WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 935JUDGMENT OF THE GENERAL COURT (fifth chamber)  
4 March 2010  *
In Case T-24/08,
Weldebräu GmbH & Co. KG, established in Plankstadt (Germany), represented by 
W. Göpfert, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and  Designs) (OHIM), represented by P . Bullock, acting as Agent,
defendant,
* Language of the case: English.
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 936the other party to the proceedings before the Board of Appeal of OHIM, intervener 
before the Court, being
Kofola Holding a.s.,  established in Ostrava (Czech Republic), represented by S.  
Hejdová and R. Charvát, lawyers,
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 
15  November 2007 (Case R 1096/2006-4), relating to opposition proceedings be -
tween Weldebräu GmbH & Co. KG and Kofola Holding a.s.,
THE GENERAL COURT (Fifth Chamber),
composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucă, Judges,  
 Registrar: N. Rosner, Administrator,
having regard to the application lodged at the Registry of the Court on 16 January 
2008,
WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 937having regard to the response of OHIM lodged at the Registry of the Court on 13 May 
2008,
having regard to the response of the intervener lodged at the Registry of the Court on 
14 May 2008,
further to the hearing on 29 October 2009,
gives the following
Judgment
Background to the dispute
1On 23 
September 2003, the intervener, Kofola Holding a.s., filed an application for 
registration of a Community trade mark at the Office for Harmonisation in the In-
ternal Market (Trade Marks and Designs) (OHIM), under 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)).
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 9382The mark in respect of which registration was sought is the three-dimensional sign 
corresponding to the following description: ‘a bottle of cylindrical form has a nar -
rowed, helically formed neck and its cylindrical part is labelled “snipp”’ , and repro -
duced below:
3The goods in respect of which registration was sought are in Classes 30, 32 and 33 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised 
and amended, and correspond, in respect of each of those classes, to the following 
description:
— Class 30: ‘Coffee, tea, cocoa, artificial coffee, sauces, vegetable sauces, confection -
ery, chocolate based beverages, cocoa based beverages, coffee based beverages, tea based beverages, flavourings for beverages other than essential oils, golden 
syrup’;
— Class 32: ‘Non alcoholic beverages, non alcoholic fruit beverages, fruit extracts 
(non alcoholic), fruit nectars, fruit juice, mineral water, effervescing beverages, 
e
ssences for making beverages, syrups, beers’;
— Class 33: ‘ Alcoholic beverages’ .
WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 9394The Community trade mark application was published in Community Trade Marks 
Bulletin No 2004/033 of 16 August 2004.
5On 16 
November 2004, the applicant, Weldebräu GmbH & Co. KG, filed a notice of 
opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation 
No 207/2009) to registration of that trade mark for the goods referred to in para -
graph 3 above.
6The opp
osition was based on the earlier three-dimensional Community trade mark 
consisting in the shape of a bottle, registered under Number 690 016 on 16 November 
2000, and reproduced below.
7The goods covered by the earlier mark fall within Classes 21, 32 and  33 and cor -
respond, in respect of each of those classes, to the following description:
— Class 21: ‘Boxes of glass, bottles, jugs (not of precious metal)’;
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 940— Class 32: ‘Beers, mineral and aerated waters, fruit drinks and fruit juices, syrups 
and other preparations for making beverages, ale, porter’;
— Class 33: ‘ Alcoholic beverages (except beer), liqueurs, spirits, wine’ .
8The 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).
9On 26 June 2006, the Opposition Division rejected the opposition.
10On 14 
August 2006, the applicant filed an appeal with OHIM, pursuant to Articles 57 
to  62 of Regulation No  40/94 (now Articles  58 to  64 of Regulation No  207/2009), 
against the decision of the Opposition Division.
11By de
cision of 15 November 2007 (‘the contested decision’), the Fourth Board of Ap -
peal of OHIM dismissed the appeal, in essence holding that, having regard to the average degree of distinctiveness of the earlier mark and the significant differences between the signs at issue, there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94, read in conjunction with Article 8(2)(a)(i) 
of Regulation No 40/94 (now Article 8(2)(a)(i) of Regulation No 207/2009), between 
the marks at issue on the part of the average consumer within the European Union.
WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 941Forms of order sought
12The a
pplicant claims that the Court should:
— annul the contested decision;
— order OHIM to pay the costs.
