Judgment of the General Court (Second Chamber) of 21 January 2015 — Schwerdt v OHIM — Iberamigo (cat & clean)

(Case T‑587/13)

‛Community trade mark — Opposition proceedings — Application for figurative Community mark cat & clean — Prior Spanish word mark CLEAN CAT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Obstacles to the free movement of goods — Article 34 TFEU — Article 16 of the Charter of Fundamental Rights’

1. 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 15-18, 33)

2. 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 — Assessment of the likelihood of confusion — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 19)

3. 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 — Figurative mark cat & clean and word mark CLEAN CAT (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 21, 22, 32, 35)

4. 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 — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23, 24)

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 — Weak distinctive character of the earlier mark — Relevance (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 36, 37)

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 — Earlier mark constituted by a descriptive sign in a language other than that of the Member State of registration — No infringement of the principle of the free movement of goods (Arts 34 TFEU and 36 TFEU; Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 40)

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 — Likelihood of confusion with the earlier mark — Coexistence of earlier marks — Recognition of a certain degree of distinctiveness of a national mark (Council Regulation No 40/94, Art. 8(1)(b)) (see paras 43, 44)

8. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Scope — Absolute grounds for refusal invoked by the trade mark applicant — Not included — Possibility of recourse to community or national annulment actions (Council Regulation No 207/2009, Arts 7 and 8(1)(b)) (see para. 46)

9. Fundamental rights — Freedom of occupation — Freedom to run a business — Limits — Enforcement of intellectual property rights (Art. 6(1), third para., TEU; Charter of Fundamental Rights of the European Union, Arts 16, 17 and 52(7); Council Regulation No 207/2009) (see paras 52-58)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 September 2013 (Case R 1799/2012-4) concerning opposition proceedings between Iberamigo, SA and Ms Miriam Schwerdt.

Operative part

The Court:

1. Dismisses the action;