JUDGMENT OF THE GENERAL COURT (Second Chamber)
17 January 2012 (*)
(Community trade mark – Opposition proceedings – Application for the Community figurative mark HELL – Earlier Community word mark HELLA – Relative ground for refusal – Likelihood of confusion – Similarity of the goods and of the signs – Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑522/10,
Hell Energy Magyarország kft, established in Budapest (Hungary), represented by M. Treis, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Hansa Mineralbrunnen GmbH, established in Rellingen (Germany), represented by A. Renck, V. von Bomhard, E. Nicolás Gómez and T. Dolde, lawyers,
ACTION against the decision of the First Board of Appeal of OHIM of 5 August 2010 (Case R 1517/2009-1), relating to opposition proceedings between Hansa Mineralbrunnen GmbH and Hell Energy Magyarország,
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood, President, J. Schwarcz (Rapporteur) and A. Popescu, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 8 November 2010,
having regard to the response of OHIM lodged at the Registry on 18 March 2011,
having regard to the response of the intervener lodged at the Registry on 21 March 2011,
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 General Court,
gives the following
Judgment
Background to the dispute
1        On 15 May 2007, the applicant, Hell Energy Magyarország kft, 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        Registration as a mark was sought for the following figurative sign:
3        The goods in respect of which registration was sought are in Class 32 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Non-alcoholic drinks, energy drinks/beverages’.
4        The Community trade mark application was published in Community Trade Marks Bulletin No 63/2007 of 19 November 2007.
5        On 17 December 2007, the intervener, Hansa Mineralbrunnen GmbH, filed a notice of opposition pursuant to Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6        The opposition was based on the earlier Community word mark Hella, filed on 14 June 2006 and registered on 2 August 2007 under the number 5135331, which designates goods in Class 32 corresponding to the following description: ‘Mineral and aerated waters and other non-alcoholic drinks, fruit drinks and fruit juices; syrups and other preparations for making beverages; lemonades, effervescent drinks and fruit drinks, dietetic, non-alcoholic drinks, not for medical purposes.’
7        The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009).
8        On 5 October 2009, the Opposition Division upheld the opposition in respect of all the goods covered by the trade mark application.
9        On 7 December 2009, the applicant filed a notice of appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
10      By decision of 5 August 2010, the First Board of Appeal of OHIM upheld the Opposition Division’s decision, thus dismissing the applicant’s appeal (‘the contested decision’). Having regard to the identity of the goods covered by the marks at issue and the existence of a certain degree of similarity, at least visually and aurally, between those marks, although, conceptually they were not similar only in respect of the part of the relevant territory where one of the signs was understood, it found that there was a likelihood of confusion on the part of the public in the territory of the European Union, in which the earlier mark was protected, for all the contested goods, within the meaning of Article 8(1)(b) of Regulation No 207/2009.
Forms of order sought
11      The applicant claims that the Court should:
–        declare the action admissible;
–        annul the contested decision;
–        register the application for the Community trade mark;
–        order the intervener to pay the costs incurred by the applicant in the proceedings before the Court and before the Opposition Division and the First Board of Appeal of OHIM.
12      OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
13      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred by the intervener.
Law
1.     Admissibility of the head of claim requesting the Court to register the mark applied for
14      The applicant requests the Court to register the mark applied for. Such a head of claim must be interpreted as requesting the Court to issue directions to OHIM to register that mark.
15      According to settled case-law, in an action before the Courts of the European Union against the decision of a Board of Appeal of OHIM, OHIM is required, under Article 65(6) of Regulation No 207/2009, to take the measures necessary to comply with judgments of the European Union judicature. Accordingly, it is not for the General Court to issue directions to OHIM. It is for the latter to draw the appropriate inferences from the operative part and grounds of the Court’s judgments (see, by analogy, Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [2007] ECR II-2579, paragraph 20 and the case-law cited). Therefore, the applicant’s head of claim requesting the Court to issue directions to OHIM to allow the application for registration is inadmissible.
