JUDGMENT OF THE GENERAL COURT (Second Chamber)
24 June 2014 (*)
(Community trade mark — Opposition proceedings — Application for the Community word mark THE HUT — Earlier national word mark LA HUTTE — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑330/12,
The Hut.com Ltd, established in Northwich (United Kingdom), represented by S. Malynicz, Barrister,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by V. Melgar, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Intersport France, established in Longjumeau (France),
ACTION brought against the decision of the Second Board of Appeal of OHIM of 27 April 2012 (Case R 814/2011-2), relating to opposition proceedings between Intersport France and The Hut.com Ltd,
THE GENERAL COURT (Second Chamber),
composed of M.E. Martins Ribeiro, President, S. Gervasoni and L. Madise (Rapporteur), Judges,
Registrar: J. Weychert, Administrator,
having regard to the application lodged at the Court Registry on 19 July 2012,
having regard to the response lodged at the Court Registry on 8 November 2012,
further to the hearing on 21 January 2014,
gives the following
Judgment
Background to the dispute
1        On 29 June 2009, the applicant, The Hut.com Ltd, filed an application for registration of a Community trade mark with 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        Registration as a mark was sought for the word sign THE HUT.
3        The services in respect of which registration was sought are in, inter alia, Class 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 to the following description: ‘Procurement of goods on behalf of others; retail services in connection with the sale of electronic products, cosmetics products, perfumes, clothing, footwear, headgear, toys, games, foodstuffs, drinks; advice and consultancy services in connection with all the aforesaid services; provision of the aforementioned services by a customer care unit’.
4        The Community trade mark application was published in Community Trade Marks Bulletin No 044/2009 of 16 November 2009.
5        On 15 February 2010, Intersport France (‘the opposing party’) filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 against registration of the mark applied for in respect of the services referred to in paragraph 3 above.
6        The opposition was based on the earlier national word mark LA HUTTE, which was filed and registered in France on 3 June 2003 under the number 33228708 in respect of goods in Classes 3, 5, 18, 22, 25 and 28 corresponding, for each of those classes, to the following description:
–        Class 3: ‘Soap, perfumes, essential oils, cosmetics, shampoos; shoe wax, creams for leather’;
–        Class 5: ‘Sanitary preparations for medical purposes, dietetic substances (food and drinks) adapted for medical use, materials for dressings’;
–        Class 18: ‘Trunks and travelling bags, umbrellas; handbags, rucksacks, wheeled shopping bags; bags for climbers, bags for campers, travel bags, beach bags, school bags’;
–        Class 22: ‘Ropes, tents, awnings, tarpaulins’;
–        Class 25: ‘Clothing, footwear, headgear; belts (clothing), furs (clothing); gloves (clothing); scarves; socks; beach shoes, ski boots or boots for sports, anoraks’;
–        Class 28: ‘Games and playthings; gymnastic articles; fishing tackle; balls for games or play balloons, ice or roller skates; scooters (playthings); sailboards or surf boards; rackets; skis’.
7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009.
8        On 14 February 2011, the Opposition Division rejected the opposition in its entirety.
9        On 13 April 2011, the opposing party filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
10      By decision of 27 April 2012 (‘the contested decision’), the Second Board of Appeal of OHIM annulled in part the Opposition Division’s decision in so far as it had rejected the opposition in respect of ‘retail services in connection with the sale of cosmetics products, perfumes, clothing, footwear, headgear, toys, games, advice and consultancy services in connection with all the aforesaid services; provision of the aforementioned services by a customer care unit’ in Class 35. In particular, first, it found that there was a certain degree of similarity between the services in respect of which registration was sought, as set out above, and the goods in respect of which the earlier mark had been registered, namely ‘perfumes, essential oils, cosmetics’ (Class 3), ‘clothing, footwear, headgear’ (Class 25) and ‘games and playthings’ (Class 28). Secondly, it found that the signs at issue were conceptually identical and were similar both phonetically and visually, albeit to a lesser extent visually. Consequently, the Board of Appeal took the view that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, on the part of the relevant public, namely, the French general public.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order OHIM and the opposing party to pay the costs.
12      OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
13      In reply to a question put by the Court at the hearing, the applicant stated that, in the absence of intervention, in particular by the other party to the proceedings before OHIM, in the present case, it did not intend to maintain its second head of claim in so far as that head of claim requested that the Court should order the opposing party to pay the costs.
