Judgment — ECLI:EU:T:2013:550
Date: 2013-10-23
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: France

summary, confirm the cancellation of the contested Community trade mark for goods in Classes 6, 11 and 21; – order the applicant to pay the costs. Law 16 The applicant puts forward two pleas in law. The first plea alleges infringement of Article 54(2) of Regulation No 207/2009. The second plea alleges infringement of Article 8(1)(b) of Regulation No 207/2009. The first plea, alleging limitation in consequence of acquiescence 17 By its first plea, the applicant alleges the limitation in consequence of acquiescence provided for in Article 54(2) of Regulation No 207/2009, inasmuch as the application for a declaration of invalidity based on the earlier mark was lodged on 12 May 2009, namely more than five years after the registration of the contested Community trade mark, on 6 March 2001. In that regard, it submits evidence in order to show that the intervener acquiesced for a period of more than five successive years in the use of the contested Community trade mark before the date of the application for a declaration of invalidity. 18 First of all, it should be borne in mind that Article 54(2) of Regulation No 207/2009 states, in essence, that, where the proprietor of an earlier national trade mark has acquiesced, for a period of five successive years, in the use of a later Community trade mark in the Member State in which the earlier trade mark is protected while being aware of such use, he is no longer entitled to apply for a declaration that the later trade mark is invalid or to oppose the use of the later trade mark. 19 Next, according to the case-law, four conditions must be satisfied before the period of limitation in consequence of acquiescence starts running if there is use of a later trade mark which is identical with the earlier trade mark or confusingly similar. First, the later trade mark must be registered. Second, the application for its registration must have been made by its proprietor in good faith. Third, the later trade mark must be used in the Member State where the earlier trade mark is protected. Fourth, the proprietor of the earlier trade mark must be aware of the use of that trade mark after its registration (see, by analogy, Case C‑482/09 Budějovický Budvar [2011] ECR I‑8701, paragraphs 54 and 56 to 58; judgment of 28 June 2012 in Case T‑134/09 Basile and I Marchi Italiani v OHIM – Osra (B. Antonio Basile 1952), not published in the ECR, paragraph 30). 20 Lastly, it should be noted that it is from the time when the proprietor of the earlier trade mark becomes aware of the use of the later Community trade mark that it has the option of not acquiescing in its use and, therefore, opposing it or seeking a declaration of invalidity of the later trade mark (see, to that effect, Budějovický Budvar, paragraph 19 above, paragraphs 44 to 50, and B. Antonio Basile 1952, paragraph 19 above, paragraph 31). 21 Accordingly, it is from the time when the proprietor of the earlier trade mark is made aware of the use of the later Community trade mark, after its registration, and not the date on which the application for the Community trade mark is filed, that the period of limitation in consequence of acquiescence starts running (see B. Antonio Basile 1952, paragraph 19 above, paragraph 32). 22 Moreover, it should be recalled that, according to the case-law, it results from the wording of Article 76(2) of Regulation No 207/2009 that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of Regulation No 207/2009 and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced late. However, it is equally apparent from that wording that a party has no unconditional right to have facts and evidence which were submitted out of time taken into account by OHIM. In stating that the latter ‘may’, in such a case, decide to disregard facts and evidence, Article 76(2) of Regulation No 207/2009 grants OHIM a wide discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account. Where OHIM is called upon to give a decision in the context of invalidity proceedings, taking such facts or evidence into account is particularly likely to be justified where OHIM considers, first, that the material which has been produced late is, on the face of it, likely to be relevant to the outcome of the application for a declaration of invalidity brought before it and, second, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not argue against such matters being taken into account (see, by analogy, Case C‑29/05 P OHIM v Kaul [2007] ECR I‑2213, paragraphs 41 to 44). 23 It is in the light of that case-law relating to Article 54(2) and Article 76(2) of Regulation No 207/2009 that it is necessary to analyse the first plea. 24 It is necessary at the outset to recall the arguments relating to the limitation in consequence of acquiescence which were put forward during the administrative procedure and the grounds of the contested decision on that point. 