Order of the General Court (Seventh Chamber) of 3 May 2018 –

Siberian Vodka v EUIPO — Schwarze und Schlichte (DIAMOND ICE)

(Case T‑234/17)

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark DIAMOND ICE — Earlier EU word mark DIAMOND CUT — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) — Action manifestly lacking any foundation in law)

1. 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 19-21)

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—Assessment of the likelihood of confusion—Determination of the relevant public—Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 25)

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—Similarity of the marks concerned—Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 29, 37)

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—Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 38)

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—Word marks DIAMOND ICE and DIAMOND CUT (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39-43, 49-57, 61-67, 72-77)

6. 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. 44)

7. EU trade mark—Decisions of the Office—Legality—Examination by the EU judicature—Criteria (Council Regulation No 207/2009) (see para. 48)

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—Weak distinctive character of the earlier mark—Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 71)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 8 February 2017 (Case R 1171/2016-4), relating to opposition proceedings between Schwarze und Schlichte Markenvertrieb and Siberian Vodka.

Operative part

1. The action is dismissed.