Judgment of the General Court (Single Judge) of 26 June 2018 — Akant Monika i Zbigniew Harasym v EUIPO — Hunter Douglas Holding (COSIMO)

(Case T‑739/16)

(EU trade mark — Opposition proceedings — Application for EU word mark COSIMO — Earlier EU word mark COSIFLOR — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Proof of genuine use of the earlier mark — Article 42(2) of Regulation No 207/2009 (now Article 47(2) of Regulation 2017/1001))

1. EU trade mark—Observations of third parties and opposition—Examination of the opposition—Proof of use of the earlier mark—Request presented expressly and on time by the applicant—Possibility of submitting the application for the first time before the Board of Appeal—Not included (Council Regulation No 207/2009, Art. 42(2)) (see paras 18, 19)

2. 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 32, 33, 67)

3. 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—Assessment of the likelihood of confusion—Determination of the relevant public—Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 35)

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—Word marks COSIMO and COSIFLOR (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 49, 69, 70)

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 paras 40, 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—Similarity of the marks concerned—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 50-52, 54)

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—Similarity of the marks concerned—Whether conceptual differences may neutralise visual or aural similarities—Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 62)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 22 August 2016 (Case R 2364/2015-2), relating to opposition proceedings between Hunter Douglas Holding and Akant Monika i Zbigniew Harasym.

Operative part

The Court:

1. Dismisses the action;