JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
3 December 2014 (*)
(Community trade mark — Opposition proceedings — Application for Community figurative mark M&Co. — Earlier Community and national figurative marks MAX&Co. — Earlier national word mark MAX&CO. — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑272/13,
Max Mara Fashion Group Srl, established in Turin (Italy), represented by F. Terrano, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by J. Crespo Carrillo, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Mackays Stores Ltd, established in Renfrew (United Kingdom), represented by A. Gould and K. Passmore, Solicitors, J. Baldwin, Barrister, and M. Howe QC,
ACTION for the annulment of the decision of the Second Board of Appeal of OHIM of 7 March 2013 (Case R 1199/2012-2), relating to opposition proceedings between Max Mara Fashion Group Srl and Mackays Stores Ltd,
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Registry of the General Court on 21 May 2013,
having regard to the response of OHIM lodged at the Court Registry on 30 July 2013,
having regard to the response of the intervener lodged at the Court Registry on 21 August 2013,
having regard to the reply lodged at the Court Registry on 29 November 2013,
having regard to OHIM’s rejoinder lodged at the Court Registry on 3 March 2014,
having regard to the change in the composition of the Chambers of the General Court,
further to the hearing on 5 September 2014,
gives the following
Judgment
Background to the dispute
1        On 25 May 2010, the intervener, Mackays Stores Ltd, filed an application for a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2        The mark in respect of which registration was sought is the figurative sign reproduced below:
3        The goods and services for which registration was sought are those within Classes 25 and 35 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
–        Class 25: ‘Articles of clothing; headgear; footwear’;
–        Class 35: ‘The bringing together, for the benefit of others, of a variety of goods, enabling customers to conveniently view and purchase clothing, headgear, footwear, haberdashery and hair accessories, jewellery, watches and clocks, stationery, calendars and diaries, hand bags, baggage, belts and accessories made of cloth, plastics or leather or imitations of leather, household goods, household utensils and containers, furniture, mirrors, bed clothing, linens and textiles, toys, games and playthings, food and drink’.
4        The Community trade mark application was published in Community Trade Marks Bulletin No 136/2010 of 26 July 2010.
5        On 25 October 2010, the applicant, Max Mara Fashion Group Srl, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above, pursuant to Article 41 of Regulation No 207/2009.
6        The opposition was based on the figurative sign reproduced below:
7        That sign was registered:
–        as a Community trade mark on 17 February 2001 under the number 1174333, designating services within Classes 35 and 42 which correspond, respectively, to the following descriptions:
–        Class 35: ‘Advertising and business’;
–        Class 42: ‘Consultancy for the setting up and management of retail sales outlets for fashion items and clothing under franchise and/or using the trade mark as a sign, non-business’;
–        as a Community trade mark on 4 October 2001 under the number 1838663, designating goods within Classes 18 and 25 and corresponding, for each of those classes, to the following description:
–        Class 18: ‘Goods of leather and imitations of leather, bags, travelling bags, overnight bags, handbags, rucksacks, vanity cases, make-up bags, key-cases, cases and containers for visiting cards and credit cards, pocket wallets and card holders; umbrellas’;
–        Class 25: ‘Clothing, footwear, headgear’;
–        as an Italian mark on 3 November 1999, under the number 793820, renewed on 15 March 2010, designating goods within Classes 18, 24 and 25 and corresponding, for each of those classes, to the following description:
–        Class 18: ‘Leather and imitation of leather, and goods made of these materials not included in other classes; animal skins; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’;
–        Class 24: ‘Textile and textile goods, not included in other classes; bed and table covers’;
–        Class 25: ‘Clothing; footwear; headgear’.
8        The opposition was also based on the Italian word mark MAX&CO., which was registered on 11 May 1987 under the number No 479779 and renewed on 12 February 2010, designating goods within Classes 18, 24 and 25 and corresponding, for each of those classes, to the following description:
–        Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; bags and handbags; belts; parasols, umbrellas, and walking sticks’;
–        Class 24: ‘Textile and textile goods, not included in other classes’;
–        Class 25: ‘Clothing, footwear, headgear, socks, gloves, ties, belts, sports clothing and for sports in general, considered separately or in combination with each other, for women’.