Law
14      In its action, the applicant puts forward, in essence, a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. More specifically, it criticises the Board of Appeal’s finding that there is a likelihood of confusion between the mark applied for and the earlier mark.
15      Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if because of its identity with, or similarity to, an 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.
16      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 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 perception which the relevant public has of the signs and the goods or services in question, account being taken of all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered (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).
17      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 Case T‑316/07 Commercy v OHIM — easyGroup IP Licensing (easyHotel) [2009] ECR II‑43, paragraph 42 and the case-law cited).
18      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods or services 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).
19      It must be pointed out at the outset in the present case that, first, as the Board of Appeal rightly found in paragraph 20 of the contested decision, and the applicant does not dispute this, the likelihood of confusion between the signs at issue must be assessed with regard to French consumers. The earlier mark was registered in France. Secondly, having regard to the nature of the goods and services covered by the signs at issue, that consumer’s level of attention must be considered to be average, as the Board of Appeal pointed out in paragraph 21 of the contested decision, and the applicant does not dispute this.
20      It is therefore in the light of the considerations set out in paragraphs 15 to 19 above that the existence of a likelihood of confusion, for average French consumers, between the word mark applied for THE HUT and the earlier word mark LA HUTTE must be examined.
The comparison of the goods and services
21      As the applicant confirmed in reply to a question put by the Court at the hearing, it does not dispute the Board of Appeal’s assessment, in paragraph 24 of the contested decision, that there is a ‘certain degree of similarity’ between the goods and services covered by the signs at issue, in so far as that expression indicates a low degree of similarity. It is in the light of that low degree of similarity between the goods and services covered by the signs at issue that the Board of Appeal should have balanced the factors to be taken into consideration in the analysis of the likelihood of confusion.
22      OHIM disputes the applicant’s arguments. It is not apparent from the contested decision that the Board of Appeal found the degree of similarity between the goods and services covered by the signs at issue to be low.
23      According to settled case-law, in assessing the similarity between the goods or services at issue, all the relevant factors relating to those goods should be taken into account. Those factors include, inter alia, their nature, their intended purpose and 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, and Case T‑175/06 Coca-Cola v OHIM — San Polo (MEZZOPANE) [2008] ECR II‑1055, paragraph 61 and the case-law cited).
24      It must be recalled that goods or services which are complementary are those between which there is a close connection, 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 Case T‑116/06 Oakley v OHIM — Venticinque (O STORE) [2008] ECR II‑2455, paragraphs 57 and 58 and the case-law cited).
25      In the present case, it must be pointed out, first, that, as the Board of Appeal correctly found in paragraph 23 of the contested decision, the ‘retail’ and ‘advice and consultancy’ services or the services of ‘provision of the aforementioned services by a customer care unit’, as referred to in paragraph 3 above, in respect of which registration of the mark THE HUT is sought, relate to goods which are identical to those covered by the earlier mark, namely ‘perfumes, essential oils, cosmetics’ (Class 3), ‘clothing, footwear, headgear’ (Class 25) and ‘games and playthings’ (Class 28).
26      Consequently, it must be stated that the relationship between those services and goods is close in the sense that the goods are indispensable to or, at the very least, important for the provision of the services covered by the mark applied for, which are specifically provided when those goods are sold. The services and goods covered by the signs at issue are consequently complementary, as the Board of Appeal correctly pointed out in paragraphs 26 and 27 of the contested decision.
27      In those circumstances, it must held, as the Board of Appeal found in paragraphs 24 and 43 of the contested decision, that there is a certain degree of similarity between the goods and services covered by the signs at issue and that, contrary to what the applicant submits, such a degree of similarity is not low.
28      The applicant’s argument that the Board of Appeal could not rely on O STORE, paragraph 24 above, inasmuch as the signs at issue are not, in the present case, similar, unlike those in that judgment, must be rejected. The fact that the Court held that the signs were similar in that judgment has no bearing on the merits of the finding, in the present case, that there is a certain degree of similarity between the goods and services covered by the signs at issue, given their complementarity.
