Judgment of the General Court (Seventh Chamber) of 24 October 2018 –

Bayer v EUIPO — Uni-Pharma (SALOSPIR)

(Case T‑261/17)

(EU trade mark — Opposition proceedings — Application for EU figurative mark SALOSPIR — Earlier EU figurative marks representing coloured stripes and earlier national marks Aspirin — Relative grounds for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Reputation — Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001) — Use of a sign of more than mere local significance in the course of trade — Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001))

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 (Council Regulation No 207/2009, Art. 65) (see para. 18)

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 30, 31)

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 — Medicinal products (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 33)

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 — Similarity of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 37, 73)

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 of the marks concerned — Assessment only on the basis of the dominant element of a complex mark — Conditions (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 40)

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 SALOSPIR — Figurative marks representing coloured stripes and word marks Aspirin (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41-43, 70, 71, 74, 81, 95, 98)

7. Judicial proceedings — Burden of proof, etc. — Probative value — Criteria for assessment — Principles of the unfettered adduction of evidence and the unfettered evaluation of evidence (see paras 60, 61)

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 enjoying a reputation — Protection of well-known earlier mark extended to dissimilar goods or services — Conditions (Council Regulation No 207/2009, Art. 8(1)(b) and (5)) (see para. 105)

9. EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an unregistered trade mark or other sign used in the course of trade — Conditions — Interpretation in the light of EU law — Assessment by reference to the criteria determined by the national law governing the sign relied on (Council Regulation No 207/2009, Art. 8(4); Commission Regulation No 2868/95, Art. 1, Rule 19(2)(d)) (see paras 113, 114, 116, 117)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 17 February 2017 (Case R 2444/2017-4), relating to opposition proceedings between Bayer and Uni-Pharma Kleon Tsetis, Farmakeutika Ergastiria.

Operative part

The Court:

1. Dismisses the action;