Judgment — ECLI:EU:T:2010:18
Date: 2010-01-20
Language of the case: Finnish
Court formation: Eighth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Finland

summary of the pleas in law relied on. According to the case-law, that summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (Case T-127/02 Concept v OHIM (ECA) [2004] ECR II-1113, paragraph 17, and the case-law cited). 27 Furthermore, 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 abovementioned provision, must appear in the application (ECA, cited in paragraph 26 above, at paragraph 18, and the case-law cited). 28 In the present case, as regards, first of all, the similarity and differences between the signs at issue, the applicant merely stated in the application (paragraph 29): ‘The applicant will not elaborate on the differences and similarities of the respective marks because they are obvious to anyone and have been thoroughly addressed in the proceedings already. Therefore, and in order to keep within the required maximum number of pages, the applicant refers to the arguments and evidence filed before OHIM and the Board of Appeal.’ 29 Thus, the applicant identifies neither the specific points of the application that it wishes to supplement by this reference nor the documents in which its arguments are set out. 30 In those circumstances, it is not for the Court either to search in those documents and annexes for the arguments which the applicant could set out, or to examine them, as such arguments are inadmissible. 31 Secondly, as regards the arguments relating to the distinctive character of the earlier mark, it must be stated that, although the applicant referred, in paragraph 28 of the application, to the arguments and evidence submitted to OHIM, it set out, in particular in paragraphs 22 to 27 of the application, the arguments in support of the existence of a weak distinctive character of that mark. It is therefore on the basis of those arguments that the Court will examine the criticisms made of the contested decision. 32 However, for the same reasons as those set out in paragraphs 26 to 30 above, the Court cannot be required to examine ‘the arguments and evidence filed before OHIM and the Board of Appeal’ (paragraph 28 of the application), which were not identified or set out in the application. The application for annulment of the contested decision Arguments of the parties 33 The applicant raises a single plea alleging infringement of Article 8(1)(b) of Regulation No 40/94. 34 The applicant submits that the Board of Appeal erred by basing its decision on the judgment in Medion, cited in paragraph 11 above, since the cumulative conditions laid down by the Court of Justice are, it submits, absent in this case: the present case does not concern a mark combining an earlier mark with the name of an undertaking, the earlier mark does not have a normal distinctive character, and the earlier mark does not play an ‘independent role’ in the later mark. The applicant points out that, in the mark applied for, the word ‘blog’ is not the applicant’s company name. 35 The notion of ‘independent role’ of a mark means that the element which does not constitute the shared part of the marks at issue should also be capable of indicating the origin of the goods and services independently of the composite mark. By juxtaposing a new mark with the name of the company, the composite sign gives the impression that it relates to a certain range of goods from among that company’s goods and services. According to the applicant, the correct approach should have been, in accordance with the case-law of the General Court, to declare that, in order for a likelihood of confusion to exist, the element constituting the earlier mark was the dominant element in the mark applied for, which could not be the case with respect to the word ‘life’ in the latter, which is, it submits, less distinctive than the word ‘blog’. 36 Furthermore, the applicant argues, first, that, contrary to the finding of the Board of Appeal which took the view that the earlier mark had a normal distinctive character, that mark is a ‘weak mark’ and, second, that the Court of Justice, in the Medion judgment, could not make such a classification because the case was a reference for a preliminary ruling. Furthermore, it states that it was for the Board of Appeal to assess the distinctive character of the earlier mark. 37 Finally, the applicant submits that the element constituting the earlier mark is a word very frequently used in the sector concerned and that it coexists on the markets with respect to the relevant goods and consumers. 38 OHIM and the intervener contend that that plea should be rejected. Findings of the Court 39 Under Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered where ‘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’. 40 In addition, under Article 8(2)(a)(ii) of Regulation No 40/94 (now Article 8(2)(a)(ii) of Regulation No 207/2009), earlier trade marks means 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. 41 According to settled case‑law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings constitutes a likelihood of confusion (see judgment of 10 September 2008 in Case T‑325/06 Boston Scientific v OHIM – Terumo (CAPIO) [2008], not published in the ECR, paragraph 70, and the case‑law cited; see also, by analogy, Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 29, and Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraph 17). 