2.     The restriction of the goods designated in the application for registration
16      In its response, OHIM states that, on 17 November 2010, that is to say, after the present action was brought, the applicant submitted an application to restrict the list of goods covered by the mark applied for solely to ‘energy drinks’ by deleting the reference to ‘non-alcoholic drinks’.
17      In principle, a restriction within the meaning of Article 43(1) of Regulation No 207/2009 to the list of goods or services contained in a Community trade mark application made after the adoption of the decision of the Board of Appeal challenged before the Court cannot affect the legality of that decision, which is the only decision being challenged before the Court (see, by analogy, Case T-304/06 Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart) [2008] ECR II‑1927, paragraph 25 and the case-law cited).
18      However, a statement made by a trade mark applicant, subsequent to the decision of the Board of Appeal, by which he withdraws his application in respect of some of the goods initially covered, may be interpreted as a statement that the contested decision is being challenged only in so far as it covers the remainder of the goods concerned or as a partial withdrawal, where the statement is made at an advanced stage of the proceedings before the Court, which does not change the subject-matter of the proceedings. Therefore, such a restriction must be taken into account by the Court, in so far as it is asked to review the legality of the Board of Appeal’s decision not in so far as it relates to the goods or services withdrawn from the list but only in so far as it relates to the other goods or services remaining on that list (see, by analogy, Mozart, paragraph 17 above and the case-law cited).
19      Where the restriction of the list of goods or services contained in a Community trade mark application has the object of changing, in whole or in part, the description of those goods or services, it cannot be ruled out that such an alteration might have had an effect on the examination of the trade mark in question carried out at various stages by OHIM in the course of the administrative procedure. Accordingly, to allow that alteration at the stage of the action before the Court would amount to changing the subject-matter of pending proceedings, which is prohibited by Article 135(4) of the Rules of Procedure of the General Court (see Mozart, paragraph 17 above, paragraph 29).
20      In the present case, the restriction made by the applicant consisted of withdrawing from the list of goods designated in the trade mark application the reference to ‘non-alcoholic drinks’ and of retaining only the reference to ‘energy drinks’. Such a restriction may be taken into consideration by the Court.
21      Consequently, it must be held that, for the purposes of the present dispute, the goods covered by the mark applied for, which are in Class 32 and to which the opposition relates, correspond to the description ‘energy drinks’.
3.     Substance
22      In support of the action, the applicant relies on two pleas in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009 and infringement of the EC Treaty.
Infringement of Article 8(1)(b) of Regulation No 207/2009
23      Under Article 8(1)(b) of Regulation No 207/2009, 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, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.
24      Furthermore, under Article 8(2)(a) of Regulation No 207/2009, ‘earlier trade marks’ means trade marks registered in a Member State or 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.
25      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 (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). According to the same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and the goods or services concerned and taking into account all factors relevant to the circumstances of the case (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraphs 30 and 31 and the case-law cited).
26      That global assessment implies some interdependence between the factors taken into account, and in particular between the similarity of the trade 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, and GIORGIO BEVERLY HILLS, paragraph 25 above, paragraph 32).
27      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue 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).
28      The question whether the Board of Appeal was correct to hold that there was a likelihood of confusion between the earlier mark and the trade mark applied for must be examined in the light of those considerations.
The relevant public
29      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of products concerned, who is reasonably well informed and reasonably observant and circumspect. However, 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 retained in his mind (Lloyd Schuhfabrik Meyer, paragraph 25 above, paragraph 26, and Case T-256/04 Mundipharma v OHIM – Altana Pharma (RESPICUR) [2007] ECR II-449, paragraph 42).
30      The applicant submits that the Board of Appeal did not correctly define the relevant public by not distinguishing consumers of ‘energy drinks’ from consumers of ‘non-alcoholic drinks’.
31      The Board of Appeal stated in paragraphs 17 and 32 of the contested decision, that the relevant public consisted of average European Union consumers as the goods covered by the marks at issue are goods of ‘everyday’ consumption.
