Judgment of the General Court (Fifth Chamber) of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)

(Case T-295/11)

‛Community trade mark — Opposition proceedings — International registration designating the European Community — Application for the Community figurative mark duschy — Earlier Community figurative mark DUSCHO Harmony — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Duty to state reasons — Articles 75 and 76 of Regulation No 207/2009’

1. Community trade mark — Appeals procedure — Boards of Appeal — Classification as administration of the Office — Right of the parties to a fair ‘process’ — None (Council Regulation No 207/2009, Arts 62 to 64) (see para. 21)

2. Community trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see paras 23-25)

3. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Opposition proceedings — Examination restricted to the submissions of the parties (Council Regulation No 207/2009, Art. 76(1)) (see paras 33-35, 37)

4. Community trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 40-41)

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 — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 49-52, 56, 81)

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 — Likelihood of confusion with the earlier mark — Figurative marks duschy and DUSCHO Harmony (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 53-54, 78-79, 82)

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 — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 57-58, 61)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 21 March 2011 (Case R 662/2010-1), relating to opposition proceedings between Duscholux Ibérica, SA and Duschprodukter i Skandinavien AB.

Operative part

The Court:

1. Dismisses the action;

2. Orders Duscholux Ibérica, SA to pay the costs, including those incurred by Duschprodukter i Skandinavien AB in the course of the proceedings before the Board of Appeal.

Judgment of the General Court (Fifth Chamber) of 12 September 2012 — Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy)

(Case T-295/11)

‛Community trade mark — Opposition proceedings — International registration designating the European Community — Application for the Community figurative mark duschy — Earlier Community figurative mark DUSCHO Harmony — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Duty to state reasons — Articles 75 and 76 of Regulation No 207/2009’

1. Community trade mark — Appeals procedure — Boards of Appeal — Classification as administration of the Office — Right of the parties to a fair ‘process’ — None (Council Regulation No 207/2009, Arts 62 to 64) (see para. 21)

2. Community trade mark — Procedural provisions — Decisions of the Office — Observance of the rights of the defence — Scope of the principle (Council Regulation No 207/2009, Art. 75, second sentence) (see paras 23-25)

3. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Opposition proceedings — Examination restricted to the submissions of the parties (Council Regulation No 207/2009, Art. 76(1)) (see paras 33-35, 37)

4. Community trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 40-41)

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 — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 49-52, 56, 81)

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 — Likelihood of confusion with the earlier mark — Figurative marks duschy and DUSCHO Harmony (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 53-54, 78-79, 82)

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 — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 57-58, 61)

Re:

ACTION brought against the decision of the First Board of Appeal of OHIM of 21 March 2011 (Case R 662/2010-1), relating to opposition proceedings between Duscholux Ibérica, SA and Duschprodukter i Skandinavien AB.

Operative part

The Court:

1. Dismisses the action;