The comparison of the signs
29      The applicant disputes the Board of Appeal’s assessment, in paragraphs 33 to 38 and 40 of the contested decision, that the signs at issue are conceptually identical and similar both phonetically and visually, albeit to a lesser extent visually. It submits that the signs are not similar and that, even though they have phonetic and visual similarities, those similarities are counteracted by their conceptual differences.
30      In that regard, it must be borne in mind that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, 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 appreciation of such likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 35 and the case-law cited).
31       In general, two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (Case T‑6/01 Matratzen Concord v OHIM — Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 30).
32      As regards visual similarity, the applicant submits that the signs at issue are not similar for three reasons. First, the beginnings and endings of the signs, the importance of which in the visual comparison of signs has been stated by the case-law, are different. Secondly, less than 50% of the earlier mark is included in the mark applied for. Lastly, the lengths of the various elements of which the signs at issue consist are different.
33      The Board of Appeal found, in paragraphs 38 and 40 of the contested decision, that there was a lower degree of similarity between the signs at issue from a strictly visual point of view. It pointed out, in essence, that, although the word ‘hut’ was included in the earlier mark, the first two elements and the endings of the signs at issue were, by contrast, different.
34      It must be stated, first, as the applicant correctly points out, that the signs at issue, taken as a whole, are of different lengths and are asymmetrical in their structures. The mark applied for consists of two words of three letters each and the earlier mark consists of one word of two letters followed by a word of five letters. Secondly, the initial elements of the signs at issue, namely ‘the’ in the mark applied for and ‘la’ in the earlier mark, consist of different letters. Lastly, the second element of the earlier mark contains the letters ‘t’ and ‘e’ added to the syllable ‘hut’, which is the second word in the mark applied for.
35      However, those differences are not sufficient to rule out any visual similarity between the signs at issue. The fact remains, first, that they are two word marks which each consist of two short words. Secondly, the word element ‘hut’, of which the second element of the mark applied for consists, constitutes the three first letters of the second element of the earlier mark.
36      In those circumstances, it must be held, as the Board of Appeal rightly found, in paragraphs 38 and 40 of the contested decision, that, assessed as a whole, the signs at issue are visually similar, albeit to a low degree.
37      As regards phonetic similarity, the applicant submits that, contrary to what the Board of Appeal found, the signs at issue are not identical. First, it maintains that there is no phonetic similarity between the first syllables of those signs, namely ‘la’ in the earlier mark and ‘the’ in the mark applied for. Secondly, it disputes the Board of Appeal’s assessment, in paragraph 33 of the contested decision, that a not insignificant part of the French public will pronounce the English word ‘hut’ in the same way as the French word ‘hutte’.
38      First, it must be pointed out that, although the Board of Appeal found, in essence, in paragraph 33 of the contested decision, that the word ‘hutte’ in the earlier mark and the word ‘hut’ in the mark applied for were phonetically identical, it concluded, however, in paragraph 40 of the contested decision, contrary to what the applicant submits, only that the signs at issue are phonetically similar when assessed as a whole.
39      Secondly, it must be pointed out that, although the words ‘la’ and ‘the’ are phonetically different, by contrast, a not insignificant part of the relevant public may perceive the words ‘hutte’ and ‘hut’ as phonetically similar. As the Board of Appeal correctly stated, in paragraph 33 of the contested decision, given the relevant public’s imperfect knowledge and command of English, in particular of words, such as those at issue in the present case, which are not part of the basic vocabulary, a not insignificant part of that public may pronounce the English word ‘hut’, of which the second element of the mark applied for consists, in the same way as the French word ‘hutte’ in the earlier mark (see, by analogy, Case T‑57/03 SPAG v OHIM — Dann and Backer (HOOLIGAN) [2005] ECR II‑287, paragraph 58).
40      Lastly, the applicant’s argument that the Board of Appeal should have requested that the opposing party provide evidence of the relevant public’s pronunciation of the mark applied for must be rejected as unfounded. Inasmuch as the Board of Appeal correctly found, in essence, in paragraph 33 of the contested decision, that knowledge of the vocabulary of a foreign language, other than the basic vocabulary, could not be assumed (see, by analogy as regards the Spanish public, Case T‑292/08 Inditex v OHIM — Marín Díaz de Cerio (OFTEN) [2010] ECR II‑5119, paragraph 83), it is for the applicant to substantiate, by means of evidence, its argument that the relevant French public has sufficient knowledge of English to pronounce the English word ‘hut’ and the French word ‘hutte’ differently.
