JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
6 December 2013 (*)
(Community trade mark – Opposition proceedings – Application for the Community word mark ECOFORCE – Earlier Community figurative mark ECO FORTE – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑361/12,
Premiere Polish Co. Ltd, established in Cheltenham (United Kingdom), represented by C. Jones and M. Carter, Solicitors,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by I. Harrington, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Donau Kanol GmbH & Co. KG, established in Ried im Traunkreis (Austria),
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 8 June 2012 (Case R 851/2011‑4), relating to opposition proceedings between Donau Kanol GmbH & Co. KG and Premiere Polish Co. Ltd,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias, President, M. Kancheva (Rapporteur) and C. Wetter, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 6 August 2012,
having regard to the response lodged at the Court Registry on 26 November 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 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 22 December 2009, the applicant, Premiere Polish Co. Ltd, filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2        Registration as a mark was sought for the word sign ECOFORCE.
3        The goods in respect of which registration was sought are in Class 3 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: ‘Preparations and substances all for laundry use; cleaning, polishing, scouring, descaling and abrasive preparations; soaps; turpentine substitute; paint or polish stripping preparations and substances; water closet colouring materials; antistatic preparations and substances; and rinse additives’.
4        The trade mark application was published in Community Trade Marks Bulletin No 2010/039 of 1 March 2010.
5        On 11 March 2010, Donau Kanol GmbH & Co. KG filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 against registration of the mark applied for in respect of all the goods referred to in paragraph 3 above.
6        The opposition was based on the earlier Community figurative mark including inter alia the word elements ‘eco’ and ‘forte’ written in yellow on a green background, which was registered on 4 May 2009 under the number 7243173 and is reproduced below:
7        The earlier mark was registered inter alia for goods in Class 3 corresponding to the following description: ‘Bleaching preparations and other substances for laundry use; cleaning, polishing, scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’.
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        On 4 April 2011, the Opposition Division upheld the opposition.
10      On 19 April 2011, 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. Donau Kanol did not file any observations in reply to that appeal.
11      By decision of 8 June 2012 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal. In particular, it found that there was a likelihood of confusion between the marks at issue within the meaning of Article 8(1)(b) of Regulation No 207/2009, given the identity of the goods covered by those marks and taking into account the marks’ low degree of visual similarity, high degree of phonetic similarity and their conceptual similarity, for the public in some Member States of the European Union, and the average distinctiveness of the earlier mark. It took the view that the visual differences were insufficient to allow consumers who display an average degree of attentiveness to distinguish between those marks without a likelihood of confusion.
12      As regards, more particularly, the comparison of the signs at issue, the Board of Appeal stated that, visually, first, the word elements ‘eco’ and ‘forte’ were located in a central position in the earlier mark, the word ‘forte’ did not dominate over the word ‘eco’ and that the figurative elements were only of secondary importance in that mark in the light of their essentially decorative nature in the perception of the relevant public. Secondly, it pointed out that seven of the eight letters of which the mark applied for consists and the word elements of the earlier mark were not only identical, but were also positioned according to the same sequence. Consequently, in spite of the figurative elements of the earlier mark, which had no equivalents in the mark applied for, the Board of Appeal discerned a low degree of visual similarity between the two marks. Phonetically, the Board of Appeal found that the marks were highly similar, the only difference lying in the final syllables of the two signs, which, due to the common vowel ‘e’, were also capable of showing phonetic similarities. Conceptually, the Board of Appeal took the view that there was conceptual similarity between the two marks for consumers in certain Member States of the European Union, in particular English- and French-speaking consumers, inasmuch as they would recognise the elements ‘eco’, ‘forte’ and ‘force’. By contrast, as regards the remaining consumers, the conceptual comparison of the two signs was neutral. Generally, the Board of Appeal stated that, considered as a whole, neither of the signs at issue had a meaning in any of the languages of the European Union.
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        allow, in its entirety, its application for registration of the Community trade mark or, in the alternative, refer the case back to the Board of Appeal;
–        order OHIM to pay the costs.
