Judgment of the General Court (Ninth Chamber) of 12 December 2014 —

Ludwig Schokolade v OHIM — Immergut (TrinkFix)

(Case T‑105/13)

‛Community trade mark — Opposition proceedings — Application for the Community word mark TrinkFix — Earlier national and Community word marks Drinkfit — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 207/2009 — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation No 207/2009’

1. Community 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 22, 23, 27, 29, 30)

2. Community trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal adjudicating in opposition proceedings — Legality of the decision of a Board of Appeal adjudicating in opposition proceedings — Inadmissibility (Council Regulation No 207/2009, Arts 65 and 76(1)) (see para. 35)

3. Community trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal adjudicating in opposition proceedings — Challenged by the adducing of new facts — Not permissible — Account taken, for the purposes of interpreting EU law, of EU national or international case-law not cited before the OHIM bodies — Lawfulness (Council Regulation No 207/2009, Arts 65 and 76(1)) (see para. 36)

4. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Use of the mark in a form differing by elements not altering the distinctive character of the mark (Council Regulation No 207/2009, Arts 15(1), second para., (a), and 42(2) and (3)) (see para. 42)

5. Community trade mark — Definition and acquisition of the Community 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 58, 59, 136)

6. Community trade mark — Definition and acquisition of the Community 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 — Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 65, 66)

7. Community trade mark — Definition and acquisition of the Community 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 para. 104)

8. Community trade mark — Definition and acquisition of the Community 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 mark TrinkFix and word marks Drinkfit (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 109, 114, 122, 132, 145)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 13 December 2012 (Case R 34/2012‑1), concerning opposition proceedings between Immergut GmbH & Co. KG and Ludwig Schokolade GmbH & Co. KG.

Operative part

The Court:

1. Dismisses the action;