41      In those circumstances, it must be held that the Board of Appeal was right to find that the signs at issue are phonetically similar.
42      As regards conceptual similarity, the applicant disputes the Board of Appeal’s findings, in paragraphs 34 to 36 of the contested decision, that, first, the relevant public will associate the same meaning with both of those words and, secondly, the difference between the definite articles making up the signs at issue will be understood as an advertising play on words. According to the applicant, the sign THE HUT has no meaning in French.
43      In that regard, it must be borne in mind, first of all, that, according to the case-law, two marks are conceptually similar if, after prior translation, they refer, in the mind of the relevant public, to the same idea (see, to that effect, Case T‑33/03 Osotspa v OHIM — Distribution & Marketing (Hai) [2005] ECR II‑763, paragraph 51, and Case T‑534/10 Organismos Kypriakis Galaktokomikis Viomichanias v OHIM — Garmo (HELLIM) [2012] ECR, paragraphs 41 and 42). The Court has also stated 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 word elements which, for him, suggest a concrete meaning or which resemble words known to him (see Case T‑30/09 Engelhorn v OHIM — The Outdoor Group (peerstorm) [2010] ECR II‑3803, paragraph 60 and the case-law cited). Furthermore, definite articles which merely introduce a noun and do not form a particular logical and conceptual unit are of less importance in the assessment of the similarity of two marks (see, to that effect, judgment of 15 November 2011 in Case T‑276/10 El Coto De Rioja v OHIM — Álvarez Serrano (COTO DE GOMARIZ), not published in the ECR, paragraph 28 and the case-law cited).
44      In the present case, first, it must by pointed out that, although the Board of Appeal was fully entitled, as is apparent from paragraph 33 of the contested decision, to assume that a substantial and, in any event, not insignificant part of the relevant public does not know the common English noun ‘hut’, the same is not true of the definite article ‘the’, which the relevant public will understand as referring to the French definite article ‘le’ or ‘la’. In the first place, the word ‘the’ is part of basic English vocabulary. In the second place, as the Board of Appeal pointed out in essence and correctly, in paragraph 35 of the contested decision, and the applicant does not dispute this, that definite article is used in everyday language by the relevant French public to highlight, sometimes humorously or emphatically, the common noun which follows it. Consequently, the relevant public will, in the present case, attach particular importance to the beginning of the second element ‘hut’, which is common to the signs at issue. The case-law to which the applicant refers in that regard in order to establish the importance which consumers, in principle, attach to the beginning or ending of a sign is not therefore relevant.
45      Secondly, it must be stated that, although the word ‘hutte’ in the earlier mark has a specific meaning in French, the word ‘hut’ in the mark applied for has no meaning in French. However, as was correctly pointed out in paragraph 31 of the contested decision, the average French consumer will recognise the element ‘the’ in the mark applied for as the English definite article and will understand that it precedes a noun in view of its grammatical function, which was referred to in paragraph 43 above. Consequently, as is apparent from paragraph 34 of the contested decision, a not insignificant part of the relevant public, not knowing the meaning of the English word ‘hut’ in the mark applied for, will be able to attribute a meaning to that word on the basis of the French rules of pronunciation. As the pronunciation of the word ‘hut’ is similar to that of the word ‘hutte’, the relevant public will from that be able to deduce the correct translation in French, namely ‘la hutte’. That meaning proves to be the only one possible and is identical to that of the earlier mark.
46      Thirdly, the applicant does not dispute the view, which is apparent from paragraphs 38 and 39 of OHIM’s response, that ‘the hut’ is the English translation of ‘la hutte’ and refers to a shelter or a shack.
47      It must therefore be held that the Board of Appeal was right to find that the signs at issue are conceptually identical.
48      In the light of the findings set out in paragraphs 36, 41 and 47 above, it must be held that, contrary to what the applicant submits, the Board of Appeal was right to find that the signs at issue, taken as whole, are similar.
49      The other arguments which the applicant puts forward in this respect cannot invalidate that finding.
50      First, the argument that, according to the case-law, the conceptual differences between signs counteract their phonetic and visual similarities must be rejected as irrelevant. That argument is based on the incorrect premiss, as is apparent from paragraph 47 above, that the signs at issue are conceptually different.
