JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
18 September 2012 (*)
(Community trade mark – Opposition proceedings – Application for Community figurative mark BÜRGER – Earlier Community word mark Bürgerbräu – Relative ground of refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑460/11,
Scandic Distilleries SA, established in Bihor (Romania), represented by Á. László, 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 being
Bürgerbräu, August Röhm & Söhne KG, established in Bad Reichenhall (Germany),
ACTION brought against the decision of the Second Board of Appeal of OHIM of 25 May 2011 (Case R 1962/2010-2), relating to opposition proceedings between Bürgerbräu, August Röhm & Söhne KG and Scandic Distilleries SA,
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 19 August 2011,
having regard to the response lodged at the Registry of the General Court on 9 February 2012,
having regard to the decision of 22 March 2012 refusing leave to lodge a reply,
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 rule on the action without an oral procedure pursuant to Article 135a of the Rules of Procedure of the Court,
gives the following
Judgment
Background to the dispute
1        On 12 June 2009 the applicant Scandic Distilleries SA filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under 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 figurative sign reproduced below:
3        The goods and services in respect of which registration was sought are in Classes 32 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 32: ‘Beers’;
–        Class 35: ‘Advertising; business management’.
4        The Community trade mark application was published in Community Trade Marks Bulletin No 2009/035 of 14 September 2009.
5        On 5 October 2009 Bürgerbräu, August Röhm & Söhne KG filed a notice of opposition under Article 41 of Regulation No 207/2009 to registration of the trade mark applied for in respect of the goods and services referred to in paragraph 3 above.
6        The opposition was based on the earlier Community word mark Bürgerbräu, which was filed on 8 July 1999 and registered on 9 October 2000 under No 1234061 in respect of goods and services in Classes 21, 32 and 42 corresponding, for each of those classes, to the following description:
–        Class 21: ‘Household or kitchen utensils and containers (not of precious metal or coated therewith); glassware, porcelain and earthenware (included in class 21)’;
–        Class 32: ‘Beers; mineral and aerated waters and other non‑alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’;
–        Class 42: ‘Providing of food and drink; temporary accommodation; construction and design planning and consultancy; landscape gardening and landscaping; surveying and computer programming’.
7        The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 207/2009.
8        By decision of 10 August 2010, the Opposition Division allowed the opposition with respect to the goods in Class 32 referred to in the application, on the ground that there was a likelihood of confusion on the part of the target public, and rejected it with respect to the services in Class 35 referred to in the application, on the ground that they were different from the goods and services covered by the earlier mark.
9        On 8 October 2010 the applicant filed an appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
10      By decision of 25 May 2011 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal. It considered, first, in paragraph 13 of the contested decision, that the relevant territory was that of the European Union and that the consumer targeted was the average consumer of the goods concerned, namely beers, who was taken to be reasonably well informed and reasonably attentive and circumspect. The Board of Appeal next, in paragraph 16 of the contested decision, approved the decision of the Opposition Division, in so far as it had found that the goods in Class 32 covered by the trade mark application and by the earlier mark were identical. Finally, having regard to the visual, phonetic and conceptual similarities of the conflicting signs, the Board of Appeal considered, in paragraph 33 of the contested decision, that the Opposition Division had correctly concluded that there was a likelihood of confusion.
Forms of order sought by the parties
11      The applicant claims that the Court should:
–        alter the contested decision and render the registration of the trade mark applied for;
–        order OHIM to pay the costs.
12      OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Admissibility
The first head of claim in the application
13      By its claim for the contested decision to be varied for the purpose of registering the trade mark applied for, the applicant’s intention, as may clearly be seen from its pleadings, was essentially to seek, by its single plea in law alleging breach of Article 8(1)(b) of Regulation No 207/2009, the annulment of the contested decision (see, to that effect, Case T‑123/04 Cargo Partner v OHIM (CARGO PARTNER) [2005] ECR II‑3979, paragraph 34, and judgment of 10 December 2008 in Case T‑412/06 Vitro Corporativo v OHIM – VKR Holding (Vitro), not published in the ECR, paragraph 16).
