Judgment — ECLI:EU:T:2014:886
Date: 2014-10-16
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - successful

summary under the heading ‘Following up’ recommends speaking to a personal trainer or doing exercise or following behavioural therapy in order to implement the lifestyle changes suggested in the leaflet. At the end of the document is a bibliography containing 26 scientific articles on the subject. None of the titles of those 26 articles contains the term ‘lactobacillus acidophilus’. In addition, the document does not contain any reference to hygienic diapers. 45 The description of the Linex Forte drug relied on by the intervener and OHIM is a press release relating to that drug published on the Slovenian website www.lek.sl and printed on 16 January 2012. It states that lek, the company on whose website the document was published, is part of the Novartis group. The document states, essentially, that the Linex Forte drug contains a concentration of probiotic bacteria which is 100 times greater than that of the Linex drug, that it contains bacteria from the Lactobacillus and Bifidobacterium families which can treat diarrhoea, flatulence and distension, that it restores the equilibrium of the gut flora and that it avoids the growth of malignant bacteria. There is no reference to incontinence, vaginal or urinary infections, or to hygienic diapers or hygienic napkins for incontinents. 46 The Court notes that it does not appear either from the extract taken from the website of the University of Maryland, or from the description of the Linex Forte drug, that drugs containing lactobacillus acidophilus may be used to treat incontinence related problems. It rather follows from those documents that lactobacillus acidophilus is a stabiliser of intestinal flora, which adds beneficial bacteria to the gut and helps prevent nutritional deficiencies. The use of supplements containing lactobacillus acidophilus is also recommended in addition to a treatment against incontinence in order to improve health, as indeed are various vitamins, fruit and foods. However, lactobacillus acidophilus as such is not considered a medicinal product designed to treat incontinence or urinary tract or vaginal infections which may cause incontinence related problems. The mere fact that that bacterium is recommended in addition to a treatment against incontinence, in so far as its inclusion is recommended in a general change in dietary habits which a patient who suffers from incontinence should make, is not sufficient to allow the conclusion reached by the Board of Appeal that it has a medicinal or therapeutic purpose. Therefore, the documents relied on by the intervener and OHIM do not make it possible to determine that medicines or supplements containing lactobacillus acidophilus should be considered to be intended for treating incontinence or infections giving rise to incontinence-related problems. The Board of Appeal therefore committed an error. 47 In so far as the parties refer to the information taken from the Wikipedia website, the Court reiterates its settled case-law pursuant to which facts alleged on the basis of information taken from Wikipedia must be disregarded since, as it is based on an article from a collective encyclopaedia established on the internet, whose content may be amended at any time and in certain cases by any visitor, even anonymously, such alleged facts are based on information which lacks certainty (see, to that effect, judgments of 10 February 2010 in O2 (Germany) v OHIM (Homezone), T‑344/07, ECR, EU:T:2010:35, paragraph 46, and of 16 November 2011 in Dorma v OHIM — Puertas Doorsa (doorsa FÁBRICA DE PUERTAS AUTOMÁTICAS), T‑500/10, EU:T:2011:679, paragraph 55). The uncertainty of the information from Wikipedia is also highlighted in the case at hand precisely by the fact that the extract taken from that website submitted during the proceedings before OHIM and cited by OHIM at the hearing is worded differently from that provided by the applicant in the annex to its application. In any event, in no way does it follow from the Wikipedia extracts submitted during the proceedings before the Court that drugs or supplements containing lactobacillus acidophilus must be considered to be intended as a treatment for incontinence. Moreover, neither does it follow that the general public thinks that to be the case. Finally, the Court finds that the fact that incontinence may be treated with lactobacillus acidophilus is not well known either. 