JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
7 February 2013 (*)
(Community trade mark – Opposition proceedings – Application for Community figurative mark METRO KIDS COMPANY – Earlier international figurative mark METRO – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑50/12,
AMC-Representações Têxteis Lda, established in Taveiro (Portugal), represented by V. Caires Soares, 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
MIP Metro Group Intellectual Property GmbH & Co. KG, established in Düsseldorf (Germany), represented by J.-C. Plate and R. Kaase, lawyers,
ACTION against the decision of the First Board of Appeal of OHIM of 24 November 2011 (Case R 2314/2010-1), concerning opposition proceedings between MIP Metro Group Intellectual Property GmbH & Co. KG and AMC‑Representações Têxteis Lda,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot, President, M. E. Martins Ribeiro (Rapporteur) and A. Popescu, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 7 February 2012,
having regard to the response of OHIM lodged at the Court Registry on 8 May 2012,
having regard to the response of the intervener lodged at the Court Registry on 14 May 2012,
having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge‑Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 6 April 2009, the applicant, AMC-Representações Têxteis Lda, 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 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2        The trade mark in respect of which registration was sought is the following figurative sign:
3        The goods and services in respect of which registration was sought are in Classes 24, 25 and 39 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 24: ‘Fabrics’;
–        Class 25: ‘Articles of clothing’;
–        Class 39: ‘Transport, packaging and storage of leatherware, jewellery, clothing and footwear’.
4        The Community trade mark application was published in Community Trade Marks Bulletin No 2009/24 of 29 June 2009.
5        On 8 September 2009, the intervener, MIP Metro Group Intellectual Property GmbH & Co. KG, filed a notice of opposition to the registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above, pursuant to Article 41 of Regulation No 207/2009.
6        The opposition was based on the international registration No 852751 of the following figurative mark:
7        That trade mark, which has effect in Bulgaria, the Czech Republic, Hungary, Poland, Romania, Slovenia and Slovakia, was filed and registered on 25 June 2004 in respect of goods and services in Classes 1 to 45, in particular goods and services in Classes 24, 25 and 39 and corresponding, for each of those classes, to the following description:
–        Class 24: ‘Woven fabrics, textile products, namely, textile fabrics, curtains, roller-blinds, household linen, table and bed linen; bedspreads and tablecloths, furnishing fabrics and fabrics for decoration purposes’;
–        Class 25: ‘Clothing, including shoes, boots, slippers and headgear’;
–        Class 39: ‘Transport services, in particular delivery of parcels and goods, services of a forwarding agent (transport of goods), a freight agent, a haulage business (transport of goods) and a transport agent, delivery of mail‑order goods, packaging and storage of goods; organisation of travels and services of a travel agency; replenishment of sales racks and shelves; provision of information on storage; parking space services’.
8        The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 207/2009.
9        By decision of 24 September 2010, the Opposition Division upheld the opposition on the ground that there was a likelihood of confusion on the part of the target public between the goods and services covered by the Community trade mark application and those covered by the earlier international figurative mark.
10      On 23 November 2010, the applicant filed an appeal with OHIM against the Opposition Division’s decision, pursuant to Articles 58 to 64 of Regulation No 207/2009.
11      By decision of 24 November 2011 (‘the contested decision’), the First Board of Appeal of OHIM dismissed the appeal. First of all, in paragraph 21 of the contested decision it took the view that the relevant territory was that of Bulgaria, the Czech Republic, Hungary, Poland, Romania, Slovenia and Slovakia and that the relevant public consisted of the public at large in those States displaying an average level of attentiveness. Next, in paragraph 22 of the contested decision the Board of Appeal confirmed the Opposition Division’s decision, which was not contested by the applicant, in so far as the Opposition Division had found that the goods in Classes 24, 25 and 39 covered by the trade mark application and by the earlier trade mark were identical. In addition, in paragraphs 26, 27 and 31 of the contested decision the Board of Appeal found, with regard to the visual similarity between the signs, that the word ‘metro’ was included in full in the mark applied for, that the other word elements in that mark were not sufficiently distinctive and that the figurative element in that mark had mainly a decorative and ornamental function. Regarding the aural similarity between the signs, in paragraph 35 of the contested decision the Board of Appeal held, first, that the element ‘metro’ caught more the consumer’s attention and, second, that that consumer tended to abbreviate a mark comprising a number of elements. Lastly, in view of the visual and aural similarities between the signs at issue and despite the inappositeness of any conceptual comparison, in paragraph 46 of the contested decision the Board of Appeal concluded that there was a likelihood of confusion and, mainly, a likelihood of association between the signs at issue.
