12 OHIM contends that the Court should: – dismiss the application for annulment in its entirety; – order the applicant to pay the costs which OHIM has incurred. Law 13 At the outset, it is important to make clear that the applicant is challenging the decision only in respect of the Board of Appeal’s finding that there was no likelihood of confusion in so far as the marks at issue were registered for the goods in Class 25. 14 The applicant essentially raises a single plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. In support of its first plea, the applicant raises three complaints. The first complaint alleges that the Board of Appeal erred in its comparison of the overall impression made by the trade mark applied for and the earlier marks. The second complaint is based on the failure to take into account the distinctive character of the earlier marks and, in particular, their alphanumeric element. In the third complaint, the Board of Appeal is accused of having failed to take account of the judgment of the Court of Justice in Case C‑120/04 Medion AG v Thomson multimedia Sales Germany & Austria (THOMSON LIFE) [2005] ECR I‑8551). OHIM disputes the applicant’s arguments. 15 As set out in Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an earlier trade mark and because of the identity or similarity of the goods or services covered by the two trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 16 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 that same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and the goods or services concerned and account being taken of all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered (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). 17 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). 18 The question whether the Board of Appeal was correct to find that there was no likelihood of confusion must be examined in the light of the above considerations. 19 In the present case, the Board of Appeal was correct in its assessment, which has moreover not been disputed by the applicant, that the relevant public in respect of which the likelihood of confusion must be analysed is the average consumer of the products at issue in the European Union. The average consumer must be deemed to be reasonably well informed and reasonably observant and circumspect. Further, the Board of Appeal correctly found that the products at issue were partially identical and partially similar, a finding which was not contested by the applicant. 20 However, the parties disagree on whether the signs at issue were similar. 21 First of all, so far as comparison of the signs is concerned, it must be recalled that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of such a likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 35 and the case-law cited). 22 Accordingly, 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 (see OHIM v Shaker, cited at paragraph 21 above, paragraph 41 and the case-law cited). 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 (OHIM v Shaker, cited at paragraph 21 above, paragraph 42, and judgment of 20 September 2007 in Case C‑193/06 P Nestlé v OHIM, not published in the ECR, paragraph 42). 23 Lastly, with regard to the assessment of the dominant character of one or more given components of a composite trade mark, account must be taken, in particular, of the inherent qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the mark (Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 35, and judgment of 8 February 2007 in Case T‑88/05 Quelle v OHIM – Nars Cosmetics (NARS), not published in the ECR, paragraph 57). 24 In the present case, it must be recalled that the trade mark applied for is a word mark which consists of the forename ‘julius’ and the alphanumeric combination ‘K9’. As regards the earlier composite marks, they are both made up of a black rectangle. The rectangle of the first mark (registered under No 6494892) contains a highly stylised dog’s head with prominent pointed teeth, under which there are two crossed bones themselves placed above the alphanumeric combination ‘K9’. The rectangle of the second mark (registered under No 3933256) contains the representation of a highly stylised dog with a bone between pointed teeth, under which there is the alphanumeric combination ‘K9’. 25 It should also be recalled that, in the contested decision, the Board of Appeal, first of all, took the view that the word ‘julius’ in the trade mark applied for was the dominant element of that mark. As regards the earlier marks, the Board of Appeal noted that the figurative elements of a dog (earlier mark registered as No 3933256), of a dog’s head (earlier mark registered as No 6494892) and of bones constituted the dominant elements of those marks, but that the alphanumeric combination ‘K9’ was not insignificant in that regard. Subsequently, the Board of Appeal found (i) that the marks at issue did not visually resemble one another taking account of their dominant and distinctive elements, (ii) that they were phonetically similar to a below average degree in so far as the trade mark applied for was composed of five syllables whereas the earlier marks had two and in so far as the graphic elements of the earlier marks were not pronounced and (iii) that they were not conceptually similar given the mark applied for did not have any feature related to dogs. 26 First, the parties do not agree as to what the possible dominant elements of the marks at issue are. In light of the relevance of that question to the assessment of the similarity of the signs at issue, the parties’ arguments must be examined before a comparison of those signs is undertaken. 