Judgment — ECLI:EU:T:2015:446
Date: 2015-06-30
Language of the case: Spanish
Court formation: Fourth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Spain

Summary — Judgment of the General Court (Fourth Chamber), 30 June 2015 Community trade mark — Definition and acquisition of the Community 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)) Likelihood of confusion is the risk that the public might believe that goods or services come from the same undertaking, or from economically-linked undertakings. It must be assessed on an overall basis, according to the relevant public’s perception of the signs and goods or services concerned, 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. Amongst those relevant factors, the coexistence of two marks on a market may be taken into account since it is accepted that, together with other elements, it may contribute to diminishing the likelihood of confusion between those marks on the part of the relevant public. Although it is undoubtedly for the proprietor of the contested trade mark to demonstrate during the proceedings before OHIM concerning relative grounds for refusal that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public between the mark upon which the proprietor relies and the earlier mark on which the application for annulment is based, it is open to such a proprietor to advance a body of evidence to that effect. In that regard, evidence demonstrating that the relevant public recognised each of the trade marks at issue before the time of filing the application for registration of the contested mark is particularly relevant. In addition, since it has already been held that the coexistence of two trade marks must be sufficiently long to be capable of influencing the perception of the relevant consumers, the duration of the coexistence also constitutes an essential factor. Moreover, any argument based on coexistence implies a priori, first, that the earlier trade marks are identical to the trade marks at issue, and, second, genuine use of the trade mark on which the applicant relies in the relevant territory. Furthermore, in so far as only peaceful coexistence between the trade marks at issue can be taken into account, any dispute between the proprietors of the earlier trade marks prevents a finding of coexistence. (see paras 68, 70, 80-82)