32      It must be borne in mind at the outset that, after taking into account the restriction of the list of goods (see paragraphs 20 and 21 above), the mark applied for covers energy drinks.
33      Although the applicant maintains that consumers of energy drinks constitute a specific public, consisting mainly of teenagers, categorised by it as ‘hip’ or ‘cool’ people and as ‘partygoers’, who are more receptive to the alleged effects of those drinks and more attentive in distinguishing the marks at issue, it must be pointed out that, as energy drinks are goods of everyday consumption, the Board of Appeal was right to find, in paragraph 32 of the contested decision, that the relevant public was the general public, whose degree of attention would not, in its opinion, be higher than average. Furthermore, the applicant has not shown that, as regards those goods, the consumer would, on account of belonging to an age group or of his party-going habits, display a high degree of attention when purchasing them, as the Court was able to hold as regards goods of which consumers belonging to the younger generation may have specific expectations, for example, at the technological level (judgment of 9 September 2010 in Case T‑106/09 adp Gauselmann v OHIM – Maclean (Archer Maclean’s Mercury), not published in the ECR, paragraph 20).
34      Therefore, it is apparent from paragraphs 32 and 33 above that the Board of Appeal was right to find that the relevant public consisted of average consumers in the European Union who do not display a higher than average degree of attention.
The comparison of the goods
35      According to settled case-law, in assessing the similarity of the goods or services concerned, all the relevant factors relating to those goods or services should be taken into account. Those factors include, 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, by analogy, Canon, paragraph 25 above, paragraph 23 and PiraÑAM diseño original Juan Bolaños, paragraph 15 above, paragraph 37 and the case-law cited).
36      It must be borne in mind that, where the goods covered by the earlier mark include the goods covered by the trade mark application, those goods are considered to be identical (Case T‑104/01 Oberhauser v OHIM – Petit Liberto (Fifties) [2002] ECR II‑4359, paragraphs 32 and 33, and Case T-346/04 Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE) [2005] ECR II-4891, paragraph 34).
37      In the first place, the applicant submits that the Board of Appeal erred by not recognising just how distinct energy drinks are from non-alcoholic drinks in their nature, intended purpose and method of use, and that it incorrectly found that the goods covered by the marks at issue were identical, on the extremely simplistic ground that they are beverages. Rather than satisfying thirst, the main purpose of energy drinks is to improve physical activity and to increase mental alertness and physical performance.
38      In the second place, the Board of Appeal did not take into account the brand loyalty of consumers of energy drinks, who are particularly selective and attentive at the time of purchase.
39      First of all, it must be pointed out that the applicant does not dispute that the goods covered by the mark applied for, namely energy drinks, are part of the wider category of non-alcoholic drinks, covered by the earlier mark.
40      Secondly, the goods covered by the mark applied for and those covered by the earlier mark have common characteristics, as they are non-alcoholic drinks the main virtue of which is that they refresh, but also, as regards energy drinks and certain other non-alcoholic drinks like mineral and aerated waters or fruit juices, covered by the earlier mark, that they revitalise the body by providing it with a supply of energy.
41      The Board of Appeal was therefore right to find, in paragraph 20 of the contested decision, that, as the energy drinks covered by the mark applied for are included in the broader category of non-alcoholic drinks, covered by the earlier mark, the goods covered by the marks at issue are thus identical.
42      The applicant is not able, by its arguments relating to the difference in nature, intended purpose, method of use and distribution of the goods covered by the marks at issue, particularly in the light of the characteristics common to energy drinks and to certain other drinks covered by the earlier mark (see paragraph 40 above), to call into question the finding in the preceding paragraph. The same is true of the argument relating to the fact that the relevant public shows brand loyalty when it purchases energy drinks. That argument cannot be taken into consideration in analysing the similarity or identity of the goods covered by the marks at issue as such an analysis must be carried out objectively, having regard, on the one hand, to the goods covered by the earlier mark and, on the other hand, to those covered by the mark applied for.