14      OHIM contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
15      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. It submits, in essence, that the Board of Appeal infringed that provision inasmuch as it should have found that the signs at issue were sufficiently different from the visual, phonetic and conceptual points of view and that there was no likelihood of confusion between them for the relevant public.
16      OHIM disputes the applicant’s arguments and puts forward a plea of inadmissibility with regard to the applicant’s second head of claim.
17      As a preliminary point, the Court considers it appropriate to examine the admissibility of the applicant’s second head of claim, which seeks to have the application for registration of the Community trade mark allowed in its entirety or, in the alternative, to have the case referred back to the Board of Appeal. In that regard, it is sufficient to point out that, 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 Courts of the European Union. 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 judgments of the Courts of the European Union (see 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.
18      As regards the substance of the present case, the Court points out, first, that Article 8(1)(b) of Regulation No 207/2009 provides that upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. Under Article 8(2)(a)(i) of that regulation, an earlier trade marks means a Community trade mark with a date of application for registration which is earlier than the date of application for registration of another Community trade mark.
19      Secondly, according to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the perception which the relevant public has of the signs and the goods or services in question, account being taken of all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II-2821, paragraphs 30 to 33 and the case-law cited).
20      Lastly, where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, for a Community trade mark not to be registered, it suffices that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 207/2009 exists in part of the European Union (see, to that effect, Joined Cases T‑81/03, T‑82/03 and T‑103/03 Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and Others) [2006] ECR II‑5409, paragraph 76 and the case-law cited).
21      In the present case, the Court points out that the only question under consideration before it is whether the Board of Appeal was right to find that the signs at issue were sufficiently similar to enable it to conclude that there was a likelihood of confusion on the part of the relevant public. As regards the relevant public, the applicant does not dispute the Board of Appeal’s assessments that the goods at issue are everyday consumer goods intended for the general public and that the relevant public consists of end consumers in the European Union, who are reasonably well informed and reasonably observant and circumspect. In respect of the goods at issue, the applicant does not dispute the Board of Appeal’s assessment that the goods covered by the marks at issue are identical.
The comparison of the signs
22      The applicant claims, first, that there is no visual similarity or, at most, a very low degree of visual similarity between the signs at issue. Secondly, it submits that there is no phonetic similarity or, at most, a low degree of phonetic similarity between those signs. Thirdly, it claims that the earlier mark has a clear conceptual meaning, which derives from its figurative elements, unlike the mark applied for, which is devoid of any such meaning.
23      OHIM disputes the applicant’s arguments.
24      In that regard, the Court points out that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 35 and the case-law cited).
25      More specifically, in a case involving a composite mark, assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see OHIM v Shaker, cited in paragraph 24 above, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (OHIM v Shaker, cited in paragraph 24 above, paragraph 42, and judgment of 20 September 2007 in Case C‑193/06 P Nestlé v OHIM, not published in the ECR, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public keep in their minds, so that all the other components are negligible in the overall impression created by that mark (Nestlé v OHIM, paragraph 43).
26      In the present case, the Court considers it appropriate to examine, as a preliminary point, the applicant’s argument that the Board of Appeal erred in finding that the word elements of the earlier figurative mark were to be perceived as corresponding to the expression ‘eco forte’. Such a preliminary examination is required because, in a sign consisting of both word and figurative elements, the positioning of the word elements not only has an influence on the visual perception of that sign, but also determines the way in which the relevant public perceives it aurally.
27      In that regard, the applicant submits that the Board of Appeal did not take into consideration the dominant position of the element ‘forte’, the presence of a yellow line under that word and the substantially greater size of the letter ‘f’ as well as the role of the circular element in the shape of an ‘o’ following the group of letters ‘ec’ and, as the case may be, the weak distinctive character of the element ‘eco’.
28      The Court points out that the Board of Appeal correctly found, in paragraphs 16 and 17 of the contested decision, that, faced with the earlier figurative mark, the average consumer belonging to the relevant public would perceive the word elements of that mark as consisting of the words ‘eco’ and ‘forte’, read in that order. First, it cannot be claimed that the upper part of those word elements will be perceived as ‘ec’ or ‘ec‑o’ instead of ‘eco’, given the identical font used for the group of letters ‘ec’ and the element ‘o’, the location of the latter after those letters and its size, which is barely greater than that of the letters which precede it. Secondly, the order in which the two word elements ‘eco’ and ‘forte’ are read cannot, as the applicant claims, be the reverse of that stated by the Board of Appeal, both because the relevant public tends to read from top to bottom and from left to right and because there is no notable difference in size between the two elements in question which would be capable of conferring a clearly dominant character on one of them.
