Judgment of the General Court (Fifth Chamber) of 2 December 2020 –

Sánchez Romero Carvajal Jabugo v EUIPO – Embutidos Monells (5MS MMMMM)

(Case T‑639/19)

(EU trade mark – Opposition proceedings – Application for the EU figurative mark 5MS MMMMM – Earlier EU figurative mark 5J – Relative grounds for refusal – No likelihood of confusion – No similarity between the signs – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – No damage to reputation – Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001))

1. 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 – Precluded (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 20)

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 – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 26, 30, 56)

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 – Likelihood of confusion with the earlier mark – Figurative marks 5MS MMMMM and 5J (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 27, 32, 44, 48-51, 54, 55, 62, 66)

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 between the goods or services in question – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28, 31)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 33)

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 – Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 34, 47)

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 registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Enhanced distinctiveness of the earlier mark – Effect (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 57)

Re:

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 24 July 2019 (Case R 1728/2018-4), relating to opposition proceedings between Sánchez Romero Carvajal Jabugo and Embutidos Monells.

Operative part

The Court:

1. Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 July 2019 (Case R 1728/2018-4);

2. Dismisses the action as to the remainder;