42 In addition, it is common ground that the likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (see CAPIO, cited in paragraph 41 above, at paragraph 71, and the case‑law cited; see, by analogy, Case C‑251/95 SABEL [1997] ECR I‑6191, paragraph 22, Canon, cited in paragraph 41 above, at paragraph 16, and Lloyd Schuhfabrik Meyer, cited in paragraph 41 above, at paragraph 18). 43 That global assessment entails a certain 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 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‑234/06 P Il Ponte Finanziaria v OHIM [2007] ECR I‑7333, paragraph 48, and Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 25; see also, by analogy, Canon, cited in paragraph 41 above, at paragraph 17). The interdependence of those factors is expressly referred to in the seventh recital in the preamble to Regulation No 40/94 (now recital 8 in the preamble to Regulation No 207/2009), according to which the concept of similarity is to be interpreted in relation to the likelihood of confusion, the assessment of which depends on numerous elements and, in particular, on the recognition of the trade mark on the market, the association which can be made with the used or registered sign, the degree of similarity between the mark and the sign and between the goods or services identified (see CAPIO, cited in paragraph 41 above, at paragraph 72 and the case‑law cited). 44 Furthermore, the global assessment of the visual, aural or conceptual similarity of the signs at issue must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The wording of Article 8(1)(b) of Regulation No 40/94 – ‘there exists a likelihood of confusion on the part of the public’ – shows that the perception of marks in the mind of the average consumer of the type of goods or services in question plays a decisive role in the global assessment of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see CAPIO, cited in paragraph 41 above, at paragraph 73 and the case‑law cited; see also, by analogy, SABEL, cited in paragraph 42 above, at paragraph 23). 45 For the purposes of the global assessment of the likelihood of confusion, the average consumer of the goods concerned is deemed to be reasonably well informed, and reasonably observant and circumspect. Furthermore, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind. 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 (Case T‑104/01 Oberhauser v OHIM – Petit Liberto (Fifties) [2002] ECR II‑4359, paragraph 28, and Case T‑186/02 BMI Bertollo v OHIM – Diesel (DIESELIT) [2004] ECR II‑1887, paragraph 38; see also, by analogy, Lloyd Schuhfabrik Meyer, cited in paragraph 41 above, at paragraph 26). 46 In this case, the earlier mark is a national mark registered in Germany, with respect to which the contested decision was adopted. Therefore, as the Board of Appeal rightly held in paragraph 21 of the contested decision, the examination must be limited to German territory. 47 It is also common ground that the relevant public is, as the Board of Appeal also rightly held in paragraph 21 of the contested decision, constituted by the average German consumer who is deemed to be reasonably well informed, and reasonably observant and circumspect. However, as some of those products may be expensive items, the public will necessarily pay more attention. Those findings, which were not challenged by the parties, must be upheld. 48 It is in the light of the foregoing considerations that the Board of Appeal’s assessment of the likelihood of confusion between the signs in dispute must be examined. The similarity of the goods and services 49 In this connection, it suffices to state that the position adopted by the Board of Appeal, in paragraph 18 of the contested decision, which refers to the Opposition Division’s analysis, must be approved, since the applicant has not made any criticism of the contested decision as regards the identity or similarity of the goods and services concerned. The similarity of the signs 50 As has already been stated in paragraph 44 above, the global assessment of the likelihood of confusion must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression which they create, bearing in mind, in particular, their distinctive and dominant components (see Case T‑292/01 Phillips‑Van Heusen v OHIM – Pash Textilvertrieb und Einzelhandel (BASS) [2003] ECR II‑4335, paragraph 47, and CAPIO, paragraph 41 above, at paragraph 88 and the case‑law cited; see, by analogy, SABEL, cited in paragraph 42 above, at paragraph 23). 51 It is also clear from the case‑law that two marks are similar where, from the point of view of the relevant public, they are at least in part identical as regards one or more relevant aspects (MATRATZEN, cited in paragraph 43 above, at paragraph 30, and CAPIO, cited in paragraph 41 above, at paragraph 89; see also, by analogy, SABEL, cited in paragraph 42 above, at paragraph 23). 52 The Board of Appeal held, in paragraph 36 of the contested decision, that, on the basis on a global assessment, the marks at issue were similar. That assessment must be upheld. 