9        The grounds put forward in support of the opposition were those referred to in Article 8(1)(b) and Article 8(5) of Regulation No 207/2009.
10      On 3 May 2012 the Opposition Division rejected the opposition in its entirety.
11      On 28 June 2012, the applicant filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
12      By decision of 7 March 2013 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal. It held that, in essence, there is no likelihood of confusion between the marks at issue. More specifically, it held that the element common to both marks, namely, ‘&co.’ is not distinctive. Consequently, to the Board of Appeal, the signs at issue differ visually and phonetically, and they have a certain lack of similarity from a conceptual perspective. Finally, it held that there is no likelihood of confusion between the marks at issue even assuming that the earlier marks have a highly distinctive character.
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        order OHIM to pay the costs.
14      OHIM and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
Admissibility of the complaint regarding the comparison of the signs
15      OHIM contends that the applicant has not validly contested the visual, phonetic and conceptual assessment of the signs in question, in that this part of the plea is not sufficiently clear and precise to enable OHIM to prepare its response and the Court to exercise its review of the lawfulness of the contested decision.
16      The applicant disputes OHIM’s assertions and submits that, by challenging in its application the lack of distinctive character of the element ‘&co.’, it had necessarily challenged the outcome of the visual, phonetic and conceptual comparisons of the marks in question. In order the better to secure its rights of defence, the applicant reaffirmed in its reply the effect of the recognition of the distinctive character of the element ‘&co.’ on the visual, phonetic and conceptual similarities of the signs.
17      In that regard, it must be observed that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure of the General Court, which applies to intellectual property matters by virtue of Articles 130(1) and 132(1) of those rules, applications must state a summary of the pleas in law on which they are based.
18      That statement must be apparent from the text of the application itself and 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 (see judgment of 9 July 2010 in Exalation v OHIM (Vektor-Lycopin), T‑85/08, ECR, EU:T:2010:303, paragraph 33 and the case-law cited).
19      In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for an action to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. Similar requirements are called for where a submission is made in support of a plea in law (see, to that effect, judgment of 19 November 2008 in Rautaruukki v OHIM (RAUTARUUKKI), T‑269/06, EU:T:2008:512, paragraphs 34 and 37).
20      In the present case, it should be observed that, in paragraph 3 of its application, the applicant recalled the assessment of the similarity of the signs from the various perspectives carried out by the Board of Appeal and then, in paragraph 4 of the application, claimed that that assessment is contrary to the case-law, in so far as, in its submission, the Board of Appeal had neglected the element ‘&co.’ when comparing the signs. Whilst it is true that the applicant’s arguments essentially concern the distinctive character of the element ‘&co.’ and that it has not put forward, in its application, any specific arguments concerning the visual, phonetic and conceptual comparison of the signs at issue, the fact remains that it contested the assessment of the signs carried out by the Board of Appeal as a whole sufficiently coherently and intelligibly. Moreover, if the applicant’s claims that the Board of Appeal failed to take sufficient account, for the purposes of the comparison of the signs, of the element ‘&co.’, common to both marks, are well founded, that would be capable of altering the findings relating to the similarity of the signs. It follows that the applicant contested, in its application, the Board of Appeal’s comparison of the signs in a manner consistent with the requirements of Article 44(1)(c) of the Rules of Procedure; this moreover enabled OHIM to prepare its defence.
21      Consequently, the complaint regarding the assessment of the similarity of the signs is admissible.
The single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
22      The applicant submits, in essence, that there is a likelihood of confusion between the marks in question. It complains that the Board of Appeal failed to take sufficient account, in assessing the signs, of the element ‘&co.’, common to both signs.
23      OHIM and the intervener challenge the applicant’s assertions.
24      According to Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for may not be registered 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.