Forms of order sought
12      The applicant claims that the Court should:
–        annul the contested decision;
–        order OHIM and, if appropriate, the intervener to pay the costs.
13      OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
14      The intervener contends that the Court should:
–        uphold the contested decision;
–        order the applicant to pay the costs, including those incurred for the purposes of the appeal proceedings before OHIM.
Law
15      In its action, the applicant raises a single plea in law, alleging breach of Article 8(1)(b) of Regulation No 207/2009.
16      The applicant complains, in essence, that the Board of Appeal merely considered the element ‘metro’, which is the common element of the signs at issue, without examining those signs considered as a whole. In addition, the applicant claims that, due to the presence of visual and aural differences between the signs at issue which outweigh the identity between them arising from the presence of the common element ‘metro’, there is no likelihood of confusion between those signs.
17      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 is not to 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. In addition, under Article 8(2)(a)(iii) of that regulation, the term ‘earlier trade marks’ is to be taken to mean trade marks with a date of application for registration which is earlier than the date of application for registration of the Community trade mark and which are registered under international arrangements having effect in a Member State.
18      According to consistent 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 (judgment of 10 September 2008 in Case T‑325/06 Boston Scientific v OHIM – Terumo (CAPIO), not published in the ECR, paragraph 70, and judgment of 31 January 2012 in Case T‑205/10 Cervecería Modelo v OHIM – Plataforma Continental (LA VICTORIA DE MEXICO), not published in the ECR, paragraph 23; see, 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).
19      Further, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (CAPIO, paragraph 18 above, paragraph 71; see, by analogy, Case C‑251/95 SABEL [1997] ECR I‑6191, paragraph 22; Canon, paragraph 18 above, paragraph 16; and Lloyd Schuhfabrik Meyer, paragraph 18 above, paragraph 18).
20      That global appreciation entails a certain interdependence between the factors taken into account, and, in particular, the similarity between the trade marks and between the goods or services covered. Accordingly, a low degree of similarity between the goods or services covered 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; Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 25; see, by analogy, Canon, paragraph 18 above, paragraph 17). The interdependence of those factors is expressly referred to in 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 appreciation of which depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the mark and the sign and between the goods or services identified (see CAPIO, paragraph 18 above, paragraph 72 and the case-law cited).
21      Furthermore, the global appreciation of the visual, aural or conceptual similarity of the marks in question 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 207/2009 – ‘there exists a likelihood of confusion on the part of the public’ – shows that the perception of the marks in the mind of the average consumer of the type of goods or services concerned plays a decisive role in the global appreciation of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (CAPIO, paragraph 18 above, paragraph 73; see, by analogy, SABEL, paragraph 19 above, paragraph 23).
22      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. In addition, 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 image of them that he has kept in his mind. Regard should also be had to the fact that the average consumer’s level of attention is likely to vary according to the category of goods or services concerned (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, by analogy, Lloyd Schuhfabrik Meyer, paragraph 18 above, paragraph 26).
23      The Board of Appeal’s assessment of the likelihood of confusion between the signs at issue must be examined in the light of the foregoing considerations.
24      In the present case, the earlier trade mark is an international registration having effect in Bulgaria, the Czech Republic, Hungary, Poland, Romania, Slovenia and Slovakia. Consequently, as the Board of Appeal found in paragraph 21 of the contested decision – a finding not contested by the applicant –, the relevant territory consists of those Member States.
25      It is also common ground that the target public – as the Board of Appeal correctly pointed out in paragraph 21 of the contested decision – is the average consumer of the goods concerned, who is deemed to be reasonably well informed and reasonably observant and circumspect.
26      First, regarding the similarity of the goods and services concerned, it must be stated that, as the Board of Appeal rightly observed in paragraph 22 of the contested decision – an observation which has not been contested by the applicant –, the goods in Classes 24, 25 and 39 covered by the trade mark application and by the earlier trade mark are identical.
27      Second, regarding the similarity of the signs at issue, it should be borne in mind that, as pointed out in paragraph 21 above, the global appreciation of the visual, aural or conceptual similarity of the marks in question must be based on the overall impression given by those marks, bearing in mind, in particular, their distinctive and dominant components.