29      That finding cannot be invalidated by the applicant’s claim, allegedly based on paragraph (c) of the Opposition Division’s decision, that the word ‘eco’ has a weak distinctive character, which has the consequence that consumers, when they recall the earlier figurative mark, either omit that term or place it after the word ‘forte’. It must be stated, as OHIM points out, that the Board of Appeal confined itself to stating, in paragraph 20 of the contested decision, that, for part of the relevant public, namely consumers who understand the word ‘eco’ as meaning ‘ecological’, the two signs would to that extent be conceptually similar. It is sufficient to point out that this statement by the Board of Appeal does not relate to the visual analysis of the two marks and is not, moreover, disputed by the applicant. In any case, the applicant does not adduce any evidence in support of its claim that the word element ‘eco’ proves to be negligible in the relevant public’s perception of the earlier figurative mark.
30      In the light of the examination of that preliminary argument, the Board of Appeal did not err in finding that the word elements of the earlier figurative mark correspond to ‘eco forte’.
31      As regards, first, the visual comparison of the signs at issue, the applicant complains that the Board of Appeal singled out the word elements ‘eco forte’ in the earlier mark and did not take into account the very dominant, floral, figurative element, having considered it to be decorative and not distinctive.
32      In that connection, it must be borne in mind that, according to well-established case-law, in the case of a mark consisting of both word and figurative elements, the word elements must generally be regarded as more distinctive than the figurative elements, or even as dominant, since the relevant public will keep in mind the word elements to identify the mark concerned, the figurative elements being perceived more as decorative elements (see, to that effect, Case T‑312/03 Wassen International v OHIM – Stroschein Gesundkost (SELENIUM‑ACE) [2005] ECR II‑2897, paragraph 40; judgment of 15 November 2011 in Case T‑434/10 Hrbek v OHIM – Outdoor Group (ALPINE PRO SPORTSWEAR & EQUIPMENT), not published in the ECR, paragraph 55; 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 46; and judgment of 2 February 2012 in Case T‑596/10 Almunia Textil v OHIM – FIBA‑Europe (EuroBasket), not published in the ECR, paragraph 36).
33      In the present case, it is necessary to uphold the Board of Appeal’s finding, in paragraph 15 of the contested decision, that the word elements of the earlier mark are clearly dominant and are located in a central position in the sign, before observing that, with the exception of a single letter (‘t’ or ‘c’), the signs ECO FORTE and ECOFORCE comprise the same letters placed in the same order.
34      Having regard to the composition of the earlier mark, it is its word elements, written in capital letters and in a very legible font, which are immediately perceptible. They stand out in yellow against a green background and are accompanied by two figurative elements which are banal and of limited visual importance. They are, first, a horizontal line underlining the element ‘forte’ and, secondly, the petals of a stylised flower placed round the letter ‘o’, which is larger in size and is part of the word ‘eco’.
35      It is true that the figurative element of the earlier mark must in no way be disregarded in the overall assessment of the similarity of the signs at issue, as the applicant rightly points out. However, in view of the limited number of colours used, namely yellow and green, and of the banal nature of the arrangement of the shapes around the word element and their lack of any specific distinctive character, the figurative element of the earlier mark is not likely to make an impression on consumers and be remembered by them. Consequently, it has not been established in the present case that the figurative element of the earlier mark has its own semantic content and that it is a configuration which is elaborate enough to be capable of having a substantial influence on the overall impression created by the earlier mark.
36      The Board of Appeal therefore did not err in finding that the word elements of the earlier mark are likely to dominate the overall impression created in the minds of members of the relevant public and that, visually, there is a low degree of similarity between the signs at issue. Furthermore, the Board of Appeal took due account of the figurative element of the earlier mark, which it regarded as the source of the low degree of visual similarity.
