Judgment of the General Court (Fifth Chamber) of 20 September 2019 –

M. I. Industries v EUIPO — Natural Instinct (NATURE’S VARIETY INSTINCT)

(Case T‑288/18)

(EU trade mark — Opposition proceedings — Application for the EU word mark NATURE’S VARIETY INSTINCT — Earlier national figurative mark Natural Instinct Dog and Cat food as nature intended — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) 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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 20, 21, 38, 82)

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 — Degree of attention of the relevant public (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 23, 32)

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. 34)

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 — Word mark NATURE’S VARIETY INSTINCT and figurative mark Natural Instinct Dog and Cat food as nature intended (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 35, 37, 56, 67, 74, 81, 91)

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 (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 39, 61, 66)

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 — Assessment of the distinctiveness of an element composing a trade mark (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 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 — Coexistence of two marks on a given market — Effect (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 48)

8. EU trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — EUIPO’s previous decision-making practice — Principle of legality (European Parliament and Council Regulation 2017/1001) (see para. 52)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 28 February 2018 (Case R 1658/2017-5), relating to opposition proceedings between Natural Instinct and M.I. Industries.

Operative part

The Court:

1. Dismisses the action;