27 The applicant argues, as part of its first complaint, that the alphanumeric combination ‘K9’ is the most dominant and distinctive element both in the trade mark applied for and in the earlier marks and that the Board of Appeal failed to give it the importance it deserved. 28 First of all, as the Board of Appeal and OHIM point out, the figurative elements in the earlier marks are fanciful, particularly stylised and striking, and their size is significantly bigger than the alphanumeric combination ‘K9’ situated below them. Accordingly, OHIM correctly points out that those figurative elements stand out in the earlier marks and thus constitute their dominant elements. 29 As regards the trade mark applied for, as the Board of Appeal points out, the word ‘julius’ is three times longer than the alphanumeric combination ‘K9’ and it is placed at the beginning. Further, the Board of Appeal was correct in finding that alphanumeric combinations consisting of one letter and one number are not easily remembered by the public. It correctly found that ‘julius’ is therefore the dominant element of the mark applied for. 30 Next, on the question of whether the principle set out by the Court of Justice in Medion, cited at paragraph 14 above, should be applied in the present case given that the alphanumeric combination ‘K9’ occupies an independent and distinctive role within the mark applied for, it must be pointed out that it is apparent from that judgment, beyond the usual case where the average consumer perceives a mark as a whole, and notwithstanding that the overall impression may be dominated by one or more components of a composite mark, it is quite possible that where a composite mark is composed by juxtaposing one element and another mark, that latter mark, even if it is not the dominant element in the composite mark, may still have an independent distinctive role in the composite mark and that, in such a case, the composite mark and that other mark may be considered to be similar (see, to that effect, Medion, cited at paragraph 14 above, paragraphs 30 and 37). 31 However, clearly in the present case, the trade mark applied for, JULIUS K9, is not composed by juxtaposing an element with one of the earlier marks. The mark applied for includes only one of the elements from the earlier marks, namely the alphanumeric combination ‘K9’ which, moreover, is not the element which is dominant in the overall impression of the earlier marks. In addition, as is clear from paragraphs 28 and 29 above, the Board of Appeal was correct in finding that the other elements of the earlier marks and of the mark applied for played a role in the overall assessment of the likelihood of confusion, such that the Board of Appeal examined the marks at issue in their entirety without focusing solely on the single alphanumeric combination ‘K9’ featured in each of the marks. Accordingly, the principle set out in Medion, cited at paragraph 14 above, referred to by the applicant, is not applicable in the present case and the third complaint, alleging failure to take into account the allegedly independent, distinctive role of the word ‘K9’, must be rejected. 32 Lastly, for a similar reason, the applicant’s argument that the elements ‘julius’ and ‘K9’ of the trade mark applied for do not blend together to form a coherent whole, but remain distinct and play an independent, distinctive role within that mark, cannot be accepted. Indeed, in addition to the finding made at paragraph 30 above that the element ‘K9’ does not have an independent, distinctive role within the trade mark applied for, it should be noted that, for the reasons set out at paragraph 29 above, the word ‘julius’ represents the dominant element in the trade mark applied for. 33 Second, it must be accepted, as it is by the Board of Appeal and OHIM, that, in the light of what is set out at paragraphs 28 and 29 above, the structure of the marks at issue is visually very different, the dominant elements of the marks at issue are not the same and, therefore, those marks are not similar. 