53 In that connection, it must be pointed out that the signs to be compared are LIFE and LIFE BLOG. 54 First, as regards the visual comparison, it must be stated that the mark applied for is composed of two words, written in capitals, of eight letters. The earlier mark is composed of a single word, also written in capitals, of four letters. However, those differences are offset by the fact that the word ‘life’ is common to both signs and is the faithful reproduction of the earlier mark. 55 Visually, there is a degree of similarity between the marks at issue because the earlier trade mark is the first component of the mark applied for. Furthermore, since the two marks are word marks, they are both written in a non-stylised way for the purposes of any assessment of their visual similarity. Thus, the average consumer, who must normally rely on his imperfect mental image of the trade marks, could confuse the marks in question from a visual perspective (see, to that effect, Case T-22/04 Reemark v OHIM – Bluenet (Westlife) [2005] ECR II-1559, paragraph 34). 56 Second, as regards the aural comparison, it must be observed that the mark applied for consists of two words and the earlier mark of one. Therefore, the two signs are pronounced differently. However, on account of the fact that the first word of the mark applied for and the only word of the earlier mark are identical and are pronounced in the same way, there is a degree of aural similarity between the two signs taken in their entirety (judgment of 27 September 2007 in Case T‑418/03 La Mer Technology v OHIM – Laboratoires Goëmar (LA MER) [2007], not published in the ECR, paragraph 123). 57 Third, as regards the conceptual comparison, it must be stated that, as far as the word ‘life’ is concerned, the latter is an English word in everyday usage which may be easily understood by the average German-speaking public. Associated with all the goods and services concerned, the word ‘life’ refers to the concept of life rather than to a specific lifespan of those goods and services. The same conceptual content is found in the mark applied for, which refers, at least for those who understand the meaning of the word ‘blog’, to a personal online diary. 58 It must be held, as OHIM has observed, that the additional concept ‘blog’ which is attached to the mark applied for is not able to supplant the reference to the concept of life which is common to both signs, which cannot be regarded as being of little or no importance, so that there is a degree of conceptual similarity between the signs at issue. The likelihood of confusion 59 It should be borne in mind that a likelihood of confusion exists if, cumulatively, the degree of similarity between the trade marks in question and the degree of similarity between the goods or services covered by those marks are sufficiently high (MATRATZEN, cited in paragraph 43 above, at paragraph 45). 60 In that connection, even if it is true that consumers normally attach more importance to the beginning of words since they are more pronounced (see, to that effect, judgment of 27 February 2008 in Case T-325/04 Citigroup v OHIM – Link Interchange Network (WORLDLINK), not published in the ECR [2008], paragraph 82), it must be stated that neither of the two elements ‘life’ or ‘blog’ emerges clearly as the dominant element of the mark applied for in this instance. In that regard, it would be artificial to consider ‘life’ to be dominant because it is the first element of the mark applied for, but nor is there any reason to regard the ‘blog’ element as dominant (see, to that effect, Westlife, cited in paragraph 55 above, at paragraph 36). 61 Furthermore, it must be added, first, that it cannot reasonably be argued that the word ‘life’ is in any way descriptive of the goods and services referred to. 62 Second, as regards ‘blog’, a distinction must be made according to the goods and services concerned. Applied to IT or telecommunications goods or services, ‘blog’ must be considered as having a limited distinctive character since, by reference to that area, that word is usually understood, even by the average German consumer of those goods or services, as referring to an online diary (weblog). In that category, the word ‘life’ has a greater distinctive character than the word ‘blog’. 63 However, as regards all the other goods or services which do not imply an IT or telecommunications element, and in regard to which the word ‘blog’ has no meaning, it must be held that neither of the two elements ‘life’ or ‘blog’ emerges clearly as the element with the most distinctive character. However, as OHIM has rightly observed, the greater degree of inherent distinctiveness of ‘blog’ will, assuming it is established, be somewhat offset by the fact that ‘life’ is at the beginning of the sign, as the public’s attention is usually concentrated on the beginning of the sign applied for. 64 In this case, it has already been held in paragraph 49 above that the goods and services concerned are partly identical and partly similar. Furthermore, having regard to the findings set out in paragraphs 60 to 63 above, the overall impression made by the signs at issue is liable to create, between them, a similarity sufficient to give rise to a likelihood of confusion on the part of the consumer. Moreover, even assuming that the relevant public, including the public which shows a higher level of attention, may distinguish the signs at issue, it could nevertheless, as OHIM states, be led to believe that the marks come from the same undertaking or, as the case may be, from economically-linked undertakings, identified by the word ‘life’. 