25 In its observations submitted before the Cancellation Division, the applicant relied, in the alternative, on Article 54(2) of Regulation No 207/2009. It submitted that the application for a declaration of invalidity concerned a mark registered on 5 May 1999 and that that mark had been used for 10 years in Spain without being challenged in any way whatsoever. 26 In its decision, the Cancellation Division stated that Article 54 of Regulation No 207/2009 requires that the proprietor of the earlier mark must have been aware of the use of the contested Community trade mark in the Member State in which its sign is protected. The Cancellation Division stated that it cannot be expected of a proprietor that it prove a negative fact, namely that it was unaware of the use of the contested Community trade mark in that Member State. It went on to observe that the applicant had not submitted any evidence in support of its allegation and concluded from this that the objection concerning limitation in consequence of acquiescence must be rejected. 27 In its appeal before the Board of Appeal, the applicant reiterated its arguments relating to the limitation in consequence of acquiescence and submitted for the first time several annexes – invoices sent to the intervener in respect of the years 2001 to 2004, the 2002 Marketing Book, disseminated by the applicant, listing data sheets of products under the contested Community trade mark as well as the 2003 prices, and invoices for 2005 and general sales conditions sent to a competitor of the intervener – in order to demonstrate that the intervener was aware of the use of the contested Community trade mark in Spain. 28 In paragraphs 13 to 16 of the contested decision, the Board of Appeal observes, first of all, that the evidence was submitted late and that, in accordance with Article 76(2) of Regulation No 207/2009, it would assess whether the late evidence is, on the face of it, likely to be relevant to the outcome of the invalidity proceedings, and whether or not the circumstances surrounding it argue against that evidence’s being taken into account. 29 Next, the Board of Appeal states in paragraph 17 of that decision that, as there was no evidence or line of reasoning that could have been examined by the Cancellation Division, as all the relevant facts must have been known to the applicant from the beginning of the cancellation proceedings, and as the documents submitted on appeal open up new questions or needs for clarification, it is equitable not to take the late evidence into account. 30 Lastly, in paragraphs 18 to 22 of the contested decision, the Board of Appeal observes that the applicant’s statements do not lead to the conclusion that there has been a limitation in consequence of acquiescence. The Board refers in that regard to the specific nature of the relationship between the parties – their commercial relationship amounting to a licence agreement – and states that the parties dispute when that relationship ended, how it ended and the identity of another undertaking which marketed goods in Spain under the Community trade mark. The Board adds that the late evidence postdates May 2004 and would not therefore be enough for the finding that there was an uninterrupted period of five years. 31 It must be stated that, by its first plea, the applicant alleges infringement solely of Article 54(2) of Regulation No 207/2009 and relies in that regard on evidence which the Board of Appeal considered, pursuant to Article 76(2) of Regulation No 207/2009, to have been submitted late and which it considered equitable not to take into account. 32 Accordingly, the Court considers that the applicant implicitly claimed that the Board of Appeal ought to have taken account of the evidence submitted before it. This plea should therefore also be understood as alleging infringement of Article 76(2) of Regulation No 207/2009. 33 As is apparent from the case-law cited in paragraph 22 above, Article 76(2) of Regulation No 207/2009 has granted the Board of Appeal a wide discretion to decide whether or not to take into account evidence submitted for the first time before it, while nevertheless being required to give reasons for its decision in that regard. Accordingly, it is necessary, in the first place, to examine whether the statement of reasons for the contested decision shows that the Board of Appeal exercised its discretion in deciding not to take into account the evidence submitted for the first time before it. 34 It must be stated that it can be seen from the statement of reasons set out in paragraphs 17 to 22 of the contested decision that the Board of Appeal exercised its discretion. 