Judgment of the General Court (Second Chamber) of 26 September 2017 — Banca Monte dei Paschi di Siena and Banca Widiba v EUIPO — ING-DIBa (WIDIBA)

(Case T‑83/16)

(EU trade mark — Opposition proceedings — Application for EU word mark WIDIBA — Earlier national word mark DiBa — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Inadmissibility of the appeal before the Board of Appeal — Request for restitutio in integrum — Duty of care)

1. EU trade mark—Procedural provisions—Restitutio in integrum—Conditions—Due care required by the circumstances—Delegation of tasks concerning the renewal of a trade mark (Council Regulation No 207/2009, Art. 81(1)) (see paras 27, 28, 39)

2. EU trade mark—Procedural provisions—Restitutio in integrum—Conditions—Due care required by the circumstances—Exceptional events, which cannot therefore be predicted (Council Regulation No 207/2009, Art. 81(1)) (see para. 29)

3. EU trade mark—Appeals procedure—Form of appeal and period within which it must be brought—Pleading setting out the grounds lodged within the period prescribed—Condition of admissibility (Council Regulation No 207/2009, Art. 60; Commission Regulation No 2868/95, Art. 1, Rule 49(1)) (see paras 33, 35, 36)

4. EU trade mark—Appeals procedure—Action before the EU judicature—Jurisdiction of the General Court—Review of the lawfulness of decisions of the Boards of Appeal—Annulment or variation for reasons appearing after judgment was delivered—Exclusion (Council Regulation No 207/2009, Art. 65) (see paras 49, 52)

5. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 55, 56, 76)

6. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Degree of attention of the relevant public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 57)

7. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Likelihood of confusion with the earlier mark—Word mark WIDIBA and word mark DiBa (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 58, 69, 74, 75, 78-82)

8. EU trade mark—Definition and acquisition of the EU trade mark—Relative grounds for refusal—Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services—Similarity between the goods or services in question—Criteria for assessment—Complementary nature of the goods (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 59, 60)

9. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 68)

Re:

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 26 November 2015 (Joined Cases R 112/2015-2 and R 190/2015-2), relating to opposition proceedings between ING-DIBa and Banca Monte dei Paschi di Siena.

Operative part

The Court:

1. Dismisses the action;