28      In addition, it has been held, first, that 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. However, 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. That could be the case, in particular, where that component is capable alone of dominating the image of that mark which members of the relevant public keep in their minds, such that all the other components are negligible in the overall impression created by that mark (see Case T‑7/04 Shaker v OHIM – Limiñana y Botella (Limoncello della Costiera Amalfitana shaker) [2008] ECR II‑3085, paragraph 40 and the case-law cited, and LA VICTORIA DE MEXICO, paragraph 18 above, paragraph 37).
29      Second, where a mark is composed of word elements and figurative elements, the former are, as a rule, more distinctive than the latter, as the average consumer will more easily refer to the goods in question by citing the name rather than describing the figurative element of the mark (LA VICTORIA DE MEXICO, paragraph 18 above, paragraph 38).
30      The signs to be compared are the following:
Earlier trade mark
Mark applied for
31      First, it is true, as the Board of Appeal correctly observed in paragraph 26 of the contested decision, that the signs at issue are visually similar because they both contain the element ‘metro’ (see, to that effect, judgment of 27 September 2007 in Case T‑418/03 La Mer Technology v OHIM – Laboratoires Goëmar (LA MER), not published in the ECR, paragraph 122).
32      In that regard, it should be noted that, given its complete lack of meaning in relation to the goods and services concerned, the element ‘metro’ is distinctive, whereas the other word elements which form the mark applied for – namely ‘kids’, ‘company’, ‘est.’, ‘1989’ and ‘trade mark’ – are elements with low distinctiveness, since they contain information about the target public, namely children, in the word ‘kids’; the date on which the undertaking was set up, in the words ‘company’, ‘est.’ and ‘1989’; and the fact that the mark is, allegedly, protected, in the words ‘trade mark’.
33      Furthermore, the applicant has not argued that those words would not be understood by the target public in the relevant territory. Moreover, it must be stated that those words, being extremely commonplace, will be understood even by a public which has difficulty mastering the English language.
34      In addition, the coat of arms, which contains various emblems, is not particularly imaginative and will rather be perceived as a decorative element, although it is easily discernable due to its size (see, to that effect, judgment of 18 September 2012 in Case T‑460/11 Scandic Distilleries v OHIM – Bürgerbräu, Röhm & Söhne (BÜRGER), not published in the ECR, paragraph 37). Similarly, the yellow letters on a blue background in the earlier trade mark are not capable of outweighing the similarity between the signs in question, which include the common element ‘metro’.
35      Thus, contrary to the applicant’s claim that, in some cases, the earlier trade mark has a low distinctiveness, the word element ‘metro’, since it has no connection with the goods in question, has a normal distinctiveness, such that it will attract the target public’s attention more than the other word elements and the coat of arms, which have low distinctiveness. In addition, the Board of Appeal did not err in taking into consideration the relative importance of each of the elements forming the mark applied for, without, however, – contrary to what the applicant claims – considering them to be negligible in the overall impression created by the mark applied for. Furthermore, the applicant’s complaint that, in the administrative procedure, the earlier trade mark had been regarded as highly distinctive by reason of its extensive use and reputation has no basis in fact since, on the contrary, it is clear from paragraph 39 of the contested decision that the earlier trade mark was deemed to be inherently distinctive. In using that wording, the Board of Appeal in no way departed from the findings of the Opposition Division, which had held that the earlier trade mark had a normal distinctiveness.
36      The applicant also claims, relying, inter alia, on the judgment of 11 July 2006 in Case T‑247/03 Torres v OHIM – Bodegas Muga (Torre Muga), not published in the ECR, that the element ‘metro’ will be seen by the consumer as forming part of a clear conceptual unit consisting of the figurative mark METRO KIDS COMPANY and other words such as ‘est.’ and ‘1989’.
37      In that regard, suffice it to state that, in Torre Muga (paragraph 36 above), first, the common element of the signs at issue was not identical (torres/torre) and, second, the word ‘torre’ had in itself a particular meaning in relation to the goods covered (Torre Muga, paragraph 36 above, paragraphs 55 and 57). Since those circumstances are clearly not reproduced in the present case, the mere assertion by the applicant to that effect, in the absence of any compelling evidence, does not allow the conclusion to be drawn that the expression ‘metro kids company’ is a conceptual unit.
38      It follows from all of the foregoing that the contested decision must be upheld as regards the analysis of the visual similarity of the signs at issue.
39      Second, as the Board of Appeal observed in paragraph 33 of the contested decision, there is an even stronger aural similarity between the signs at issue because their figurative elements will not be pronounced.
40      In that regard, it should first of all be borne in mind that consumers normally attach more importance to the beginnings of words (see, to that effect, Joined Cases T‑183/02 and T‑184/02 El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR) [2004] ECR II‑965, paragraph 81).