34 Consequently, and contrary to what is claimed by the applicant, the fact that the earlier marks and the trade mark applied for contain the alphanumeric combination ‘K9’ is of little consequence in the context of the overall comparison of those marks and does not in itself permit the conclusion to be reached that there is visual similarity between the signs at issue. It must be observed that the visual impression given by two marks which share a common element may be different, in particular where the comparison concerns, on the one hand, a word mark, such as the mark applied for, and, on the other hand, a composite mark, such as the earlier marks, composed of strong figurative elements and an alphanumeric combination, which create a visual impression that is distinct from the element ‘K9’ in isolation (see, to that effect, Case T‑110/01 Vedial v OHIM – France Distribution (HUBERT) [2002] ECR II‑5275, paragraph 54, and Case T‑586/10 Aktieselskabet af 21. november 2001 v OHIM ‑ Parfums Givenchy (only givenchy), not published in the ECR, paragraph 33). It should also be noted that the existence of the word ‘julius’ in the mark applied for and the existence of the figurative elements which have an individual and original arrangement in the earlier marks, result in the overall impression conveyed by each sign being different (see, to that effect, Case T‑156/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO AIRE) [2003] ECR II‑2789, paragraph 73, and Case T‑317/01 M+M v OHIM - Mediametrie (M+M EUROdATA) [2004] ECR II‑1817, paragraph 72). 35 Accordingly, the Board of Appeal correctly concluded that the marks at issue were visually different. 36 Third, the applicant challenges the Board of Appeal’s finding that the marks at issue are phonetically similar to a below average degree. It points out that the trade mark applied for appropriates the distinctive alphanumeric combination ‘K9’ from the earlier marks and ‘merely adds to it the house mark “JULIUS”’. 37 The applicant’s argument cannot be accepted. The Board of Appeal correctly observed that the word ‘julius’ in the trade mark applied for will be pronounced in three syllables in all relevant languages, that the alphanumeric combination will be pronounced according to the national language habits and that the figurative elements of the earlier mark will not be pronounced. It must also be held that the mark applied for is composed of three syllables more than the earlier marks. Consequently, the Board of Appeal was correct in its conclusion that the marks at issue were phonetically similar to a below average degree. 38 Fourth, the applicant contends that the marks are conceptually identical on the ground that the alphanumeric combination ‘K9’ is commonly used to refer to certain types of dogs and [related] goods. The applicant refers to an episode of a British highly successful UK television series broadcast in 1977 in which a robotic dog named ‘K-9’ appears for the first time, and claims that as a result of that use there has been for many years a strong mental association between the term ‘K9’ and the English word ‘canine’. 39 First, the Board of Appeal was correct in finding that, unlike the earlier marks, the trade mark applied for does not contain any figurative elements conveying the concept of a dog. The word element ‘K9’ in the mark applied for is only featured with another word, ‘julius’, which does not contain any direct or indirect conceptual reference to dogs. As OHIM points out, it cannot be inferred from the fact that the alphanumeric combination ‘K9’ and the English word ‘canine’ are pronounced in the same way, that that in itself creates a conceptual link with dogs. On the contrary, a consumer when confronted with the combination ‘K9’ in another context, such as in a clothes shop, will not immediately perceive that term as a reference to dogs. 40 In that regard, as OHIM correctly observes, the applicant has not provided evidence showing that the combination ‘K9’ is used in everyday language as a synonym for the word ‘dog’ or as a colloquial reference to that animal. The only reference provided by the applicant is to a robotic dog named ‘K-9’ from a television series broadcast in the United Kingdom, which is not sufficient to prove the existence of a strong mental association between the alphanumeric combination ‘K9’ and the English word ‘canine’. 41 In light of the above, it must be held that the marks are not conceptually similar. 42 It follows from all of these considerations that, contrary to the argument put forward by the applicant in the first complaint of its single plea, the Board of Appeal correctly assessed the importance of the alphanumeric combination ‘K9’ of the marks at issue when it made the visual, phonetic and conceptual comparisons of them. 43 In that connection, the applicant puts forward the argument that, in another case, the other party to the proceedings before the Board of Appeal itself filed an opposition to the registration of the Community trade mark K9, on the ground that there was an alleged likelihood of confusion with the earlier figurative Community trade mark Julius K-9, and argued that, contrary to what it has argued in the present case, the presence of the alphanumeric combination ‘K9’ in both marks was liable to give rise to such a likelihood of confusion. In essence, the applicant appears to allege that the Board of Appeal failed to take that fact into account in its examination of the similarity of the signs. 