43      The Board of Appeal was therefore correct in finding that the goods covered by the marks at issue are identical.
The comparison of the signs
44      The global assessment of the likelihood of confusion, in relation to 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 (Case C‑251/95 SABEL [1997] ECR I-6191, paragraph 23; Lloyd Schuhfabrik Meyer, paragraph 25 above, paragraph 25; and Case C‑334/05 P OHIM v Shaker [2007] ECR I-4529, paragraph 35).
45      According to settled case-law, two marks are similar when, 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, and judgment of 26 January 2006 in Case T‑317/03 Volkswagen v OHIM – Nacional Motor (Variant), not published in the ECR, paragraph 46).
46      Moreover, this Court has held 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. It is only if all the other components of the mark are negligible, however, 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, 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).
–       The visual similarity
47      The applicant submits that the Board of Appeal erred in assessing whether the signs at issue were visually similar by not taking into consideration, in respect of the mark applied for, visual ‘facts’ such as colour and style, which emphasise the hell theme, regarding them as negligible in the overall impression created by that mark.
48      The Board of Appeal found, in paragraphs 25 and 26 of the contested decision, that the signs at issue were globally similar from a visual point of view. It arrived at that analysis after stating, first, that the initial part of the earlier mark consisting of the first four letters thereof, namely ‘hell’, is reproduced in the mark applied for in standardised script, the only difference between the signs at issue being the presence of the letter ‘a’ in the earlier mark; secondly, that it is irrelevant whether the earlier word mark is written in upper case or lower case letters; and, thirdly, that the colour and stylisation of the mark applied for cannot counteract the similarities between the two signs.
49      Although the Board of Appeal, in the contested decision, only briefly referred to the colour and style of the mark applied for, it may not be claimed that it visually compared the signs at issue by confining itself to comparing only the terms ‘hella’ and ‘hell’ and regarding them as dominant in each of those signs within the meaning of the case-law cited in paragraph 46 above. By contrast, it took the view that, in the light of the visual similarity between the two signs, the words of which they consist differing only by a single letter, moreover the last letter, the colour and stylisation of the mark applied for could not, by themselves, counterbalance that similarity. Consequently, the Board of Appeal neither analysed the visual similarity of the signs at issue on the basis of alleged dominant elements nor regarded certain aspects of those signs as negligible.
50      In the light of the great visual similarity of the words constituting the signs at issue, the earlier mark being a word mark which may, like the mark applied for, be written in upper case letters, and of the little impact which the colours and stylisation of the mark applied for are likely to have on the relevant public, the Board of Appeal was right to find that there is visual similarity.
–       The aural similarity
51      The applicant submits that, from an aural point of view, the Board of Appeal did not sufficiently take into account the influence which the different endings of each of the signs at issue may have. In the present case, account should have been taken of the fact that the vowel ‘a’ at the end of the earlier mark has a great deal of influence on its pronunciation as that vowel is emphasised in a great many European Union languages.
52      In paragraph 27 of the contested decision, the Board of Appeal found that the signs at issue are globally similar from an aural point of view as their first syllables are the same and the mere addition of the letter ‘a’ in the earlier mark would not be accentuated in some EU languages and could thus go unnoticed.
53      Although the applicant submits that a small difference between two relatively short word signs may lead to a different overall impression, it must be stated that, in the present case, the difference between the signs at issue relates only to a single letter, the last letter in the earlier mark, and that, as the intervener states, the whole of the mark applied for is present in the earlier mark. Therefore, such a difference between the signs cannot suffice, from an aural point of view, to distinguish them sufficiently, since the applicant has not shown that the Board of Appeal’s assessment, according to which part of the relevant public in the European Union would not accentuate the letter ‘a’ in the earlier mark, is incorrect.
54      The Board of Appeal was therefore correct in finding that the signs at issue are aurally similar.
–       The conceptual similarity
55      From a conceptual point of view, the applicant submits that the signs at issue are different, as the colours and stylisation of the word ‘hell’, an English word understood by the general public, clearly refer to the hell theme.