25      According to settled case-law, the risk that the public 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 that 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 judgment of 9 July 2003 in Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, ECR, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
26      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).
27      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 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 judgment of 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, ECR, EU:T:2007:46, paragraph 42 and the case-law cited).
28      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 judgment of 11 July 2007 in El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, ECR, EU:T:2007:219, paragraph 37 and the case-law cited).
29      The present action must be examined in the light of the abovementioned principles.
30      As regards the relevant public, the Board of Appeal found, in paragraph 26 of the contested decision, that that public is composed of average consumers belonging to the general public of the territory of the European Union and, in particular, of Italy, given that two of the earlier marks are Italian. Those findings, which moreover are not disputed by the applicant, must be upheld.
31      With respect to the comparison of the goods and services, the Board of Appeal confirmed the assessment of the Opposition Division in that regard. The goods and services designated by the mark applied for and those designated by the earlier marks were found to be identical or similar. That finding, which is moreover confirmed by the applicant, must be upheld.
The comparison of the signs
32      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 global 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).
33      The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment in OHIM v Shaker, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment in OHIM v Shaker, EU:C:2007:333, paragraph 42, and of 20 September 2007 in Nestlé v OHIM, C‑193/06 P, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public keep in their minds, so that all the other components are negligible in the overall impression created by that mark (judgment in Nestlé v OHIM, cited above, EU:C:2007:539, paragraph 43).
34      In the present case, the figurative mark applied for consists exclusively of the word element ‘m&co.’, written in standard typeface. The earlier Community and Italian figurative marks are composed of the word element ‘max&co.’, written in standard typeface and in capital letters, with the exception of the letter ‘o’. Lastly, the earlier Italian word mark is made up of the word element ‘max&co.’.
35      With respect to the earlier marks, the Board of Appeal found that the word element ‘max’ is the dominant element of those marks, in so far as, positioned at the beginning of the mark, it produces an overall detached impression. Regarding the mark applied for, the Board of Appeal found that neither of the elements of which it is composed dominates graphically the other.
36      With regard, in particular, to the element ‘&co.’, which is common to both marks, the Board of Appeal found, in paragraph 32 of the contested decision, that it is an abbreviation of the well-known English expression ‘and company’, which is used internationally as an ending to business and company names. It refers to the partner or partners not named in the title of the firm. The Board of Appeal inferred from this that it is an element with weak distinctive character.
37      In the first place, it is necessary to examine the analysis carried out by the Board of Appeal of the distinctiveness of the various elements of the signs in question.
38      First, the applicant claims, in essence, that the element ‘&co.’, even if it were weak, cannot be considered to be negligible, brings a distinctive element to the signs in question and cannot therefore be disregarded in evaluating the signs. It criticises, consequently, the Board of Appeal for not having shown how that element is negligible and for having wrongly reduced the comparison of the signs to a mere comparison of the elements ‘max’ and ‘m’.
39      The applicant’s argument has no basis in fact. It must be stated that the Board of Appeal did not find that the element ‘&co.’ is negligible and that it should not therefore be taken into account. On the contrary, it found, in paragraphs 33 and 34 of the contested decision, that, in the earlier signs, the word element ‘max’ is the dominant element whereas for the sign applied for, neither of the elements is dominant. The Board of Appeal nevertheless specified that a descriptive element forming part of a compound mark, such as ‘&co.’, cannot be considered by the public as the distinctive and dominant element of the overall impression conveyed by that mark. Accordingly, it did not limit the assessment of the similarity of the signs to the elements ‘max’ and ‘m’ alone, and took due account of all the components of the signs in question, including the element ‘&co.’ even though it found that that element has weak distinctive character.
40      Second, it is necessary to examine the argument that the Board of Appeal erred in finding that the element ‘&co.’ has weak distinctive character. As was already found by the Board of Appeal, that element is often used, in business names, as an abbreviation of the element ‘and company’ in order to refer to the partner or partners not named in the title of the firm. That abbreviation is used internationally, so that it will be easily understood by any European consumer irrespective of his or her knowledge of the English language. As regards its use in the signs in question, it must be observed that it occupies the second position in those signs, so that those signs may be considered to amount to business names to which any European consumer is accustomed.
