Judgment — ECLI:EU:T:2015:362
Date: 2015-06-04
Language of the case: English
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Spain

summary form, coherently and intelligibly in the application itself. In that regard, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the relevant provisions, must appear in the application. That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court also applies to the conditions for admissibility of the response of the intervener, since, pursuant to Article 135 of the Rules of Procedure, read in conjunction with Article 46(1)(b) of those Rules, that response must contain the arguments of law and fact relied on (see, to that effect and by analogy, judgment of 24 May 2012 in MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraphs 69 and 70). Accordingly, in so far as the intervener makes no specific reference to particular paragraphs of its written submissions in which the arguments put forward in the proceedings before OHIM are set out, the general references to those written submissions must be declared inadmissible. 101 The intervener also contends that the components of tools such as ‘bits and cutting wheels’ can be used in hand-operated or machine-operated tools and that those components are therefore in competition with each other. However, the intervener adduces no evidence to show how the ‘bits and cutting wheels’ covered by the contested trade mark and the ‘PU hand float trowels’ covered by the earlier trade mark are competing products, particularly in view of their intended purpose. Consequently, it must be held that — as the applicant submits — those goods are not in competition with each other. 102 It follows from the foregoing that the points of dissimilarity between the goods in question outweigh the similarities and it must be concluded that the ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8 covered by the contested trade mark are neither complementary to nor in competition with the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark, nor are they interchangeable with those goods. Therefore there is not even a low degree of similarity between them. – Global assessment of the likelihood of confusion 103 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 covered. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998 in Canon, C‑39/97, ECR, EU:C:1998:442, paragraph 17, and 14 December 2006 in Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and Others), T‑81/03, T‑82/03 and T‑103/03, ECR, EU:C:2006:397, paragraph 74). 104 First, the Board of Appeal found that, for the goods covered by the contested trade mark referred to in paragraph 85 above, the signs at issue were sufficiently similar to create a likelihood of confusion between the marks at issue even if a part of the relevant public was particularly attentive and the degree of similarity between those goods was not particularly high (paragraph 84 of the contested decision). It annulled the Cancellation Division’s decision in that regard and declared the contested trade mark invalid in respect of the goods concerned (paragraphs 86 and 87 of the contested decision). 105 It has been found that the goods covered by the contested trade mark referred to in paragraph 85 above and the relevant goods covered by the earlier trade mark were dissimilar (see paragraph 102 above). Consequently, it must be held that one of the essential conditions for applying Article 8(1)(b) of Regulation No 207/2009 has not been satisfied. It follows that the Board of Appeal was wrong to conclude that there was a likelihood of confusion in that regard. 106 Secondly, it should be borne in mind that, regarding the ‘tools’ in Class 7 covered by the contested trade mark, the Board of Appeal, having held that the goods in question were similar, inferred from this that the signs at issue were sufficiently similar to create a likelihood of confusion between the marks at issue even if a part of the relevant public had a relatively high degree of attention (paragraph 84 of the contested decision). As those goods must in fact be held to be identical (see paragraph 84 above), that finding of the Board of Appeal regarding the global assessment of the likelihood of confusion must be upheld. 107 It follows from all of the foregoing that the third plea in law must be upheld in part and that the contested decision must be annulled in part, to the extent that it has declared the Community figurative mark STAYER invalid in respect of the ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8 covered by that trade mark. Costs 108 Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the General Court may order that the costs are to be shared or that each party is to bear its own costs. In the present case, the applicant, OHIM and the intervener have each failed on part of their heads of claim. Accordingly, each party must be ordered to bear its own costs. On those grounds, THE GENERAL COURT (Ninth Chamber) hereby: 1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 March 2013 (Case R 2196/2011-2) to the extent that it has declared the Community figurative mark STAYER invalid in respect of ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8; 2. Dismisses the action as to the remainder; 3. Orders OHIM, Stayer Ibérica, SA and ZAO Korporaciya ‘Masternet’ to bear their own costs. Berardis Czúcz Popescu Delivered in open court in Luxembourg on 4 June 2015. [Signatures] Table of contents Background to the dispute Forms of order sought Law Admissibility of certain documents submitted for the first time before the General Court Substance First plea in law: infringement of Article 76(2) of Regulation No 207/2009 Second plea in law: infringement of Article 15 of Regulation No 207/2009 Third plea in law: infringement of Article 8(1)(b) of Regulation No 207/2009 – The relevant public – Comparison of the signs – Comparison of the goods concerned – Global assessment of the likelihood of confusion Costs * Language of the case: English.