15

The General Court found, at paragraphs 50 to 54 of the judgment under appeal: ‘50 [The] ground for refusal based on the risk of dilution, as provided for in Article 8(5) of Regulation No 207/2009, contributes, along with the other grounds for refusal set out in that article, to protect the primary function of the mark, that is to say as an indication of origin. So far as concerns the risk of dilution, that function is compromised where the earlier mark’s ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened, since use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark. That is notably the case where the earlier mark, which used to arouse immediate association with the goods or services for which it is registered, is no longer capable of doing so ([Case C-252/07] Intel Corporation [[2008] ECR I-8823], paragraph 29). 51 It is clear from Intel Corporation … that the proprietor of the earlier mark who invokes the protection granted by Article 8(5) of Regulation No 207/2009 is required to adduce evidence that use of the later mark would be detrimental to the distinctive character of the earlier mark. To that end, the proprietor of the earlier mark is not required to demonstrate actual and present harm to his mark. When it is foreseeable that such injury will ensue from the use which the proprietor of the later mark may be led to make of its mark, the proprietor of the earlier mark cannot be required to wait for this actually to occur in order to be able to prohibit that use. The proprietor of the earlier mark must, however, prove that there is a serious risk that such an injury will occur in the future (Intel Corporation, … paragraphs 37, 38 and 71). 52 Accordingly, the proprietor of the earlier mark must adduce prima facie evidence of a future risk, which is not hypothetical, of detriment …. Such a conclusion may be established, in particular, on the basis of logical deductions made from an analysis of the probabilities and by taking account of the normal practice in the relevant commercial sector as well as all the other circumstances of the case … 53 It cannot, however, be required that, in addition to those elements, the proprietor of the earlier mark must show an additional effect, caused by the introduction of the later mark, on the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered. Such a condition is not set out in Article 8(5) of Regulation No 207/2009 or in Intel Corporation … 54 So far as concerns paragraph 77 of Intel Corporation …, it is apparent from the choice of words ‘it follows’ and from the structure of paragraph 81 of that judgment that the change in the economic behaviour of the consumer, to which [Environmental Manufacturing] refers in support of its claim, is established if the proprietor of the earlier mark has shown, in accordance with paragraph 76 of Intel Corporation, that the mark’s ability to identify the goods or services for which it is registered and used as coming from the proprietor of that mark is weakened, since use of the later mark leads to dispersion of the identity and hold upon the public mind of the earlier mark.’