44 Such an argument is irrelevant. Indeed, although, in accordance with the principle of sound administration, it is for the adjudicating bodies of OHIM to take into account, when examining an application for registration of a Community trade mark, the decisions already taken in respect of similar applications and consider with particular care whether it should decide in the same way or not (see, to that effect, Case C‑51/10 P Agencja Wydawnicza Technopol v OHIM [2011] ECR I‑1541, paragraphs 73 and 74), such an obligation cannot be stretched so far as to take into account the arguments raised by a party made in the context of other proceedings which concern similar products. Indeed it is important to bear in mind that decisions concerning registration of a sign as a Community trade mark which the Boards of Appeal are called on to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and not discretionary powers (see, to that effect, Case T‑139/08 The Smiley Company v OHIM (Representation of half a smiley smile) [2009] ECR II‑3535, paragraph 36 and Joined Cases T‑582/11 and T‑583/11 Solar-Fabrik v OHIM (Premium XL), not published in the ECR, paragraph 30). 45 Fifth, the global assessment of the likelihood of confusion implies some interdependence of the relevant factors and, in particular, similarity between the trade marks and between 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 (Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 17, and Joined Cases T‑81/03, T‑82/03 and T‑103/03 Mast‑Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and Others) [2006] ECR II‑5409, paragraph 74). 46 In the present case, in the light of the examination of the similarity between the marks at issue, the Board of Appeal was correct to find, in paragraphs 33 and 34 of the contested decision, that it could not be considered that there was a likelihood of confusion. 47 Indeed, even if there is a similarity between the goods covered by the marks at issue, those marks are visually and conceptually different and are only phonetically similar to a below average degree. Those elements constituted sufficient grounds to rule out a likelihood of confusion on the part of the relevant public. 48 In that regard, in relation to the second complaint, the applicant claims that, when it assessed the overall likelihood of confusion, the Board of Appeal should have considered that the earlier marks possessed a higher than average distinctive character for goods in class 25 which they covered, given that the alphanumeric combination ‘K9’ made no sense in relation to the products referred to by the earlier marks. 49 That argument cannot be accepted. 50 It is true that OHIM was required to examine the inherently distinctive character of an earlier mark, if necessary of its own motion, once opposition proceedings had been brought. The assessment of inherently distinctive character does not presuppose any matter of fact which is up to the parties to establish. Moreover, that assessment does not require the parties to provide facts, arguments or evidence tending to establish that inherently distinctive character, since OHIM is able to detect and assess the existence thereof having regard to the earlier mark on which the opposition is based (Case T-57/03 SPAG v OHIM – Dann and Backer (HOOLIGAN) [2005] ECR II‑287, paragraph 32, and NARS, cited at paragraph 23 above, paragraph 75). 51 However, in the present case, the fact that the contested decision does not expressly address that question can only be interpreted as meaning, implicitly, that OHIM did not attribute to the earlier marks an above‑average degree of distinctiveness which it should then have pointed out of its own motion. In that regard, the decision is not unlawful. The high degree of distinctiveness of a trade mark in the light of its inherent qualities is not to be inferred from the mere fact that the trade mark is sufficiently original to function as a mark (see, to that effect, Case T‑99/01 Mystery Drinks v OHIM – Karlsberg Brauerei (MYSTERY) [2003] ECR II‑43, paragraph 34, and NARS, cited at paragraph 23 above, paragraph 76). 52 The applicant’s argument that the word ‘K9’ will be understood in the sense of the English word ‘canine’, even if it were proven, cannot lead to the conclusion that the inherently distinctive character of the earlier marks in relation to the products that they referred to would be increased. The earlier marks in question have the level of inherent distinctiveness of any mark which does not describe the goods it refers to and their level of distinctiveness is not above average (see, to that effect, NARS, cited at paragraph 23 above, paragraph 76). Accordingly, the second complaint, alleging the failure to take into account the supposedly inherently distinctive character of the earlier marks, must be dismissed. 53 In the light of all the foregoing, the single plea alleging infringement of Article 8(1)(b) of Regulation No 207/2009 must be dismissed. Accordingly, the application must be dismissed. Costs 54 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay OHIM’s costs, in accordance with the form of order sought by OHIM. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the application; 2. Orders Rocket Dog Brands LLC to pay the costs. Dittrich Wiszniewska-Białecka Prek Delivered in open court in Luxembourg on 17 May 2013. [Signatures] * Language of the case: English.