Judgment of the General Court (Second Chamber) of 8 December 2021 –

Cyprus v EUIPO – Fontana Food (GRILLOUMI BURGER)

(Case T‑593/19)

(EU trade mark – Opposition proceedings – Application for the EU word mark GRILLOUMI BURGER – Earlier national certification word marks ΧΑΛΛΟΥΜΙ HALLOUMI – Relative grounds for refusal – No likelihood of confusion – No detriment to repute – Article 8(1)(b) and Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 8(5) of Regulation (EU) 2017/1001))

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 29-31, 98, 104)

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 paras 33, 34, 36)

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 – Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 43, 44, 54, 55)

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 – 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 207/2009, Art. 8(1)(b)) (see paras 62, 63, 68)

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 – Similarity of the marks concerned – Criteria for assessment – Composite mark – Assessment of the distinctive character of an element of which a trade mark is composed (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 84, 87, 89)

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 – Likelihood of confusion with the earlier mark – Word mark GRILLOUMI BURGER – Word marks ΧΑΛΛΟΥΜΙ HALLOUMI (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 105-113)

7. 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 enjoying a reputation – Protection of well-known earlier mark extended to dissimilar goods or services – Conditions – Taking unfair advantage of the distinctive character or repute of the earlier mark – Detriment to the distinctive character or repute of the earlier mark – Criteria for assessment (Council Regulation No 207/2009, Art. 8(5)) (see para. 120)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 19 June 2019 (Case R 1297/2018‑4)) relating to opposition proceedings between the Republic of Cyprus and Fontana Food.

Operative part

The Court:

1. Dismisses the action;