41      Moreover, the fact that a sign or an element of which the sign consists is frequently used as a symbol in the course of trade must be regarded as an indication of the weak distinctive character of that sign or of the element of which the sign consists (see, to that effect, judgment of 27 June 2013 in Repsol YPF v OHIM — Ajuntament de Roses (R), T‑89/12, EU:T:2013:335, paragraph 51).
42      It must therefore be observed that the Board of Appeal was right to find that the element ‘&co.’ has weak distinctive character in the signs in question.
43      The other arguments put forward by the applicant cannot succeed either.
44      Thus, it is necessary to reject its argument that the presence of the element ‘&co.’ is unexpected in a mark in that that element does not recall a business name but a fanciful concept of companionship. The issue whether or not the signs of which the marks at issue consist are business names has no effect on the perception of the signs by the relevant public. In any event, it cannot be ruled out that, because of the presence of the element ‘&co.’, fanciful signs constructed in the same way from business names would be perceived, by the relevant public, as business names indicating the commercial origin of the goods and services.
45      It is also necessary to reject the applicant’s argument that the signs in question do not consist of a family name accompanied by the element meaning ‘and company’. In that regard, the Court concurs with OHIM’s finding that no evidence demonstrating that, according to the rules, the element ‘&co.’ must necessarily accompany family names in order to constitute a business name has been adduced. Moreover, it cannot be ruled out that the average European consumer, who is however accustomed to the presence of the element ‘&co.’ in business names, would not be familiar with the rules of construction of those signs, which would not prevent their being regarded as business names.
46      In addition, the applicant submits that the similarity of the signs in the eyes of the relevant public will be reinforced by the fact that they are short signs.
47      The Court must observe, as OHIM did, that is precisely because the signs are short that the relevant public will perceive the differences between them more clearly (judgment in R, EU:T:2013:335, paragraph 37). In the present case, it is the letters ‘ax’ in the earlier signs which differentiate the signs visually, phonetically and conceptually.
48      In the second place, it is necessary to ascertain whether the Board of Appeal correctly conducted the visual, phonetic and conceptual analysis of the signs.
49      As regards the visual comparison of the signs, the Board of Appeal found, in paragraph 36 of the contested decision, that their similarities lie only in the element ‘&co.’ and that the initial elements, ‘max’ and ‘m’ respectively, are quite different. In view of the weak distinctive character of the element ‘&co.’, the Board therefore concluded that the signs in question are visually different.
50      It must be observed that the initial elements of the signs in question, namely ‘m’ and ‘max’, coincide only in their first letter and differ in length. The common element ‘&co.’, for its part, has weak distinctive character, as was already found in paragraph 40 above. Consequently, the Board of Appeal was right to find that, examined globally, the signs in question are visually different.
51      With respect to the phonetic comparison of the signs in question, the Board of Appeal found that the signs will be pronounced in accordance with the different pronunciation rules for each language. Thus, for example, in Italian, the earlier sign would be read as ‘max and co’ or ‘max and compani’ whereas the sign applied for would be read as ‘em-e-and-co’ or ‘em-e-and-com-pa-ni’. The signs therefore coincide in the pronunciation of the element ‘&co’ and differ in the pronunciation of their initial elements. Given that the common element has weak distinctive character, the Board of Appeal concluded that the signs in question are different.
52      In that regard, the Court considers that the common element ‘&co.’ would be pronounced identically in all the signs in question in each of the languages of the European Union, whereas the initial elements ‘m’ and ‘max’ are quite different, as is demonstrated by the example of the Italian language, on which the Board of Appeal relied. In so far as the similarity of the signs lies, almost exclusively, in the common element which has weak distinctive character, the Board of Appeal was right to find that the signs are phonetically different.