14      In the second part of its first head of claim, the applicant further asks the Court to provide for the registration of the trade mark applied for. It is clear that the applicant is essentially seeking for OHIM to be ordered to register the mark for the goods concerned (see, to that effect, Case T‑129/01 Alejandro v OHIM – Anheuser-Busch (BUDMEN) [2003] ECR II‑2251, paragraph 21, and Case T‑33/03 Osotspa v OHIM – Distribution & Marketing (Hai) [2005] ECR II‑763, paragraph 14).
15      It must be recalled that, under Article 65(6) of Regulation No 207/2009, OHIM is required to take the measures necessary to comply with the judgment of the European Union judicature. Consequently, it is not for the General Court to issue directions to OHIM. It is for OHIM to draw the consequences of the operative part of judgments of the Court and the grounds on which they are based. The applicant’s claim for the registration of the mark applied for to be carried out is therefore inadmissible (see, to that effect, BUDMEN, cited in paragraph 14 above, paragraph 22, and Hai, cited in paragraph 14 above, paragraph 15).
Admissibility of certain arguments
16      As regards the arguments, referred to by the applicant in point 8 of its application, which it submitted during the procedure before OHIM, it must be recalled that, under Article 44(1) of the Court’s Rules of Procedure, the application must contain a summary of the pleas in law on which it is based. The summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information (see Case T‑127/02 Concept v OHIM (ECA) [2004] ECR II‑1113, paragraph 17 and the case-law cited).
17      Although specific points in the text of the application can be supported and completed by references to passages in the documents attached, a general reference to other documents, even if they are annexed to the application, cannot compensate for the omission of essential elements of the legal argument which must, under the above provision, appear in the application (ECA, cited in paragraph 16 above, paragraph 18; Case T‑183/03 Applied Molecular Evolution v OHIM (APPLIED MOLECULAR EVOLUTION) [2004] ECR II‑3113, paragraph 11; and Joined Cases T‑350/04 to T‑352/04 Bitburger Brauerei v OHIM – Anheuser-Busch (BUD, American Bud and Anheuser Busch Bud) [2006] ECR II‑4255, paragraph 33).
18      In the present case, the applicant confined itself to stating in its application (point 8):
‘We set forth that we uphold all our arguments laid down in the proceedings before the Defendant and request the Honourable General Court to take them into account in the present procedure as well.’
19      Thus the applicant identifies neither the specific points in its application which it wishes to complete by that reference nor the annexes in which the arguments might be set out.
20      In those circumstances, it is not for the Court to search in the annexes for the arguments to which the applicant might be referring, or to examine them, as such arguments are inadmissible.
Substance
21      In its application the applicant raises a single plea in law, alleging breach of Article 8(1)(b) of Regulation No 207/2009.
22      The applicant essentially submits that the degree of similarity between the conflicting signs is so low that there cannot be a likelihood of confusion between them, even in the case of identical or similar goods.
23      In accordance with Article 8(1)(b) of Regulation No 207/2009, 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 because of 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. Article 8(2)(a)(i) of that regulation further provides that ‘earlier trade marks’ means Community trade marks with a date of application for registration which is earlier than the date of application for registration of the Community trade mark.
24      According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings constitutes a likelihood of confusion (judgments of 10 September 2008 in Case T‑325/06 Boston Scientific v OHIM – Terumo (CAPIO), not published in the ECR, paragraph 70, and 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 also, by analogy, Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 29, and Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraph 17).
25      Moreover, the likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (CAPIO, cited in paragraph 24 above, paragraph 71; see also, by analogy, Case C‑251/95 SABEL [1997] ECR I‑6191, paragraph 22; Canon, cited in paragraph 24 above, paragraph 16; and Lloyd Schuhfabrik Meyer, cited in paragraph 24 above, paragraph 18).