13OHIM contends that the Court should:
— dismiss the action;
— order the applicant to pay the costs.
14The intervener contends that the Court should:
— dismiss the action;
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 942— order the applicant to pay the costs.
Law
15In support of its action, the applicant relies on a single plea, alleging breach of Art -
icle 8(1)(b) of Regulation No 40/94. It submits that the Board of Appeal was wrong to 
reject the existence of a likelihood of confusion, within the meaning of that provision, between the marks at issue. OHIM and the intervener contend that the Board of Ap
-
p
eal correctly concluded that there was no such likelihood.
16U
nder Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of 
an earlier trade mark, the trade mark applied for is not to be registered where, be -
cause 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 likeli -
hood 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.
17A
ccording to established case-law, the risk that the public might believe that the 
goods or services in question come from the same undertaking or from economical -
ly-linked undertakings constitutes a likelihood of confusion. According to that 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 in question, 
taking into account all factors relevant to the circumstances of the case, in particu -
lar the interdependence between the similarity of the signs and that of the goods or services designated (see Case T-162/01 Laboratorios RTB v OHIM - Giorgio Beverley Hills (GIORGIO BEVERLEY HILLS)  [2003] ECR II-2821, paragraphs 30 to 33 and the 
case-law cited).
WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 94318The question whether the Board of Appeal was correct to hold that there was no like -
lihood of confusion between the earlier mark and the trade mark applied for must be 
examined in the light of those considerations.
19In t
he present case, it is common ground that the relevant public is composed of aver -
age consumers in the European Union who are reasonably well informed and reason -
ably observant and circumspect.
20I
t is also common ground, as the Board of Appeal correctly observed in paragraph 26 
of the contested decision, that the goods designated by the trade mark applied for in Classes 32 and 33 are identical to those of the earlier trade mark in the same classes, 
and that the goods in Class 30 covered by the trade mark applied for are very similar 
to the goods in Classes 32 and 33 covered by the earlier mark.
The comparison of the signs at issue
21I
t is settled case-law that the global assessment of the likelihood of confusion must, 
as regards the visual, phonetic or conceptual similarity of the marks in question, be 
based on the overall impression which they create, bearing in mind, in particular, their distinctive and dominant components. The perception of marks by the aver -
age consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood. In that respect, the average consumer normally per -
ceives 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; 
judgment of 20 September 2007 in Case C-193/06 P Nestlé v OHIM, not published 
in the ECR, paragraph 34; Case T-186/02 BMI Bertollo v OHIM - Diesel (DIESELIT) 
[2004] ECR II-1887, paragraph 38).
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 94422In the present case, two three-dimensional signs are at issue, consisting of a body of a 
bottle of cylindrical form and a helically formed neck. In addition, the sign applied for includes the word element ‘snipp’ engraved on the lower part of the body of the bottle 
in small-sized letters of the same colour as the bottle.
23A
s is apparent from the findings made in paragraph  28 of the contested decision, 
which are not disputed by the parties, no phonetic comparison can be made since the 
earlier mark does not contain any word element and the word element ‘snipp’ , minor in size and engraved on the bottom part of the sign applied for, is not liable to affect the overall impression produced by the mark. A conceptual comparison is also im -
possible since the marks at issue do not convey any meaning. Accordingly, the marks 
at issue may only be compared visually.
24The B
oard of Appeal held, in paragraph 31 of the contested decision, that the overall 
visual comparison of the two signs shows several significant differences, taking into 
account, inter alia, the fact that the proportions between the length and width of the bottles are different, that the sign applied for has a word element which is not contained in the earlier sign and that the shapes of the necks of the bottles are very 
different.
25In t
his connection, although it is true that the word element, ‘snipp’ , of the trade mark 
applied for, engraved in the same colour as the glass, is difficult to see and, conse -
quently, is not likely to have an effect on the overall impression produced by the trade 
mark, and although it is evident that the necks of the bottles of the signs at issue are both helically formed and, consequently, can be distinguished from traditional necks, the fact remains that the overall visual impression is of various significant differences 
between the signs at issue, as the Board of Appeal rightly concluded.
WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 94526First, the earlier sign appears, from the perspective of average consumers who are 
reasonably well informed and reasonably observant and circumspect, to be longer, slimmer and therefore more delicate than the sign applied for, which has a smaller, 
thicker and more corpulent silhouette which gives a more bulky impression. In add
-
ition, in the case of the sign applied for the shape of the body of the bottle is irregular 
because of its curvy form, whereas that of the earlier sign is straight. Secondly, the necks, although both helical, have different spirals. Whereas the neck of the earlier 
sign is thinner and consists of only two helical turns, that of the sign applied for is 
wider and consists of at least four helical turns.
27Cons
equently, the Board of Appeal did not err when it found, in paragraph 31 of the 
contested decision, that the fact that the neck of both bottles can be described as ‘helical-shaped’ is of very little relevance, as the shape of each neck is very different.
28Tha
t assessment is not affected by the applicant’s arguments derived from the case-
law of certain national courts and the practice of OHIM. First, the case-law of the courts of the Member States is a factor which may merely be taken into consideration, 
without being given decisive weight, for the purposes of registering a Community 
trade mark (Case T-194/01 Unilever v OHIM (Ovoid tablet) [2003] ECR II-383, para-graph 68). Secondly, concerning the practice of OHIM, decisions concerning registra -
tion 
of a sign as a Community trade mark which the Boards of Appeal are called on to 
take under Regulation No 40/94 are adopted in the exercise of circumscribed powers 
and are not a matter of discretion. Accordingly, the legality of those decisions must 
be assessed solely on the basis of that regulation, and not on the basis of a previous practice (Case C-412/05
 P Alcon v OHIM [2007] ECR I-3569, paragraph 65, and Case 
T
-346/04 Sadas v OHIM - LTJ Diffusion (ARTHUR ET FELICIE)  [2005] ECR II-4891, 
paragraph 71).
29H
aving regard to the foregoing considerations, the Board of Appeal was fully entitled 
to observe that there were significant differences between the signs. Consequently, it must be concluded that there is only a low degree of visual similarity between the signs at issue.
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 946The likelihood of confusion
30A g
lobal 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 the similarity of the goods or services concerned. Accordingly, a low 
degree of similarity between these goods or services may be offset by a high degree of similarity between the marks, and vice versa (Case C-39/97 Canon [1998] ECR 
I-5507, paragraph 17, and Joined Cases T-81/03, T-82/03 and T-103/03 Mast-Jäger -
meister v OHIM - Licorera Zacapaneca (VENADO with frame and Others)  [2006] 
ECR II-5409, paragraph 74).
31In t
he present case, the Board of Appeal found, in paragraph 24 of the contested de -
cision, that the earlier mark had an average degree of distinctiveness. The applicant does not dispute that finding, although it submits that that mark has at least that 
average degree of distinctiveness because of its unique and unusual appearance, con -
firmed by the various prizes received for the special design of the bottle. In any event, 
as the Board of Appeal noted, the applicant has not submitted any argument proving that its mark has acquired distinctiveness by virtue of intensive use or its reputation.
32Sinc
e the signs at issue have significant differences and the applicant has not demon -
strated in what way the earlier mark is highly distinctive, the mere fact that the two 
bottles have a helically formed neck does not lead to the conclusion that there is a 
likelihood of confusion between the marks at issue, despite the fact that the goods at issue are identical.
33Tha
t conclusion is not affected by the applicant’s argument that the tactile impres -
sion of the marks at issue plays an important role in the present case. As OHIM cor -
rectly points out, the selling arrangements for the bottles – namely their display as 
WELDEBRÄU v OHIM — KOFOLA HOLDING (SHAPE OF A BOTTLE WITH A HELICALLY FORMED NECK)
II - 947labelled goods in the food aisles of supermarkets or their being ordered in a bar or 
restaurant – mean that prior to purchase the consumer will concentrate mainly on the word and figurative elements on their labels, such as the trade mark’s name, logo 
and/or other figurative elements indicating the product’s origin.
34In t
he light of those considerations, the single plea must be rejected and, consequent -
ly, the appeal must be dismissed in its entirety.
Costs
35U
nder Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is 
to be ordered to pay the costs if they have been applied for in the successful party’s 
pleadings.
36A
s the applicant has been unsuccessful, it must be ordered to pay the costs in accord -
ance with the form of order sought by OHIM and the intervener.
JUDGMENT OF 4. 3. 2010 — CASE T-24/08
II - 948On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Weldebräu GmbH & Co. KG to pay the costs.
Vilaras  Prek  Ciucă
Delivered in open court in Luxembourg on 4 March 2010.
[Signatures]