Judgment of the General Court (Sixth Chamber) of 6 March 2019 –

Serenity Pharmaceuticals v EUIPO — Gebro Holding (NOCUVANT)

(Case T‑321/18)

(EU trade mark — Opposition proceedings — Application for EU word mark NOCUVANT — Earlier word marks NOCUTIL — Proof of genuine use — Article 47(2) of Regulation (EU) 2017/1001 — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation 2017/1001)

1. EU trade mark — Appeals procedure — Actions 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 — Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 21)

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 taking account of the rationale of Article 47(2) and (3) of Regulation 2017/1001 (European Parliament and Council Regulation 2017/1001, Art. 47(2) and (3)) (see paras 28, 49)

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 — Requirement of solid and objective evidence (European Parliament and Council Regulation 2017/1001, Art. 47(2)) (see paras 29-32, 45, 50)

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 — Determination of a minimal quantitative use threshold — Precluded (European Parliament and Council Regulation 2017/1001, Art. 47(2)) (see paras 33, 50)

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 — Likelihood of confusion with the earlier mark — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 58, 59, 78-80)

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 — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 60, 63)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 65, 70)

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 — Word marks NOCUVANT and NOCUTIL (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 69, 71-75, 77, 81-83)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 8 March 2018 (Case R 584/2017-2), relating to opposition proceedings between Gebro Holding and Allergan, Inc.

Operative part

The Court:

1. Dismisses the action;