35 In the second place, it is necessary to consider whether, by deciding not to take into account the evidence submitted late – evidence which, according to the applicant, demonstrates the existence of a limitation in consequence of acquiescence – the Board of Appeal committed a manifest error of assessment. 36 First, the Board of Appeal was right to observe, in paragraph 17 of the contested decision, that all the relevant facts were known to the applicant from the beginning of the cancellation proceedings. Indeed, the applicant has produced nothing that might have suggested that it was not in a position to submit the evidence before the Cancellation Division in order to demonstrate the existence of acquiescence on the part of the intervener. 37 Second, the Board of Appeal was also right to observe in essence, in paragraph 17 of the contested decision, that the evidence submitted for the first time before it gave rise to new questions or required clarification. The Board of Appeal’s analysis in paragraphs 18 to 22 of the contested decision (see paragraph 30 above) highlights the complexity of the commercial relationship between the applicant and the intervener, the resulting difficulty in interpreting the evidence and, therefore, that it is impossible to consider that that evidence is, on the face of it, relevant to the issue of limitation in consequence of acquiescence and, consequently, to the outcome of the invalidity proceedings. 38 The Board of Appeal was therefore right to consider that the circumstances of the present case and the stage at which the late submission of those documents occurred precluded their being taken into account. 39 It is therefore necessary to consider whether the arguments put forward by the applicant are sufficient in themselves to demonstrate limitation in consequence of acquiescence. 40 First, in asserting that more than five years elapsed between 16 September 2001, the date of registration of the contested Community trade mark, and 12 May 2009, the date on which the application for a declaration of invalidity was lodged against that mark, the applicant submits in essence that the starting point of the period of limitation in consequence of acquiescence began to run from the registration of the contested Community trade mark. However, as is apparent from the case-law cited in paragraphs 20 and 21 above, that period of limitation in consequence of acquiescence starts to run from the time when the proprietor of the earlier trade mark is made aware of the use of the later Community trade mark. It was therefore incumbent on the applicant to demonstrate that the intervener had acquiesced in the use of the contested Community trade mark in Spain by adducing evidence of the intervener’s awareness of the contested trade mark dating from before May 2004. 41 Second, in order to demonstrate acquiescence in the use of the contested Community trade mark on the part of the intervener, the applicant relies on the commercial relationship that it had with the intervener since 1993 and on the fact that the intervener purchased goods under the French trade mark AQUA FLOW for several years with a view to marketing them in Spain. The fact that the intervener purchased goods under the French trade mark AQUA FLOW and that it was therefore aware of that mark does not however mean that it was aware of the Community trade mark or, a fortiori, that it acquiesced in the use thereof in Spain. In that regard, the late evidence submitted by the applicant in support of its arguments was not taken into account for the reasons set out in paragraphs 33 to 38 above. 42 It follows that the applicant has failed to demonstrate that the Board of Appeal infringed Article 54(2) of Regulation No 207/2009. 43 The plea must therefore be rejected. The second plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009 44 In the alternative, the applicant puts forward a second plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. 45 The applicant complains in essence that the Board of Appeal found that there was a likelihood of confusion between the marks at issue, whereas the conditions of Article 8(1)(b) of Regulation No 207/2009 were not fulfilled. In particular, the applicant submits that the marks at issue and the goods designated by those marks are different. 46 OHIM and the intervener dispute the applicant’s arguments. 47 Pursuant to Article 53(1)(a), in conjunction with Article 8(1)(b) of Regulation No 207/2009, a Community trade mark is to be declared invalid on application by the proprietor of an earlier trade mark if, because of its identity with or similarity to the earlier trade mark, and the identity or similarity of the goods or services covered by the 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. Furthermore, under Article 8(2)(a)(ii) of Regulation No 207/2009, earlier trade marks means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the Community trade mark. 48 According to settled case-law, the risk that the public might may 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 case-law, the likelihood of confusion must be assessed globally, 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 designated (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). 