48 It follows that the therapeutic benefits of lactobacillus acidophilus as a treatment for incontinence may not be considered to be either proven or well known. Therefore it must be considered that ‘pharmaceutical preparations containing lactobacillus acidophilus’ are not connected with the medical treatment for incontinence. The Board of Appeal was therefore not in a position, on the basis of the available evidence, to make a finding that such a link existed. Therefore, the first argument raised by the applicant must be allowed. – The possibility of releasing lactobacillus acidophilus into the vagina by means of a medicated napkin 49 The Board of Appeal states, in paragraph 16 of the contested decision, that ‘… lactobacillus acidophilus may be currently present in the vagina and have a beneficiary effect to combat yeast infections. The absence of lactobacillus acidophilus in this part of the body can be supplemented by napkins to which this bacillus is added in order to combat an eventual yeast infection’. According to the Board of Appeal, it is therefore possible to release some lactobacillus acidophilus into the vagina using hygienic napkins or diapers in order to balance or increase the natural occurrence of that bacterium in that part of the body. 50 Before considering the merits of that argument, it is first necessary to rule on the admissibility thereof which is disputed by the intervener and OHIM. 51 According to the case-law, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which came to light in the course of the procedure, as the first subparagraph of Article 48(2) of the Rules of Procedure provides. In contrast, a plea in law which may be regarded as amplifying a plea previously put forward, directly or by implication, in the application initiating proceedings, and which is closely connected with that plea is admissible (judgments of 26 April 2007 in Alcon v OHIM, C‑412/05 P, ECR, EU:C:2007:252, paragraph 38 et seq., and of 9 September 2010 in British Aggregates and Others v Commission, T‑359/04, ECR, EU:T:2010:366, paragraph 87). While it is true that the applicant clarified its position on the existence of medicated hygienic diapers on the market only in its reply, it did however, in paragraph 37 of the application, dispute that ‘there exist[ed] a connection between the products covered [by] the contested application and sanitary napkins’ and added that ‘[h]owever, as this ha[d] not been proven, the decision must be set aside’. In addition, it states at paragraph 41 of the application that ‘... [OHIM] has failed to take into account that … the case [was] not even concerned with two pharmaceutical preparations but two completely different goods’. It is very clear from those arguments that the applicant disputes the pharmaceutical nature of hygienic diapers and that it considers the inference of a connection between the contested goods to be incorrect. Accordingly, that argument may be regarded as amplifying a plea made previously and is admissible under the first subparagraph of Article 48(2) of the Rules of Procedure. 52 That finding is not affected by the argument raised by OHIM that the applicant did not dispute the existence of medicated diapers before the Board of Appeal. It is apparent from OHIM’s file that the argument about the existence of medicated diapers was not raised by the parties during the opposition proceedings before OHIM. That argument appears for the first time in the decision of the Opposition Division which found only that hygienic diapers may contain medicated substances. Similarly, the intervener reproduces that argument put forward by the Opposition Division in its response before the Board of Appeal. However, neither the division nor the intervener found that hygienic diapers containing lactobacillus acidophilus in order for it to be released into the vagina existed. That connection between napkins and lactobacillus acidophilus was mentioned for the first time by the Board of Appeal in paragraph 16 of the contested decision. Therefore, the applicant was not in a position to take a view on that argument before the Board of Appeal and consequently was entitled to give an opinion thereon before the Court. 53 As to the merits of that argument, the Court notes first that, when the Board of Appeal adopted the contested decision, it had not been established that medicated hygienic diapers existed. It is true that, as noted by the intervener and OHIM, a product referred to as a ‘medicated napkin’ was the subject of an application for registration in a case before the Opposition Division, but that fact, of which the Board of Appeal was apparently not aware when it adopted the contested decision, is not in itself sufficient to prove the existence of medicated hygienic diapers. Moreover, that fact is not at all well known, because, as the applicant correctly explained at the hearing, the relevant public can be aware only of existing products and not those which might theoretically exist one day. Secondly, it has also not been demonstrated, as correctly noted by the applicant, that it is possible to place a bacterium into the vagina by means of a hygienic diaper or napkin. OHIM’s argument at the hearing that it would not be surprising that bacteria, ‘probably living organisms, could find their way into the human body’ from a hygienic diaper is neither supported by any form of evidence, nor well known, as OHIM itself had to admit at the hearing. Thirdly, even assuming that it is possible to release lactobacillus acidophilus into the vagina by means of a diaper or napkin, such a finding would, if it cannot be shown to be well known, have to be supported and cannot, contrary to what the intervener submits, be inferred from the mere fact that it is in principle possible to add any substance to hygienic diapers. 