Judgment of the General Court (Fifth Chamber) of 14 July 2016 — Modas Cristal v EUIPO — Zorlu Tekstil Ürünleri Pazarlama (KRISTAL)

(Case T‑345/15)

‛EU trade mark — Opposition proceedings — Application for EU figurative mark KRISTAL — Earlier national word and figurative marks MODAS CRISTAL and home CRISTAL — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

1. EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Not included (Rules of Procedure of the General Court (1991), Art. 135(4); Council Regulation No 207/2009, Art. 65) (see para. 15)

2. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Interpretation having regard to the ratio legis of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3); Commission Regulation No 2868/95, Art. 1, Rule 22(3)) (see para. 19)

3. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 20-22, 32)

4. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Application of the criteria to the case in question (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 23)

5. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Need to determine that question, once raised by the applicant before the decision on the opposition — Consequence (Council Regulation No 207/2009, Art. 43(2)) (see para. 44)

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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 49, 69, 89)

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 — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 50, 61-63)

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 — Figurative mark KRISTAL — Word mark MODAS CRISTAL and figurative mark home CRISTAL (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 52, 68, 91, 92, 97, 100, 101)

Re:

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 24 April 2015 (Case R 341/2014-5), relating to opposition proceedings between Modas Cristal and Zorlu Tekstil Ürünleri Pazarlama.

Operative part

The Court:

1. Dismisses the action;