Judgment of the General Court (Fifth Chamber) of 20 June 2019 — Nonnemacher v EUIPO — Ingram (WKU)

(Case T‑389/18)

(EU trade mark — Invalidity proceedings — EU word mark WKU — Earlier EU word marks WKA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001 — No limitation in consequence of acquiescence — Article 61(1) of Regulation 2017/1001)

1. EU trade mark — Surrender, revocation and invalidity — Limitation through acquiescence (European Parliament and Council Regulation 2017/1001, Art. 61(1)) (see para. 17)

2. EU law — Principles — Prohibition of abuse of right (see para. 20)

3. EU trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Existence of an identical or similar earlier 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, Arts 8(1)(b) and 60(1)(a)) (see paras 28, 29, 71, 85, 89)

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 between the goods or services in question — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 30)

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 — 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 34, 39)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 47, 48, 61)

7. EU trade mark — Surrender, revocation and invalidity — Examination of the application — 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 — Precluded (European Parliament and Council Regulation 2017/1001, Art. 64(2)) (see para. 78)

8. EU trade mark — Surrender, revocation and invalidity — Relative grounds for invalidity — Existence of an identical or similar earlier mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks WKU and WKA (European Parliament and Council Regulation 2017/1001, Arts 8(1)(b) and 60(1)(a)) (see paras 90-94)

Re

Action brought against the decision of the First Board of Appeal of EUIPO of 17 April 2018 (Case R 399/2017-1), relating to invalidity proceedings between Mr Ingram and Mr Nonnemacher.

Operative part

The Court:

1. Dismisses the action;