49 The question whether the Board of Appeal was correct to find that there was a likelihood of confusion between the marks at issue must be examined in the light of the foregoing considerations. The relevant public 50 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 the 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 Case T‑256/04 Mundipharma v OHIM – Altana Pharma (RESPICUR) [2007] ECR II‑449, paragraph 42 and the case-law cited). 51 In the present case, the Board of Appeal considered, in paragraph 44 of the contested decision, that the relevant public mainly consisted of Spanish professional consumers involved in the watering and irrigation industry, but also of members of the general public, such as Spanish do-it-yourself enthusiasts. The Board of Appeal took the view that the degree of attentiveness of the members of the general public was higher than average, given the long-lasting and technically sophisticated nature of the goods. That definition of the relevant public, which moreover is not disputed by the applicant, must be approved. The comparison of the goods 52 According to settled case-law, in order to assess the similarity of the goods or services concerned, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see Case T‑443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [2007] ECR II‑2579, paragraph 37 and the case-law cited). 53 The applicant claims, in essence, that the product in Class 11 designated by the earlier mark and the goods in Classes 6, 7, 9, 11, 17 and 21 designated by the contested Community trade mark are not similar. 54 First of all, the Court notes that only the goods in Classes 6, 11 and 21 designated by the earlier mark are concerned by the comparison. The application for a declaration of partial invalidity lodged by the intervener concerned the contested Community trade mark only in so far as it related to the goods in Classes 6, 11, 17 and 21. Accordingly, the applicant’s reference to the goods in Classes 7 and 9 is irrelevant. Moreover, the reference to the goods in Class 17 is not relevant either, since the Cancellation Division rejected the application for a declaration of invalidity of the contested Community trade mark in so far as it designated those goods and since that rejection was not contested by the intervener before the Board of Appeal. 55 Next, as is apparent from paragraph 28 of the contested decision, the ‘apparatus for distribution of water’ in Class 11 covered by the earlier mark is identical to ‘water supply, watering or irrigation installations’ in that same Class 11 designated by the contested Community trade mark. The Court agrees with the Board of Appeal’s observation that an installation is machinery or apparatus placed in position or connected for use and that, accordingly, those goods are identical. 56 For that reason, the applicant’s assertion that the earlier mark covers only the equipment (not defined) whereas the contested Community mark covers the mechanisms used to set up water distribution is incorrect. 57 Lastly, the Board of Appeal was right to take the view, in paragraph 29 of the contested decision, that the goods in Classes 6 and 21 designated by the contested Community trade mark are similar to an average degree to the product in Class 11 designated by the earlier mark. Those goods can be fittings and spare parts of apparatus for distribution of water and may therefore be complementary to that apparatus. According to the case-law, goods are complementary where they are closely connected in the sense that one is indispensable or important for using the other, so that consumers may think that the same company is responsible for manufacturing those goods (see judgment of 21 November 2012 in Case T‑558/11 Atlas v OHIM – Couleurs de Tollens (ARTIS), not published in the ECR, paragraph 25, and judgment of 4 February 2013 in Case T‑504/11 Hartmann v OHIM – Protecsom (DIGNITUDE), not published in the ECR, paragraph 44). 58 In that regard, the applicant unsuccessfully argues in essence that, unlike the goods in Classes 6 and 21 designated by the contested Community trade mark, the wording used to describe the product designated by the earlier mark does not make it possible to identify a specific use of the product and that it is not therefore possible to determine straight away what is covered by the term ‘apparatus for distribution of water’. The nature and specific purpose of the product covered by the earlier mark are sufficiently clear from its wording. As OHIM correctly observes, apparatus for distribution of water covers all devices, mechanisms and installations for delivering water. 