37      As regards, secondly, the phonetic similarity of the signs, the applicant, first, claims that the earlier mark will be pronounced as two words, ‘eco’ and ‘forte’, which will be separated by a natural pause and have greater stress on the letter ‘f’, and, secondly, disputes the phonetic similarities pointed out by the Board of Appeal, on the ground that it is well known that the letter ‘e’ at the end of a word may, in the languages of the European Union, be pronounced as a long ‘ee’ or a short ‘e’ or even be silent.
38      The Board of Appeal found, in paragraph 19 of the contested decision, that the two signs were highly similar, the only difference between them being their last syllable, ‘te’ in the earlier mark and ‘ce’ in the mark applied for. The Board of Appeal, however, took the view that, since both of those syllables contained the vowel ‘e’, there could also be some phonetic similarity between them.
39      In that regard, the Court points out that the eight letters of which the signs ECO FORTE and ECOFORCE consist are, with the exception of the penultimate letter, identical and appear in the same order. Even though the penultimate letters ‘t’ and ‘c’ may have an influence on the pronunciation of the words ‘force’ or ‘forte’ as one or two syllables in some languages of the European Union, their effect on the overall pronunciation of the word elements of the signs can be only minor, with the result that members of the relevant public who hear those word elements spoken when purchasing a product of the ECOFORCE brand may be led to confuse it with a product of the ECO FORTE brand. It is therefore clear that the marks at issue are highly similar phonetically, in view of the fact that not only the letters, but also, and above all, the syllables of which the word elements of the signs at issue consist, have the same sequence.
40      Furthermore, although it is not inconceivable that the earlier mark may be pronounced as two words, ‘eco’ and ‘forte’, which are separated by a natural pause and have greater stress on the letter ‘f’, as claimed by the applicant, it must be pointed out, as observed by OHIM, that the average consumer may not dissociate those words, which are short and do not have an inherent meaning for at least part of the relevant public.
41      Consequently, the Board of Appeal was right to find that the signs at issue were highly similar phonetically.
42      As regards, thirdly, the conceptual comparison of the signs at issue, the applicant submits, first, that the Board of Appeal erred in equating the meaning of the word ‘forte’ in the earlier mark with that of ‘force’ in the mark applied for so far as concerns English- and French-speaking consumers, who are capable of attributing the separate meanings of ‘strong point’ and ‘physical strength’ to the two words, and, secondly, that the conceptual comparison of the two signs at issue implies that the meanings of a floral nature of the figurative element of the earlier mark must be taken into consideration.
43      The Court points out, at the outset, that the applicant does not dispute the Board of Appeal’s assessments, in paragraph 20 of the contested decision, that the word elements of the marks at issue will be perceived overall as invented words, as they do not have an inherent meaning in any of the languages of the European Union, and that, for at least part of the relevant public, in the present case that consisting of consumers who are not able to attribute any meaning at all to the word elements ‘eco’, ‘forte’ or ‘force’ in the marks at issue, the conceptual comparison of the signs remains neutral.
44      So far as concerns, first, the meaning of the words ‘forte’ and ‘force’, it must be pointed out that it is common ground between the parties that the word ‘forte’ evokes the idea of ‘strong point’ whereas the word ‘force’ corresponds to the notion of ‘physical strength’. According to Latin dictionaries, those words are both derived from the Latin word ‘fortis’, which, in addition to its primary meaning of ‘strong, powerful’, has the secondary meaning of ‘brave, courageous’. By means of their word, phonetic and semantic structures, those terms retain a close link, which remains readily perceptible to English- or French-speaking consumers, who will easily recognise them as words which are part of their basic vocabulary. Consequently, although there is an obvious grammatical difference between the word ‘force’, which is a common noun both in French and English, and the word ‘forte’, which may be a noun, an adjective or an adverb in English, French and Italian respectively, it cannot be disputed that the concept they evoke in the minds of consumers is essentially the same, namely that of strength or vigour. Furthermore, it must be pointed out that that link is even closer in French, a language in which the word ‘forte’ may be understood as being the feminine adjective derived directly from the noun ‘force’.