41      Next, it should be noted that the consumers targeted will also tend not to pronounce the last elements of the expression ‘metro kids company’ simply to economise on words, since those elements, which are not distinctive in relation to the goods covered, are easy to separate from the most distinctive element of the mark applied for, namely the word ‘metro’ (see, to that effect, judgment of 16 September 2009 in Case T‑400/06 Zero Industry v OHIM – zero Germany (zerorh+), not published in the ECR, paragraph 58, and BÜRGER, paragraph 34 above, paragraph 48).
42      Lastly, in any event, even assuming that the target public pronounces the expression ‘metro kids company’ in full, there is, despite the fact that there is a different number of syllables in each of the signs at issue – namely six syllables in the mark applied for and two in the earlier trade mark – and that those signs are pronounced differently, some phonetic similarity between those signs taken as a whole, due to the fact that the first two syllables of the earlier trade mark and the mark applied for are identical and are pronounced in the same way (see, to that effect, LA MER, paragraph 31 above, paragraph 123).
43      With regard to the applicant’s argument that it is apparent from several OHIM decisions that signs containing the common element ‘metro’ have nonetheless been found to be different, it suffices to point out that, according to settled case-law, decisions concerning registration of a sign as a Community trade mark which the Boards of Appeal are called on to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the question whether a sign can be registered as a Community trade mark must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of a previous decision-making practice of the Boards of Appeal (see, to that effect, Case T‑346/04 Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE) [2005] ECR II‑4891, paragraph 71, and LA MER, paragraph 31 above, paragraph 126).
44      It follows from all of the foregoing that the contested decision must also be upheld as regards the analysis of the aural similarity of the signs at issue.
45      Third, regarding the conceptual comparison, it must be found, as the Board of Appeal rightly observed in paragraph 37 of the contested decision without being challenged by the applicant, that it is not possible to carry out any relevant conceptual comparison between the signs at issue.
46      It must therefore be concluded from all of the foregoing that, notwithstanding the absence of any relevant conceptual comparison, the signs at issue are, by reason of their visual and aural similarities, similar overall.
47      Third, as far as the likelihood of confusion is concerned, it should be borne in mind that there is a likelihood of confusion 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, paragraph 20 above, paragraph 45).
48      In the present case, it has been held, in paragraph 26 above, that the goods concerned were identical and, in paragraph 46 above, that the signs at issue were similar overall.
49      It follows that, considered cumulatively, the degree of similarity between the signs at issue and the degree of similarity between the goods covered by those signs are sufficiently high. Consequently, the Board of Appeal acted correctly in taking the view that there was a likelihood of confusion between the signs at issue.
50      That conclusion is not invalidated by the applicant’s argument that the earlier trade mark has a weak distinctive character on the ground that a large number of registered marks contain the element ‘metro’.
51      First, admittedly, the possibility cannot be entirely excluded that, in certain cases, the coexistence of earlier marks on the market might reduce the likelihood of confusion which the departments of OHIM find exists as between two opposing marks. 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 opposing marks are identical (see Case T‑460/07 Nokia v OHIM – Medion (LIFE BLOG) [2010] ECR II‑89, paragraph 68 and the case-law cited).
52      In the present case, however, as the Board of Appeal rightly held in paragraph 40 of the contested decision, the applicant has not in any way shown that that coexistence was based on the absence of any likelihood of confusion (see, to that effect, LIFE BLOG, paragraph 51 above, paragraph 69 and the case-law cited). It follows that the applicant has not shown that the distinctive character of the earlier trade mark was weakened or diluted.
53      The applicant’s argument that proof of formal coexistence is inherently absurd cannot be accepted, since it is for the person relying on an alleged coexistence of a number of trade marks to prove that the consumers targeted are accustomed to seeing those marks without confusing them (Case T‑31/03 Grupo Sada v OHIM – Sadia (GRUPO SADA) [2005] ECR II‑1667, paragraph 86).
54      Second, it should be borne in mind that, although the distinctive character of the earlier mark must be taken into account for the purpose of assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Thus, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services concerned (Case T‑130/03 Alcon v OHIM – Biofarma (TRAVATAN) [2005] ECR II‑3859, paragraph 78, and judgment of 13 July 2011 in Case T‑88/10 Inter IKEA Systems v OHIM – Meteor Controls (GLÄNSA), not published in the ECR, paragraph 52). That is, in any event, the position in the present case.
