Judgment of the General Court (Third Chamber) of 13 September 2016 — Perfetti Van Melle Benelux v EUIPO — PepsiCo (3D)

(Case T‑390/15)

‛EU trade mark — Opposition proceedings — Application for EU figurative mark 3D — Earlier EU word and figurative marks 3D’S and 3D’s — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No (EC) No 207/2009’

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application based (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 177(1)(d)) (see para. 16)

2. 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 — Re-examination of the facts in the light of evidence not previously submitted before EUIPO bodies — Exclusion (Council Regulation No 207/2009, Art. 65) (see para. 21)

3. EU trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal adjudicating in opposition proceedings — Challenge in reliance on new elements of law or fact — Not permissible (Council Regulation No 207/2009, Arts 65 and 76(1)) (see paras 31, 32)

4. 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 34-36, 71)

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 — Similarity between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 41)

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 — Figurative mark 3D — Word and figurative marks 3D’S and 3D’s (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 56, 65-69, 77)

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 — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 58, 59)

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 — Likelihood of confusion with the earlier mark — Weak distinctive character of the earlier mark — Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 76)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 8 May 2015 (Case R 465/2014-5), relating to opposition proceedings between PepsiCo and Perfetti Van Melle Benelux.

Operative part

The Court:

1. Dismisses the action;