51      Secondly, the argument that the Board of Appeal should have attached greater importance to the lack of visual similarity between the signs at issue, inasmuch as the goods in question are bought on sight in shops, must be rejected as unfounded. First, that argument is based on the incorrect premiss, as is apparent from paragraph 36 above, that the signs at issue are not visually similar. Secondly, as the Board of Appeal correctly found in paragraphs 41 and 42 of the contested decision, (i), the average consumer must rely on his imperfect recollection of the marks and, (ii), the differences in the mark applied for may be perceived by the relevant public as reflecting a kind of anglicisation, modernisation or internationalisation of the earlier mark. Lastly, even if the Board of Appeal had paid greater attention to the visual aspects of the signs at issue, that would not be capable of altering the finding, in paragraph 48 above, that, taken as whole, those signs are similar, given that the lower degree of visual similarity is offset by the phonetic similarity and by the conceptual identity.
52      Thirdly, the applicant’s argument that the Board of Appeal did not carry out the examination of the visual, phonetic and conceptual comparisons of the signs in the order of analysis which corresponds to its customary practice and to the settled case-law of the Court of Justice and of the Court also has no effect on the merits of the Board of Appeal’s comparison of those signs.
The likelihood of confusion
53      The applicant disputes the Board of Appeal’s assessment, in paragraph 43 of the contested decision, that, in view of the similarity of the goods and services covered by the signs at issue and the similarity between those signs, a likelihood of confusion on the part of the French general public cannot be excluded.
54      It must be borne in mind that 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 lesser degree of similarity between those goods or services may be offset by a greater 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).
55      In the present case, first, as has been held in paragraph 27 above, there is a certain degree of similarity between the services in respect of which registration of the mark is sought and the goods covered by the earlier mark. Secondly, it has been held, in paragraph 48 above, that the signs at issue are similar. In those circumstances, it must be held, in accordance with the case-law cited in paragraph 54 above, that there is a likelihood of confusion between those signs when assessed globally.
56      That finding cannot be called into question by the applicant’s other arguments.
57      First, it is necessary to reject the argument that, by contrast to what it did in the case which gave rise to the judgment in O STORE, paragraph 24 above, the Board of Appeal could not find that there was a likelihood of confusion, in view of the low degree of similarity between the services and the goods covered by the signs at issue. In the first place, that argument is based on the incorrect premiss that the services and the goods covered by the signs at issue are similar only to a low degree (see paragraph 27 above). In the second place, the Board of Appeal correctly found that there was a likelihood of confusion in the light not only of the finding in paragraph 27 above, but also of the finding, in paragraph 48 above, that the signs at issue are similar.
58      Secondly, the argument that the Board of Appeal erred by taking into consideration only a not insignificant part of the relevant public and not the public as a whole must be rejected as unfounded. As the Board of Appeal expressly stated in paragraphs 33, 34, 37 and 43 of the contested decision, it was with regard to the average French consumer’s perception of the signs at issue that it compared those signs. Furthermore, contrary to what the applicant claims, the Board of Appeal did not err by stating, in paragraphs 33, 36 and 40 of that decision, that it had taken into consideration a ‘substantial part’ or a ‘not insignificant part’ of the relevant public, and not the whole of that public. It is apparent from the case-law that a finding that there is a likelihood of confusion for a not insignificant part of the relevant public is sufficient to uphold an opposition brought against an application for registration of a mark (see, to that effect, judgment of 10 November 2011 in Case T‑22/10 Esprit International v OHIM — Marc O’Polo International (Representation of a letter on a pocket), not published in the ECR, paragraph 121).
59      Thirdly, the argument that the Board of Appeal erred in law by merely establishing that a likelihood of confusion could not be excluded, instead of establishing that such a likelihood existed, must be rejected as unfounded. As OHIM correctly observes and as is apparent from the Court’s examination, set out above, of the contested decision, the Board of Appeal, in the present case, carried out a comparison of the signs at issue and of the goods and services in question which was capable of substantiating the conclusion that there was a likelihood of confusion between those signs.
60      It follows from all of the foregoing considerations that the action must be dismissed.
Costs
61      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders The Hut.com Ltd to pay the costs.
Martins Ribeiro
Gervasoni
Madise
Delivered in open court in Luxembourg on 24 June 2014.
[Signatures]
* Language of the case: English.