65 As is apparent from paragraph 60 above, there is no ground for the assertion that, in this case, ‘life’ is less prominent than ‘blog’ in the mark applied for. It appears, in this case, that the difference between the two signs at issue as regards the last word of the mark applied for is insufficient to offset the similarity established between one of the two elements of the mark applied for and the single element of which the earlier mark is composed. 66 Furthermore, it must be recalled that, in this case, although there is a real conceptual difference between the signs, it cannot be regarded as making it possible to neutralise the visual and aural similarities previously established (see, to that effect, Case C-16/06 P Éditions Albert René [2008] ECR I-0000, paragraph 98). 67 Finally, the applicant has not been able to prove that the distinctive character of the earlier mark has been reduced, since evidence of the coexistence of marks containing the word ‘life’ was not adduced. 68 Admittedly, the possibility cannot be entirely excluded that, in certain cases, the coexistence of earlier marks on the market could reduce the likelihood of confusion which the Opposition Division and the Board of Appeal find exists as between two marks at issue. However, that possibility can be taken into consideration only if, at the very least, during the proceedings before OHIM concerning relative grounds of refusal, the applicant for the Community trade mark duly demonstrated that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public between the earlier marks upon which it relies and the intervener’s earlier mark on which the opposition is based, and provided that the earlier marks concerned and the marks at issue are identical (see judgment of 7 November 2007 in Case T-57/06 NV Marly v OHIM – Erdal (Top iX), not published in the ECR [2007], paragraph 97, and the case-law cited). 69 In this case, however, evidence that registrations coexisting on the market were identical has not been adduced, as the Board of Appeal rightly held in paragraph 28 of the contested decision. Furthermore, the applicant has not, in any event, shown that that coexistence was based on the absence of a likelihood of confusion (Case T-31/03 Grupo Sada v OHIM – Sadia (GRUPO SADA) [2005] ECR II-1667, paragraph 87). 70 Furthermore, it must be recalled that, even in a case involving an earlier mark of weak distinctive character, on the one hand, and a trade mark applied for which is not a complete reproduction of it, on the other, there may be a likelihood of confusion, on account, in particular, of a similarity between the signs and between the goods or services covered (order of the Court of Justice of 27 April 2006 in Case C-235/05 P L’Oréal v OHIM, not published in the ECR [2006], paragraph 53). 71 It follows that, considered cumulatively, the degree of similarity between the trade marks in question and that between the goods and services covered by them are sufficiently high. The Board of Appeal was therefore fully entitled to hold that with respect to the relevant public there was a likelihood of confusion between the signs at issue. 72 Therefore, in the light of the finding of the Board of Appeal in paragraph 34 of the contested decision, and without there being any need to consider the relevance of the fact that the Board of Appeal based its decision, in particular, on the judgment in Medion, on the ground that the element ‘blog’ was not a trade mark or a name of a well-known company, it must be held that the examination carried out by the Board of Appeal of the likelihood of confusion having regard to the similarity of the goods and services and the signs at issue must be upheld. 73 In addition, according to the case-law, when a composite mark consists of one component juxtaposed to another trade mark, that latter mark, even where it is not the dominant component in the composite mark, may still have an independent distinctive role in the composite mark. In such a case, the composite mark and the other mark can be regarded as similar (Case T-212/07 Harman International Industries v OHIM – Becker (Barbara Becker) [2008] ECR II-0000, paragraph 37; see also Medion, paragraphs 30 and 37). In this case, having regard to all the above considerations, the ‘life’ element retains an independent distinctive role in the mark applied for. 74 Therefore, the single plea alleging infringement of Article 8(1)(b) of Regulation No 40/94 must be dismissed as unfounded, together with the application in its entirety, without there being any need to rule on the admissibility of the applicant’s second head of claim asking the Court to dismiss the intervener’s opposition (see, to that effect, Case T-205/06 NewSoft Technology v OHIM – Soft (Presto! Bizcard Reader), not published in the ECR [2008], paragraph 70). Costs 75 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by OHIM and the intervener. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Dismisses the action 2. Orders Nokia Oyj to pay the costs. Martins Ribeiro Wahl Dittrich Delivered in open court in Luxembourg on 20 January 2010. [Signatures] * Language of the case: Finnish.