Judgment — ECLI:EU:T:2017:636
Date: 2017-09-21
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - successful

Judgment of the General Court (Fifth Chamber) of 21 September 2017 — Novartis v EUIPO — Meda (Zimara) (Case T‑238/15) (EU trade mark — Opposition proceedings — Application for the EU word mark Zimara — Earlier EU word mark FEMARA — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 — Article 75 of Regulation No 207/2009 — Article 76(1) of Regulation No 207/2009 — Obligation to decide on the entirety of the appeal — First sentence of Article 64(1) of Regulation No 207/2009) 1. EU trade mark — Appeals procedure — Decision on the appeal — Board of Appeal’s obligation — Scope — Appeal not ruled upon in its entirety — Infringement of an essential procedural requirement — Consequences (Council Regulation No 207/2009, Art. 64(1)) (see paras 28-30) 2. EU trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits (Council Regulation No 207/2009, Art. 65(2) and (3)) (see paras 34, 35) 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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 44, 45, 164) 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 — Assessment of the likelihood of confusion — Level of attention of the public — Medicinal products (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 51, 59, 63, 64, 66, 69, 70) 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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 72) 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 — Likelihood of confusion with the earlier mark — Similarity of the marks concerned (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 86, 97) 7. EU trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Opposition proceedings — Examination restricted to the submissions of the parties — Well-known facts taken into account (Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Art. 1, Rule 20(2)) (see paras 114-116, 118, 123) 8. EU trade mark — Procedural provisions — Statement of reasons for decisions — First sentence of Article 75 of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU — Essential formality (Art. 296 TFEU; Council Regulation No 207/2009; First sentence of Art. 75) (see paras 120, 122) 9. EU trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of EUIPO — Examination by the Board of Appeal — Scope (Council Regulation No 207/2009, Art. 62(1)) (see para. 128) 10. EU trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 129) 11. EU trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Scope — Obligation to prove matters within common knowledge — None — Dispute before the General Court — Submission of documents to demonstrate the accuracy of a well-known fact (Council Regulation No 207/2009, Art. 76(1)) (see para. 136) 12. 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 Zimara and FEMARA (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 165, 168, 170-172) Re: Action brought against the decision of the Fifth Board of Appeal of EUIPO of 06 March 2015 (Case R 636/2014-5) relating to opposition proceedings between Novartis and Meda. Operative part The Court 1. Annuls the Decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 6 March 2015 (Case R 636/2014-5) in so far as the Board of Appeal failed to rule on the appeal before it as regards ‘veterinary preparations’; 2. Dismisses the action as to the remainder; 3. Orders each party to bear its own costs.