59 Consequently, the Board of Appeal was entitled to take the view, without committing any error, that the goods designated by the contested Community trade mark in Class 11 are identical to the product designated by the earlier mark and that there is an average degree of similarity between that product and the goods designated by the contested Community trade mark in Classes 6 and 21. The comparison of the signs 60 The global assessment of the likelihood of confusion must, as far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood. 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). 61 At issue in the present case are the earlier figurative mark VAQUA FLOW and the contested Community figurative mark AQUA FLOW. 62 The Board of Appeal took the view that the marks at issue are visually and conceptually similar to an average degree and phonetically highly similar, which the applicant contests. 63 First, as regards the visual comparison of the signs, it must be stated that the word elements of the marks at issue have eight letters in common – namely ‘a’, ‘q’, ‘u’, ‘a’, ‘f’, ‘l’, ‘o’ and ‘w’ – that that they are both written in white capital letters and that their type fonts are highly similar. 64 It is true that the earlier mark is differentiated by the fact that its word element includes an additional letter, the ‘v’, which is positioned at the beginning of the word element. Although it is settled case-law that the consumer generally pays greater attention to the beginning of a mark than to the end (Case T‑133/05 Meric v OHIM – Arbora & Ausonia (PAM-PIM’S BABY-PROP) [2006] ECR II‑2737, paragraph 51), and Case T‑109/07 L’Oréal v OHIM – Spa Monopole (SPA THERAPY) [2009] ECR II‑675, paragraph 30), it cannot be inferred from this, however, that in the present case the difference resulting from the presence of the letter ‘v’ at the beginning of the earlier mark can prevent the signs at issue from being similar, since, first, the contested Community trade mark contains all the other letters of the earlier mark and, second, the consumer will not stop at the first letter, but will consider at least the first syllable. The following letter of the first syllables of the marks at issue is identical. Thus, the abovementioned difference between the marks at issue cannot counteract the similarities, and therefore is not capable of calling into question the finding that there is an average degree of visual similarity (see, to that effect, judgment of 16 December 2010 in Case T‑363/09 Longevity Health Products v OHIM – Gruppo Lepetit (RESVEROL), not published in the ECR, paragraph 27, and judgment of 22 May 2012 in Case T‑585/10 Aitic Penteo v OHIM – Atos Worldline (PENTEO), not published in the ECR, paragraph 67). 65 The argument that the graphic layout and the colours lead the two marks at issue to give a different visual impression cannot succeed. It should be noted that the word element of the earlier mark is juxtaposed with a black rectangular background whereas only the outline of the letters of the word element of the contested Community trade mark is in black. It must be stated that those figurative elements are not configured so elaborately that they might substantially influence the overall impression given by the sign applied for. Those figurative elements are likely to be perceived by consumers as being essentially decorative elements, and not as elements indicating the commercial origin of the goods. They are not therefore decisive for distinguishing the goods at issue in the mind of the relevant public (see, to that effect, judgment of 15 February 2011 in Case T‑213/09 Yorma’s v OHIM – Norma Lebensmittelfilialbetrieb (YORMA’S), not published in the ECR, paragraphs 78 and 79). 66 Second, as regards the phonetic comparison of the signs, the applicant contests the Board of Appeal’s conclusion that the marks at issue are phonetically highly similar. In its submission, the Board of Appeal fails to have regard in particular to the significance of the difference relating to the beginning of the marks at issue. The initial letter ‘v’ of the earlier sign differs considerably from the sound of the first letter ‘a’ of the contested Community trade mark. 67 In that regard, it should first of all be observed, as the Board of Appeal correctly found, that the two word elements are each composed of three syllables. Those syllables are pronounced according to the same rhythm and intonation and contain the same sequence of vowels ‘a’, ‘a’, ‘o’. Thus, the only feature distinguishing the signs at issue phonetically stems from the pronunciation of the additional consonant placed at the beginning of the word element of the earlier mark. 68 It must be observed that, although that distinguishing feature is at the beginning of the earlier word sign, it is not able to counteract the overall impression of phonetic similarity stemming from that fact that the group of letters ‘aquaflow’ of the mark applied for is included entirely in the earlier mark (see, to that effect, judgment of 9 September 2011 in Case T‑382/09 Ergo Versicherungsgruppe v OHIM – DeguDent (ERGO), not published in the ECR, paragraphs 54 and 55). Moreover, as the Board of Appeal rightly observes, the vowel ‘a’ which follows the letter ‘v’ has a stronger resonance. 