54 However, as has already been stated in paragraph 44 et seq. above, the documents submitted by the intervener do not contain any evidence which allows the conclusion that it is possible to release lactobacillus acidophilus into the vagina by means of a hygienic diaper or napkin. In the absence of evidence to the contrary, it must be held that napkins or diapers containing lactobacillus acidophilus for the purpose of its release into the vagina do not exist. The Board of Appeal therefore should not, on the basis of the evidence available, have found that such a product existed. It follows that the second argument raised by the applicant must also be upheld. – The other arguments submitted by the intervener 55 The Court observes, in relation to the argument submitted by the Board of Appeal and OHIM that the contested goods are all goods intended for body care or health care, that ladies’ hygienic diapers and hygienic napkins for incontinents do not appear to have the primary objective of caring for the body or improving health, but rather of protecting clothing in cases of incontinence or loss of blood (see, to that effect, judgment in PAM-PIM’S BABY-PROP, paragraph 34 above, EU:T:2006:247, paragraph 37). However, while it cannot be denied that they can also be used for hygienic purposes and thus, rather indirectly and secondarily, in order to ‘car[e] for the body’, that finding can entail only a very low degree of similarity. 56 As to the complementarity relied on by the intervener, it should be borne in mind that goods are complementary where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (see easyHotel, paragraph 19 above, EU:T:2009:14, paragraphs 57 and 58 and the case-law cited). Here, no such connection exists. The use of a ladies’ hygienic diaper or hygienic incontinence napkin does not require or facilitate the consumption of a pharmaceutical food supplement. As indicated in paragraph 46 above, the contested goods are complementary neither for the treatment of incontinence, nor for the treatment of infections giving rise to incontinence related problems. In those circumstances, the contested goods cannot be considered complementary. 57 The argument that the applicant defended a contrary position as regards the similarity of the goods in another case is irrelevant, because its position in that case is not the subject of the present dispute. Conclusion 58 It follows from all the foregoing that the contested goods are partly marketed in the same outlets. They are dissimilar by their nature and the manner in which they are used and only very slightly similar in their purpose, but are not complementary. In conclusion, the circumstances make it possible for the Court to find only a very low degree of similarity between the contested goods. Accordingly, the Board of Appeal erred in designating the contested goods as highly similar and not as similar to a low degree. The comparison of the signs 59 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the overall assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007 in OHIM v Shaker, C‑334/05 P, ECR, EU:C:2007:333, paragraph 35 and the case-law cited). 60 The Board of Appeal, supported on this point by OHIM and the intervener, found that the degree of visual and phonetic similarity was average in so far as the signs coincided in their first letters — ‘line’ — and as a result of the fact that consumers pay more attention to the beginning of a mark. Phonetically, the similarity between the marks at issue is also due to the similar pronunciation of the consonants ‘s’ and ‘x’ in Italian. With respect to conceptual similarity, the marks at issue do not convey any concept. 61 The applicant disputes that assessment. As a result, in particular, of the presence of the letter ‘x’ in the mark applied for and the additional element ‘perla’ in the earlier Italian mark, there are no visual or phonetic similarities. There is no basis for asserting that the word ‘perla’, the second element of the earlier Italian mark, will be completely ignored by the relevant public. 62 With regard to the visual similarity of the marks at issue, it should be noted, first, that they begin with the same letters, namely the group of letters ‘line’, followed by an ‘s’ in the first element of the earlier Italian mark and an ‘x’ in the mark applied for. The mark applied for and the word ‘lines’ are therefore visually similar, even if the letter ‘x’ is a distinguishing feature of the word ‘linex’. Secondly, the earlier Italian mark contains a second element, namely the word ‘perla’ which means ‘pearl’. That element is not negligible in the overall impression produced by the mark and somewhat limits the similarity between ‘lines’ and ‘linex’ but does not neutralise it completely. The marks at issue therefore have a relatively low degree of visual similarity. 