Judgment of the General Court (Ninth Chamber) of 14 November 2019 –

Société des produits Nestlé v EUIPO — Jumbo Africa (Representation of a human figure on an escutcheon)

(Case T‑149/19)

(EU trade mark — Opposition proceedings — Application for an EU figurative mark representing the shape of a human figure on an escutcheon — EU figurative mark representing the shape of a human figure — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001 — Power to alter decisions)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 20, 42, 47)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 21)

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 between the goods or services in question — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 23)

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 — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 24, 31, 40)

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 — Figurative mark representing the shape of a human figure on an escutcheon — Figurative mark representing the shape of a human figure (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 29-33, 35, 41, 47)

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 — Degree of distinctiveness of the earlier trade mark (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 36)

7. EU trade mark — Appeals procedure — Action before the EU judicature — Power of the General Court to alter the contested decision — Limits (European Parliament and Council Regulation 2017/1001, Art. 72(3)) (see para. 49)

Re:

Action brought against the decision of the Second Board of Appeal of EUIPO of 30 November 2018 (Case R 876/2018-2) relating to opposition proceedings between Jumbo Africa and Société des produits Nestlé.

Operative part

The Court:

1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 November 2018 (Case R 876/2018-2);

2. Dismisses the appeal brought before EUIPO by Jumbo Africa, SL;

3. Orders EUIPO to bear its own costs and to pay those incurred by Société des produits Nestlé SA for the purposes of the proceedings before the General Court;

4. Orders Jumbo Africa to pay the costs necessarily incurred by Société des produits Nestlé for the purposes of the proceedings before the Board of Appeal of EUIPO;