26      That global assessment implies some interdependence of the factors taken into account, in particular of the similarity of the marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (Case C‑234/06 P Il Ponte Finanziaria v OHIM [2007] ECR I‑7333, paragraph 48; Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 25; see also, by analogy, Canon, cited in paragraph 24 above, paragraph 17). The interdependence of those factors is expressly referred to in recital 8 in the preamble to Regulation No 207/2009, which states that the concept of similarity should be interpreted in relation to the likelihood of confusion, the appreciation of which depends on numerous elements and, in particular, on the recognition of the trade mark on the market, the association which can be made with the used or registered sign, the degree of similarity between the trade mark and the sign and between the goods or services identified (see CAPIO, cited in paragraph 24 above, paragraph 72 and the case-law cited).
27      Furthermore, the global assessment of the visual, phonetic or conceptual similarity of the conflicting signs must be based on the overall impression given by the signs, account being taken in particular of 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 in question plays a decisive role in the global assessment of the likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (CAPIO, cited in paragraph 24 above, paragraph 73; see also, by analogy, SABEL, cited in paragraph 25 above, paragraph 23).
28      For the purposes of the global assessment of the likelihood of confusion, the average consumer of the goods in question is deemed to be reasonably well informed and reasonably observant and circumspect. Furthermore, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks, but must place his trust in his imperfect recollection of them. 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 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 also, by analogy, Lloyd Schuhfabrik Meyer, cited in paragraph 24 above, paragraph 26).
29      It is in the light of the foregoing considerations that the assessment made by the Board of Appeal of the likelihood of confusion between the conflicting signs must be examined.
30      In the present case, the earlier mark is a Community trade mark. Consequently, as the Board of Appeal found in paragraph 13 of the contested decision, a finding not contested by the applicant, the relevant territory is that of the European Union.
31      It is moreover common ground that the public targeted consists, as the Board of Appeal rightly noted in paragraph 13 of the contested decision, of the average consumer of the goods concerned, reasonably well informed and reasonably attentive and circumspect (see, to that effect, LA VICTORIA DE MEXICO, cited in paragraph 24 above, paragraph 32).
32      In the first place, as regards the similarity of the products concerned, it is clear that, as the Board of Appeal rightly observed in paragraph 16 of the contested decision, without being contradicted on this point by the applicant, the goods in Class 32 covered by the trade mark application and by the earlier mark are identical.
33      In the second place, as regards the similarity of the conflicting signs, it should be recalled that, as already pointed out in paragraph 27 above, the global assessment of the likelihood of confusion must, as regards the visual, phonetic or conceptual similarity of the marks in question, be based on the overall impression given by them, account being taken in particular of their distinctive and dominant components.
34      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 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, so that all the other components of the mark are negligible in the overall impression created by it (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, cited in paragraph 24 above, paragraph 37).
35      Secondly, where a mark is composed of word elements and figurative elements, the former are, as a rule, more distinctive than the latter, since 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, cited in paragraph 24 above, paragraph 38).
36      The signs to be compared are the following:
Earlier mark
Mark applied for
Bürgerbräu
37      First, as to the visual aspect, it is correct, as the Board of Appeal rightly observed in paragraph 29 of the contested decision, that the various figurative elements which compose the label of the mark applied for, combining different colours and including emblems of assorted kinds, are not particularly imaginative and will rather be perceived as decorative elements.
38      The dominant element of the mark applied for is undeniably the word element in capital letters which stands out, simply because of its position and the very large size of its lettering, from all the other elements which make up the label. Moreover, the other word elements of the mark applied for, namely ‘premium pils’, ‘traditional brewed quality’ and ‘original’, on the label are subsidiary and not very distinctive as regards the products concerned. In addition, having regard to the size of the letters used, those word elements will not be immediately legible to the consumer targeted.
39      In view of the fact that the dominant element of the mark applied for coincides with the word ‘bürger’ constituted by the first six letters of the earlier mark, there is thus a certain degree of visual similarity between the conflicting signs, even if it must be regarded as low.
40      Furthermore, it should be recalled that the consumer normally attaches more importance to the first part 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      The applicant claims, however, relying on the judgment of 13 September 2010 in Case T‑366/07 Procter & Gamble v OHIM – Prestige Cosmetics (P&G PRESTIGE BEAUTE), not published in the ECR, that there is only a very low degree of visual similarity between the conflicting signs.