69 Thus, it must be concluded that the Board of Appeal did not err in taking the view that the two signs at issue are phonetically highly similar. 70 Third, as regards the conceptual comparison of the signs, it should be borne in mind, as a preliminary point, that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, he will break it down into elements which, for him, suggest a concrete meaning or which resemble words known to him (RESPICUR, paragraph 50 above, paragraph 57). 71 As regards, in the first place, the contested Community trade mark, the Court agrees with the Board of Appeal’s observation that the contested trade mark refers to ‘aqua flow’ for the relevant consumer, which, moreover, the applicant has not called in question. 72 In the second place, as regards the earlier mark, it must be acknowledged that the term ‘vaqua’ present in the earlier mark contains the element ‘aqua’ which is very similar to the Spanish term ‘agua’. The earlier mark is registered for ‘apparatus for distribution of water’. Thus, the reference to water appears to be all the more evident given the nature of those goods. It follows that the relevant Spanish consumers will establish a link between the earlier mark and the goods that that mark designates and will see in that mark an allusion to the concept of ‘aqua flow’ (see, to that effect, judgment of 13 February 2008 in Case T‑146/06 Sanofi-Aventis v OHIM – GD Searle (ATURION), not published in the ECR, paragraph 59). That conclusion is not called into question by the applicant’s argument that the term ‘vaqua’ has no particular meaning. The term ‘vaqua’ can easily be likened to the term ‘aqua’ by the relevant consumer, in the light of the nature of the goods designated by the earlier mark. That reference to water will also be reinforced by the term ‘flow’, which, as the Board of Appeal states in paragraph 38 of the contested decision, is a basic English term commonly used in the watering sector the meaning of which will be identified by relevant consumers, who have a high level of attention. 73 Consequently, the Board of Appeal did not err in concluding that the marks at issue are conceptually similar to an average degree. The likelihood of confusion 74 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 the similarity of the goods or services concerned. 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). 75 In the present case, in so far as (i) the goods designated by the marks at issue are identical or similar and (ii) the signs at issue are visually and conceptually similar to an average degree and phonetically highly similar, the Board of Appeal was right to find that there is a likelihood of confusion on the part of the relevant public. 76 In that regard, the applicant argues unsuccessfully that the contested Community trade mark cannot be declared invalid in respect of the goods in Classes 6 and 21 that it designates on the ground that the earlier mark was never registered in respect of those goods in Spain. 77 First, the applicant cannot rely on the fact that the goods in question are in different classes since, as is clear from Rule 2(4) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 (OJ 1995 L 303, p. 1), the classification of goods and services is to serve exclusively administrative purposes and, therefore, goods and services may not be regarded as being dissimilar from each other on the ground that they appear in different classes under the Nice Classification (ARTIS, paragraph 57 above, paragraph 36). 78 Moreover, as is clear from paragraphs 55 to 59 above, the Board of Appeal was entitled to take the view, without committing any error, that the goods designated by the contested Community trade mark in Class 11 are identical to the product designated by the earlier mark and that there is an average degree of similarity between that product and the goods designated by the contested Community trade mark in Classes 6 and 21. 79 Consequently, the second plea in law must be rejected, as must, therefore, the action as a whole. Costs 80 Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 81 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by OHIM and the intervener, in accordance with the forms of order sought by them. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders SFC Jardibric to pay the costs. Dittrich Wiszniewska-Białecka Prek Delivered in open court in Luxembourg on 23 October 2013. [Signatures] * Language of the case: English.