45      It must therefore be held that, as the elements ‘forte’ and ‘force’ in the two signs at issue have similar meanings, the Board of Appeal was right to find that they are conceptually similar for part of the relevant public.
46      So far as concerns, secondly, the alleged meanings of a floral nature of the figurative element of the earlier mark, the conceptual comparison of the two signs at issue scarcely implies that they should be taken into consideration. The applicant does not in any way establish how that figurative element may confer a specific meaning on the earlier mark – of a floral nature or otherwise – in the minds of members of the relevant public. It must be held, as OHIM found and for the reasons set out in paragraphs 34 to 36 above, that the figurative characteristics of the earlier mark are not capable of conferring a different conceptual meaning on that mark and of excluding all conceptual similarity with the mark applied for.
47      Consequently, the Board of Appeal was right to find that there was some conceptual similarity between the signs at issue, as stated in paragraph 20 of the contested decision.
The likelihood of confusion
48      The applicant disputes the assessment of the likelihood of confusion between the signs carried out by the Board of Appeal. It submits, first, that the Board of Appeal erred in law in not properly taking into account the usual method of marketing the goods concerned, which is by visual selection on the shelves of shops and ought to confer a preponderant importance on visual perception in the assessment of the likelihood of confusion. Secondly, it attached insufficient importance to the visual differences between the signs at issue and to the figurative elements of the earlier mark.
49      OHIM disputes the applicant’s arguments.
50      In that regard, the Court points out that the assessment of the likelihood of confusion on the part of the relevant public depends on various factors and must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see OHIM v Shaker, cited in paragraph 24 above, paragraph 34, and Case C‑498/07 P Aceites del Sur-Coosur v Koipe [2009] ECR I‑7371, paragraph 59 and the case-law cited). In addition, it implies some interdependence between the relevant factors, so that 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 (judgment of 17 April 2008 in Case C‑108/07 P Ferrero Deutschland v OHIM, not published in the ECR, paragraphs 44 and 45; see also judgment of 8 March 2013 in Case T‑498/10 Mayer Naman v OHIM – Daniel e Mayer (David Mayer), not published in the ECR, paragraph 48 and the case-law cited).
51      In the present case, the Court considers that it is necessary to uphold the Board of Appeal’s finding, in paragraph 23 of the contested decision, that there is a likelihood of confusion between the marks at issue when the following factors are taken into account: the identity of the goods at issue, the average distinctiveness of the earlier mark, the low degree of visual similarity, the high degree of phonetic similarity and the conceptual similarity in relation to the public in some Member States. As has been stated in paragraph 21 above, the goods covered by the mark applied for and those covered by the earlier mark are, first, intended for the same category of consumers and, secondly, identical. Furthermore, the overall impression created by the signs at issue, taking into account primarily their distinctive and dominant elements, namely the word elements ‘eco forte’ and ‘ecoforce’, and secondarily the averagely distinctive figurative elements of the earlier mark, may – in view of the low degree of visual similarity, the high degree of phonetic similarity and the conceptual similarity for the public in some Member States, in particular French- or English-speaking, between those elements – give rise to a likelihood of confusion on the part of the relevant public between those signs, in respect of identical goods.
52      That finding cannot be invalidated by the applicant’s claim that the Board of Appeal did not examine the usual method of marketing the goods at issue. Although it is true that the departments of OHIM may take into account the objective conditions under which the goods are marketed, in particular in order to determine the respective weight to be given to the visual, phonetic and conceptual aspects of the marks at issue during the global assessment of the likelihood of confusion, it must, in the present case, be pointed out that, as the Board of Appeal rightly found, the visual differences between the two signs are, in any event, insufficient to offset the other criteria which were taken into account in the global assessment of the likelihood of confusion. Consequently, the claim relating to the objective conditions under which the goods are marketed is irrelevant.
53      As none of the arguments put forward by the applicant in support of its single plea is well founded, the action must be dismissed in its entirety.
Costs
54      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 form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Premiere Polish Co. Ltd to pay the costs.
Gratsias
Kancheva
Wetter
Delivered in open court in Luxembourg on 6 December 2013.
[Signatures]
* Language of the case: English.