42      On this point, it suffices to state that the Court considered, in paragraphs 63 to 68 of P&G PRESTIGE BEAUTE, cited in paragraph 41 above, that no visual similarity existed between the conflicting signs, on the ground that the element common to the signs, namely the element ‘prestige’, which was laudatory in nature and was to a certain extent descriptive of the characteristics and intended use of the goods concerned, was not the element occupying a more important position in the mark applied for, that being the element ‘p&g’. It followed that, visually, the most important elements of the conflicting signs did not coincide.
43      In the present case, on the other hand, the dominant element of the mark applied for coincides with the first six letters of the earlier word mark.
44      Furthermore, the applicant’s argument based on Case T‑301/03 Canali Ireland v OHIM – Canal Jean (CANAL JEAN CO. NEW YORK) [2005] ECR II‑2479 cannot be accepted either.
45      In that judgment the Court found that a visual difference existed between the word sign CANALI and the figurative sign CANAL JEAN CO. NEW YORK. It suffices to point out that the terms ‘canali’ and ‘canal’ were not considered to be identical, and that the other word elements of the mark applied for, namely ‘jean’, ‘co.’ and ‘new york’, were regarded as also attracting the attention of the consumer targeted (see paragraphs 49 to 51 of the judgment).
46      In the present case, apart from the fact that the six letters that form the word ‘bürger’ may be found in both the conflicting signs, it should be recalled that, as stated in paragraph 38 above, the other word elements of the mark applied for, besides being subsidiary and not distinctive as regards the goods concerned, are not immediately legible. Furthermore, the figurative elements will be perceived as merely decorative elements.
47      It follows from all the foregoing that the contested decision must be upheld as regards the analysis of the visual similarity of the conflicting signs.
48      Secondly, as to the phonetic aspect, as the Board of Appeal noted in paragraph 31 of the contested decision, there is an average degree of phonetic similarity between the conflicting signs, in view of the fact that the relevant consumers will tend not to pronounce the word elements ‘premium pils’, ‘traditional brewed quality’ and ‘original’ of the mark applied for that appear on the label, for the reasons mentioned in paragraph 38 above. Moreover, the relevant consumers will also tend not to pronounce those elements, simply to economise on words because they take time to pronounce and are easily separable from the dominant element of the mark applied for, namely the word ‘bürger’ (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).
49      The Board of Appeal’s finding that there is an average degree of phonetic similarity between the conflicting signs must therefore be upheld, that similarity moreover not being expressly contested by the applicant, since it does not put forward any arguments in support of its claim, even if it does assert that the phonetic similarity of the signs is very low.
50      Thirdly, as regards the conceptual comparison, it must be stated, as the Board of Appeal rightly observed in paragraph 32 of the contested decision, that the conflicting signs are conceptually similar for the German-speaking public, in so far as the dominant and most distinctive element of the mark applied for, the word ‘bürger’, and the first part of the earlier mark, ‘bürger’, which is the most distinctive part for that public, both refer to the same concept of ‘citizen’.
51      The applicant maintains, however, that no conceptual similarity exists for the non-German-speaking public of the European Union.
52      In this respect, it should be recalled that where, as in the present case, the earlier mark on which the opposition is founded is a Community mark, it is not a requirement of Article 8(1)(b) of Regulation No 207/2009 that, for the mark applied for to be refused registration, the likelihood of confusion must exist in all the Member States and in all linguistic regions of the European Union. The unitary character of the Community trade mark means that an earlier Community trade mark can be relied on in opposition proceedings against any application for registration of a Community trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (judgment of 18 September 2008 in Case C‑514/06 P Armacell v OHIM, not published in the ECR, paragraphs 56 and 57, and order of 16 September 2010 in Case C‑459/09 P Dominio de la Vega v OHIM, not published in the ECR, paragraphs 29 and 30).
53      Since, as stated in paragraph 30 above, the relevant territory is that of the European Union, it therefore suffices to observe that in the German-speaking part of the European Union the word ‘bräu’, in that it refers to the brewing of beer, will be perceived by the average consumer as descriptive of the goods concerned, so that that consumer’s attention will focus particularly on the word ‘bürger’.