56      It must be pointed out that, in paragraph 28 of the contested decision, the Board of Appeal admitted that, part of the relevant public will perceive the signs at issue as conceptually different, having regard to the fact that the word constituting the earlier mark or the word constituting the mark applied for will be understood. In respect of the parts of the European Union in which that is the case, there is, according to the Board of Appeal no conceptual similarity between the signs at issue. By contrast, in the parts of the territory of the European Union in which neither of the signs at issue has any meaning for the relevant public, the Board of Appeal took the view that a conceptual comparison of those signs will not influence the assessment of their similarity.
57      As OHIM points out in defence, it is not necessary, in order to assess whether there is likelihood of confusion, for such a likelihood to exist throughout the territory taken into consideration by the Board of Appeal and in all the linguistic zones in that territory. The Board of Appeal found that, for part of the relevant public, the mark applied for has no meaning.
58      On that point, the applicant’s argument as to the relevant public’s understanding of the English word ‘hell’ and the numerous references to the names of films, songs and musical groups or to expressions which have become part of everyday language in various European Union countries, do not invalidate the Board of Appeal’s finding. Such factors, although they indicate that the meaning of that word is certainly known of by part of the relevant public in part of the territory of the European Union, does not show that the relevant public, which is the average consumer, will attribute to that word the meaning of ‘hell’ throughout the territory relevant in assessing the conceptual similarity of the marks at issue.
59      Neither can the reference made to the judgment of the Court in Case T‑43/05 Camper v OHIM – JC (BROTHERS by CAMPER), not published in the ECR, call into question the Board of Appeal’s finding as regards the conceptual similarity of the signs at issue. In that case, the relevant public, having regard to the earlier national marks cited in opposition, consisted of average Danish and Finnish consumers, who, as the Court stated in paragraph 55 of the judgment, generally also understand English in addition to the national languages of their respective countries. That is not the case here as the relevant public consists of average consumers in the European Union.
60      The argument that the stylisation of the sign of the mark applied for facilitates the understanding of its meaning as the colours yellow, red and black convey the image that the applicant’s goods are ‘powerful as hell’ is not, for the following reasons, capable of influencing the assessment of the conceptual similarity of the marks at issue. The Court can only state, as is apparent from the examination of the mark applied for (see paragraph 2 above), first, that the word forming the mark applied for is written in a standard font, without the addition of any specific effect; secondly, that the three colours of the letters in the word are not very pronounced; and, thirdly, that the arrangement of those colours does not make it possible, without a doubt, to understand the meaning of that sign, because the lower part of each of the letters is black, the upper part is red and there is a narrow band of yellow around those parts, each letter has a black line around it, which is itself surrounded by a kind of fine, yellow halo. As the graphic characteristics of that sign are therefore not very elaborate, they are not capable of facilitating understanding in the way referred to by the applicant.
61      Consequently, the Board of Appeal was right to find that, in the parts of the territory of the European Union where neither of the signs at issue has any meaning, the conceptual comparison does not influence the assessment of their similarity.
62      It follows from all the foregoing that the signs at issue are visually and aurally similar.
The likelihood of confusion
63      It must be borne in mind that the global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade 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 (Canon, paragraph 25 above, paragraph 17, and Joined Cases T-81/03, T‑82/03 and T‑103/03 Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame) [2006] ECR II-5409, paragraph 74).
64      The applicant takes the view that the Board of Appeal did not, when assessing the likelihood of confusion, balance the ‘factors’ of the marks at issue correctly, by not analysing, first, the differences between the relevant consumers of the goods covered by those marks and their respective abilities to distinguish between them accurately and, secondly, the clear differences between those goods. In order to find that there was a likelihood of confusion, the Board of Appeal pointed out a similarity between those goods by oversimplifying them as beverages, whereas they are different goods, which are consumed and used by different consumers, trade marks for beverages conveying images which are lifestyle expressions. Furthermore, the Board of Appeal reproduced without thinking the idea that the goods covered by the marks at issue are ordered orally in noisy environments.