63 Phonetically, it must be held that the pronunciation of the LINEX mark and of the word ‘lines’ is similar for an Italian-speaking public for whom the letter ‘x’ is pronounced ‘cs’. In addition, the words ‘lines’ and ‘linex’ are pronounced in Italian in two syllables, the stress being placed each time on the first syllable. However, it is also necessary to consider the second part of the earlier Italian mark, namely the element ‘perla’, which will also be pronounced, as a result of which the Court considers that there is a low degree of similarity between the marks at issue phonetically as well. 64 As regards the conceptual similarity, the conclusion of the Board of Appeal that the marks at issue do not convey a similar concept must be approved, since the words ‘lines’ and ‘linex’ have no meaning in Italian and since ‘perla’ means ‘pearl’ in that language. The global assessment of the likelihood of confusion 65 The global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the marks and the similarity of the goods or services concerned. Accordingly, a low degree of similarity between the goods may be offset by a high 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 of 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:T:2006:397, paragraph 74). 66 The Board of Appeal, challenged by the applicant and supported by OHIM, found that the inherent distinctiveness of the earlier Italian mark was average and that no enhanced distinctiveness because of its use had been established by the intervener. Notwithstanding the high level of attention of the consumers concerned, the strong similarity of the contested goods and the average degree of visual and aural similarity mean that the relevant public might confuse the commercial origin of the goods marketed under the marks at issue. 67 The intervener concurs with the assessment of the Board of Appeal except in relation to the finding that the enhanced distinctiveness has not been sufficiently proven. The intervener states that during the administrative procedure it did show the enhanced distinctiveness arising from the use of the mark. 68 Regarding the inherent distinctiveness of the earlier Italian mark, the assessment of the Board of Appeal must be approved. Indeed, the word element ‘lines’ has no meaning in Italian, while the word ‘perla’ means ‘pearl’ in that language, a meaning which in no way relates to the goods covered by the earlier Italian mark. Each of those elements is therefore, like the earlier Italian mark as a whole, of normal distinctiveness. 69 As regards the argument alleging enhanced distinctiveness due to the use of the earlier Italian mark, the intervener raises no argument of law or fact to support its argument, but simply refers to what ‘was evidenced at the earlier stage of the proceedings’. It is clear from the case-law of the General Court that a mere general reference to the arguments set out in the written pleadings submitted in the course of the administrative procedure does not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure and, therefore, cannot be taken into account (judgment of 31 March 2004 in Interquell v OHIM — SCA Nutrition (HAPPY DOG), T‑20/02, ECR, EU:T:2004:95, paragraph 20). 70 Given that the level of attention of the consumers concerned is high in relation to the goods covered by the mark applied for and higher than average with respect to goods covered by the earlier Italian mark, that the degree of similarity between the contested goods is very low and that the distinctive character of the earlier Italian mark is normal, the degree of visual and phonetic similarity between the marks at issue, which is rather low, is not sufficient to offset the very low degree of similarity of the contested goods. Therefore, the errors that the Board of Appeal committed in the course of the assessment of the similarity of the goods and brands have been reflected in its overall assessment of the likelihood of confusion. In particular, the Board of Appeal could not have found that there was such a likelihood if it had taken into account the very low degree of similarity between the contested goods. It must therefore be held that the Board of Appeal infringed Article 8(1)(b) of Regulation No 207/2009. 71 It follows from all the foregoing that the second plea alleging infringement of Article 8(1)(b) of Regulation No 207/2009 is well founded and that, for that reason alone, the Court is required to set aside the contested decision, without it being necessary to consider the other arguments raised by the applicant as part of its first plea. Costs 72 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since OHIM has been unsuccessful, it must be ordered to pay the applicant’s costs, in accordance with the form of order sought by the applicant. The intervener has been unsuccessful and must bear its own costs. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Annuls the decision of the Fourth Board of Appeal of the Office for the Harmonisation of the Internal Market (Trade Marks and Designs) (OHIM) of 6 August 2012 (Case R 414/2011-4); 2. Orders OHIM to bear its own costs and pay those incurred by the applicant; 3. Orders the intervener to bear its own costs. Dittrich Schwarcz Tomljenović Delivered in open court in Luxembourg on 16 October 2014. [Signatures] * Language of the case: English.