54      It follows that, as the Board of Appeal rightly found in paragraph 32 of the contested decision, there is a conceptual similarity between the conflicting signs with respect to part of the public in the European Union because the signs share the word ‘bürger’, which has a precise meaning in the German language.
55      It must therefore be concluded from all the foregoing that, because of that conceptual similarity and despite a low degree of visual similarity and an average degree of phonetic similarity, the conflicting signs are globally similar.
56      In the third place, as regards the likelihood of confusion, it should be recalled that a likelihood of confusion exists if, cumulatively, the degree of similarity between the trade marks in question and the degree of similarity between the goods or services covered by those marks are sufficiently high (MATRATZEN, cited in paragraph 26 above, paragraph 45).
57      In the present case, it has been held in paragraph 32 above that the goods concerned are identical, and in paragraph 55 above that the conflicting signs are globally similar.
58      It follows that, considered cumulatively, the degree of similarity between the conflicting signs and the degree of similarity between the goods covered by those signs are sufficiently high. Consequently, the Board of Appeal was right to consider that there was a likelihood of confusion between the conflicting signs.
59      That conclusion is not invalidated by the applicant’s argument that the earlier mark has low distinctive character because the word ‘bürgerbräu’ is a common name for beers and the distinctive character of the earlier mark is weak or diluted as a result of the presence on the market of other trade marks for beer containing the word ‘bürgerbräu’.
60      In this respect, first, it should be recalled that it cannot indeed be entirely excluded that, in certain cases, the coexistence of earlier marks on the market could reduce the likelihood of confusion which the Opposition Division and the Board of Appeal find exists between two conflicting 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 on the absence of any likelihood of confusion on the part of the relevant public between the earlier marks on which it relies and the intervener’s earlier mark on which the opposition is based, and provided that the earlier marks concerned and the conflicting 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).
61      It is clear, however, in the present case that, as the Board of Appeal rightly found in paragraph 26 of the contested decision, it is not possible to infer from mere photocopies of different beer labels allegedly belonging to third parties any use at all of those signs on the European Union market, so that not even the identity of registrations coexisting on the market has been proved. Moreover, the applicant has in any event failed to show that that coexistence was based on the absence of a likelihood of confusion (see, to that effect, LIFE BLOG, cited in paragraph 60 above, paragraph 69 and the case-law cited). It follows that the applicant has not shown that the distinctive character of the earlier mark was weakened or diluted.
62      Secondly, it should be recalled that, although the distinctive character of the earlier mark must be taken into account for assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Accordingly, even where an earlier mark has weak distinctive character, there may be a likelihood of confusion, in particular where the signs and the goods or services concerned are similar (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 case here.
63      In the fourth place, as regards the applicant’s general argument that OHIM and the European Union judicature should have taken previous decisions into account, it suffices to point out that observance of the principle of equal treatment must be reconciled with observance specifically of the principle of lawfulness. According to the latter principle, no person may rely to his advantage on an unlawful act committed in another procedure (Case C‑51/10 P Agencja Wydawnicza Technopol v OHIM [2011] ECR I‑0000, paragraphs 75 and 76, and Case T‑304/06 Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart) [2008] ECR II‑1927, paragraph 65).
64      In the present case, it has become apparent that the application for registration was caught by the ground of refusal set out in Article 8(1)(b) of Regulation No 207/2009. It follows that the applicant cannot rely to any effect, for the purpose of casting doubt on the conclusion reached by the Board of Appeal in the contested decision, on previous decisions of OHIM or the European Union judicature (see, to that effect, Agencja Wydawnicza Technopol v OHIM, cited in paragraph 63 above, paragraphs 78 and 79).
65      The single plea in law put forward by the applicant must therefore be rejected and, in consequence, the action must be dismissed 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. 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 (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Scandic Distilleries SA to pay the costs.
Truchot
Martins Ribeiro
Popescu
Delivered in open court in Luxembourg on 18 September 2012.
[Signatures]
* Language of the case: English.