55      In addition, the applicant, while not formally contesting the identity of the goods in question, nonetheless claims that, although in principle intended for the public at large, the goods covered by the mark applied for are in fact intended for a much more limited and ‘more exclusive’ consumer base than those sold by the intervener. The quality, price and details of the applicant’s goods set them apart from the intervener’s goods. The goods in question are sold in different locations and target a different public. Therefore, according to the applicant, there is no likelihood of confusion on the part of the target public.
56      In that regard, it must be recalled that, in the global assessment of the likelihood of confusion, the ‘usual’ circumstances in which the goods and services covered by the marks in dispute are marketed must be taken as a benchmark, that is, those which it is usual to expect for the category of goods or services covered by the marks in question (see Case T‑116/06 Oakley v OHIM – Venticinque (O STORE) [2008] ECR II‑2455, paragraph 75 and the case-law cited, and judgment of 17 January 2012 in Case T‑249/10 Kitzinger v OHIM – MDR and ZDF (KICO), not published in the ECR, paragraph 49).
57      Consideration of the objective circumstances in which the goods and services covered by the marks in dispute are marketed is fully justified. The examination of the likelihood of confusion which the departments of OHIM are called on to carry out is prospective. Since the particular circumstances in which the goods and services covered by the marks are marketed may vary in time and depending on the wishes of the proprietors of those marks, the prospective analysis of the likelihood of confusion between two marks, which pursues an aim in the general interest, that is, that the relevant public may not be exposed to the risk of being misled as to the commercial origin of the goods in question, cannot be dependent on the commercial intentions, whether carried out or not – and which are naturally subjective – of the trade mark proprietors (see O STORE, paragraph 56 above, paragraph 76 and the case-law cited).
58      It follows that the quality, price or details of the applicant’s goods and the particular circumstances in which they are marketed, which are dependent on the commercial intentions of the person applying for the trade mark and which may therefore vary in time, cannot be relevant for the purposes of analysing the likelihood of confusion.
59      Furthermore, with regard to the applicant’s argument that its goods are aimed at a more limited consumer base and are intended for children, it must be stated that the applicant has not submitted a restriction regarding the goods covered by the trade mark application, with the result that the comparison of the goods must concern the description of the goods covered by the marks in issue and not the goods for which the trade marks are actually used (Case T‑133/05 Meric v OHIM – Arbora & Ausonia (PAM-PIM’S BABY-PROP) [2006] ECR II‑2737, paragraph 30).
60      Lastly, regarding the applicant’s argument that the intervener has not proved that the word element ‘metro kids company’ in the mark applied for will be identified by the target public as a variant of a serial mark and that OHIM also has not stated the reasons for that conclusion, it should be noted that it is common in the clothing sector for the same mark to be configured in various ways according to the type of product which it designates. In that sector, it is indeed common for a single clothing manufacturer to use sub-brands (signs that derive from a principal mark and which share with it a common dominant element) in order to distinguish its various clothing lines from one another (see Case T‑385/09 Annco v OHIM – Freche et fils (ANN TAYLOR LOFT) [2011] ECR II‑455, paragraph 45 and the case-law cited).
61      Having regard, first, to the nature of the goods and the way in which they are marketed, then to the practices in relation to the branding of clothing products and, finally, to the expectations and the habits of the target public, it should be considered that that public, when faced with the two signs at issue, could make a connection between them, inasmuch as the most distinctive element of the mark applied for is the same as the sole element of the earlier mark and it is normal for a ‘house brand’ to vary its own mark by adding to it an element that characterises a secondary line (see, to that effect, ANN TAYLOR LOFT, paragraph 60 above, paragraph 46).
62      The applicant’s single plea in law must therefore be rejected and, accordingly, the action must be dismissed in its entirety.
Costs
63      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 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.
64      Furthermore, the intervener claims that the applicant should be ordered to pay the costs incurred by the intervener for the purposes of the appeal proceedings before the Board of Appeal. In that regard, it must be pointed out that, pursuant to Article 136(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of proceedings before the Board of Appeal are to be regarded as recoverable costs, with the result that they are covered by the applicant’s being ordered to pay the costs under Article 87(2) of the Rules of Procedure, as stated in paragraph 63 above (see Case T‑407/08 MIP Metro v OHIM – CBT Comunicación Multimedia (Metromeet) [2010] ECR II‑2781, paragraph 51 and the case-law cited).
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders AMC-Representações Têxteis Lda to pay the costs.
Truchot
Martins Ribeiro
Popescu
Delivered in open court in Luxembourg on 7 February 2013.
[Signatures]
* Language of the case: English.