Judgment;Information — ECLI:EU:T:2021:124
Date: 2021-03-10
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Luxembourg

Judgment of the General Court (Ninth Chamber) of 10 March 2021 – Kerry Luxembourg v EUIPO – Ornua (KERRYMAID) (Case T‑693/19) (EU trade mark – Opposition proceedings – Application for EU word mark KERRYMAID – Earlier EU figurative mark Kerrygold – Relative ground for refusal – Geographical name – Dominant element – Peaceful coexistence – Article 8(1)(b) of Regulation (EC) No 207/2009 – Application of the law ratione temporis) 1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Re-evaluation of the facts in the light of evidence produced for the first time before it –Precluded (Council Regulation No 207/2009, Art. 65) (see paras 33, 34) 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 – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 40, 41, 133-135) 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 – Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 48, 52, 54, 89, 124) 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 – Similarity of the marks concerned – Assessment of the distinctive character of an element of which a trade mark is composed (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 53) 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 KERRYMAID and figurative mark Kerrygold (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 65-68, 94, 136-139, 145, 166) 6. EU trade mark – Definition and acquisition of the EU trade mark – Absolute grounds for refusal – Marks composed exclusively of signs or indications capable of designating the characteristics of a product or service – Assessment of the descriptive nature of a sign – Geographical names (Council Regulation No 207/2009, Art. 7(1)(c)) (see paras 78-80) 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 – Elements of a trade mark having a descriptive character (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 92, 146) 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 – Similarity of the marks concerned – Visual similarity between a figurative mark and a word mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 102) 9. 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 – Weighing elements of similarity or difference between the signs – Objective marketing considerations to be taken into account (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 142) 10. 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 on the market – Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 159, 160) Re: Action brought against the decision of the Fifth Board of Appeal of EUIPO of 23 July 2019 (Case R 2473/2013-5), relating to opposition proceedings between Kerry Luxembourg and Ornua. Operative part The Court: 1. Dismisses the action; 2. Orders Kerry Luxembourg Sàrl to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Ornua Co-operative Ltd