65      In assessing the likelihood of confusion, the Board of Appeal first of all stated, in paragraph 32 of the contested decision, that the relevant public was the general public, which does not display a higher than average degree of attention with respect to energy drinks. Secondly, in paragraph 33 of the contested decision, the Board of Appeal highlighted the fact that the marks at issue were visually and aurally so similar that a likelihood of confusion could not be excluded, in particular having regard to the fact that consumers purchased the goods in question without in-depth analysis. It also pointed out, in paragraphs 34 and 35 of the contested decision, that the aural impact is, in the present case, of greater importance than the visual or conceptual impression as the goods in question are mostly purchased in a noisy environment, like a bar or a restaurant, and ordered orally, and that, even if they were purchased in a supermarket, the degree of similarity between the marks at issue would tend to give rise to a likelihood of confusion between them, even from a visual point of view.
66      The Board of Appeal concluded that, in view of the identity of the goods at issue and the visual and aural similarities between the marks at issue, there was a likelihood of confusion on the part of the public in the territory of the European Union in which the earlier mark was protected.
67      On account of the visual and aural similarities between the marks at issue and the identity of the goods in question, the Board of Appeal was right to find that there is a likelihood of confusion.
68      It is necessary to reject the argument that the Board of Appeal erred in finding that there was a likelihood of confusion on the ground that it did not take into consideration the differences between the consumers and between the goods covered by the marks at issue, bearing in mind that the ‘energy drinks’ covered by the mark applied for are included in the non-alcoholic drinks for which the earlier mark is registered and which are not confined to a category of the relevant public, an intended purpose or a given distribution method.
69      Lastly, although the Board of Appeal took the view that the goods covered by the marks at issue are generally ordered in noisy environments and are mainly purchased orally, it did not restrict its analysis of the likelihood of confusion between those marks merely to their aural similarity. On the contrary, it also took into account the marketing method to which the applicant refers by stating that, when the goods are purchased in a supermarket, the visual similarity between the marks at issue could also give rise to a likelihood of confusion.
70      Consequently, the Board of Appeal was correct in finding that there is a likelihood of confusion between the marks at issue.
Infringement of the EC Treaty
71      In its second plea, the applicant submits that the Board of Appeal granted the intervener a trade mark monopoly in excess of its sphere of business activities and more particularly the rights attached to the earlier mark, which constitutes infringement of the EC Treaty and is contrary to the general principles of free movement of goods and competition.
72      OHIM submits that the plea is inadmissible as the applicant does not put forward, in support of that plea, any explanation other than the argument relating to the monopoly granted to the intervener.
73      In any event, it must be pointed out that that plea is unfounded. Article 9(1) of Regulation No 207/2009 clearly lays down that a Community trade mark confers on the proprietor exclusive rights therein which entitle him to prevent all third parties from using any sign where, because of its identity with or similarity to the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign concerned, there exists a likelihood of confusion on the part of the public (see, to that effect and by analogy, judgment of 1 July 2008 in Case T-328/05 Apple Computer v OHIM – TKS-Teknosoft (QUARTZ), not published in the ECR, paragraph 68).
74      Since the existence of a likelihood of confusion was established above, the alleged monopoly consists of nothing more than the legitimate exercise of those exclusive rights. In that connection it must be noted, first, that the free movement of the product covered by the mark applied for is limited only in so far as it infringes the exclusive rights of the proprietor of the earlier mark and, second, that Article 36 TFEU recognises derogations from the principle of the free movement of goods justified on grounds of the protection of industrial and commercial property (see, to that effect and by analogy, QUARTZ, paragraph 73 above, paragraph 69).
75      Since none of the pleas in law relied upon by the applicant is well founded, the action must be dismissed in its entirety.
Costs
76      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 forms of order sought by OHIM and the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Hell Energy Magyarország kft to pay the costs.
Forwood
Schwarcz
Popescu
Delivered in open court in Luxembourg on 17 January 2012.
[Signatures]
* Language of the case: English.