53      With respect to the conceptual comparison of the signs, the Board of Appeal found, in paragraph 39 of the contested decision, that a certain similarity stems from the presence of the element ‘&co.’ in the signs in question. As regards the elements which differ in each of the signs, the element ‘max’ of the earlier signs would be understood as a masculine first name whereas the letter ‘m’ present in the sign applied for is a letter of the alphabet. However, in view of the weak distinctive character of the common element ‘&co.’, the Board of Appeal found that the signs in question display a certain dissimilarity. Those findings must be upheld.
54      The Board of Appeal was therefore right to find that the signs at issue are not similar, in particular by taking account of the distinctive and dominant elements of each of those signs.
The likelihood of confusion
55      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 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 (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).
56      In the present case, the Board of Appeal found, in essence, that there is no likelihood of confusion between the marks at issue. It referred, in particular, to the fact that there are significant differences regarding the initial — and more distinctive — word elements of each of the marks.
57      It added, in paragraph 44 of the contested decision, that, even on the assumption that the earlier marks have a highly distinctive character, there is no likelihood of confusion, on account of the differences between the marks at issue with regard to their respective more distinctive elements.
58      The applicant submits that there is a considerable likelihood of confusion between the marks at issue.
59      However, as is apparent from paragraphs 49 to 52 above, the signs in question are visually and phonetically dissimilar. They also have a certain lack of similarity from a conceptual perspective. Consequently, there is no likelihood of confusion between the marks at issue despite the alleged highly distinctive character of the earlier marks and the identity or similarity of the goods covered by the marks.
60      The applicant submits also that, on account of the highly distinctive character of the earlier mark, all the elements of which it is composed, including the element ‘&co.’, have a highly distinctive character. It criticises the Board of Appeal for having artificially split the earlier mark by finding that its enhanced distinctive character relates solely to the element ‘max’ and not to the element ‘&co.’.
61      That argument is irrelevant. The question whether a mark has acquired an enhanced distinctive character through use and the question whether that mark or the elements of which it is composed are inherently distinctive are two different issues. The fact that a mark can be recognised as having acquired an enhanced distinctive character through use does not however mean that it or the elements of which it is composed must be recognised as having an inherently high degree of distinctiveness. To that effect, OHIM correctly observes that, where a mark has a highly distinctive character, that distinctive character must be ascribed to that mark as a whole and not to all the elements of which it is composed, in particular to those elements which are inherently weak, as is the case with the element ‘&co.’ in the present case. Consequently, the applicant is mistaken in submitting that, on account of the purported highly distinctive character of the earlier mark, the element ‘&co.’ automatically has a highly distinctive character.
62      In addition, the applicant submits that the goods or services covered by the mark applied for might be regarded as a further line of goods covered by the earlier marks, in so far as the letter ‘m’ in the mark applied for would be perceived as an abbreviation of the element ‘max’ in the earlier marks. To illustrate its comments, it refers to a number of well-known marks covering similar goods.
63      In response to the applicant’s argument, OHIM contended that it is rather the earlier marks MAX&Co. which might be regarded as an abbreviation of Max Mara. In that regard, the applicant reacted strongly by asserting, in essence, that MAX&Co. is an independent mark in itself and that it does not derive its renown from Max Mara.
64      In that regard, it must be held that OHIM’s argument relating to the perception of the earlier marks is irrelevant to the question whether there is a likelihood of confusion in the present case. Consequently, there is no need to examine the history of the earlier marks. However, it should be pointed out that the earlier marks differ, in their structure, from the examples of marks on which the applicant relies. The applicant is therefore wrong to submit that the mark applied for might be regarded as a derivative of the earlier marks. That argument must therefore be rejected.
65      In view of all of the foregoing, it is necessary to reject the single plea in law and to dismiss the action in its entirety.
Costs
66      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.
67      Since 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 (Fourth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Max Mara Fashion Group Srl to pay the costs.
Prek
Labucka
Kreuschitz
Delivered in open court in Luxembourg on 3 December 2014.
[Signatures]
* Language of the case: English.