Judgment of the General Court (Sixth Chamber) of 16 May 2019 — KID-Systeme v EUIPO — Sky (SKYFi)

(Case T‑354/18)

(EU trade mark — Opposition proceedings — Application for EU word mark SKYFi — Earlier national and EU word marks SKY — Relative ground for refusal — Likelihood of confusion — Similarity of signs —Identity of goods and services — Article 8(1)(b) of Regulation (EU) 2017/1001 — Obligation to state reasons — Article 94 of Regulation 2017/1001 — Genuine use of the earlier mark — Article 47(2) and (3) of Regulation 2017/1001 — Suspension of the administrative procedure — Rule 20(7)(c) of Regulation (EC) No 2868/95 (now Article 71(1) of Delegated Regulation (EU) 2018/625) — Misuse of powers — Right to a fair trial — Article 47 of the Charter of Fundamental Rights — Oral proceedings before the Board of Appeal — Article 96 of Regulation 2017/1001)

1. EU trade mark — Appeals procedure — Persons entitled to appeal and to be parties to the proceedings — Persons whose claims are not upheld by a decision — Opposition proceedings based on an earlier national trade mark and an earlier EU trade mark — Decision upholding the opposition without taking account of all the earlier trade marks — Decision upholding the opponent’s claims (European Parliament and Council Regulation 2017/1001, Arts 67, 71(1) and 95) (see para. 33)

2. EU trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept/Meaning/Definition — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 47(2)) (see para. 40)

3. EU trade mark — Appeals procedure — Decision on the appeal — Observance of the rights of the defence — Scope of the principle (European Parliament and Council Regulation 2017/1001, Arts 70(2) and 94) (see para. 53)

4. EU trade mark — Appeals procedure — Appeal to a Board of Appeal — Stay of proceedings — Conditions (Commission Regulation No 2868/95, Art. 1, Rules 20(7)(c) and 50(1)) (see paras 58-61)

5. Action for annulment — Pleas in law — Misuse of powers — Concept/Meaning/Definition (Art. 263 TFEU) (see para. 68)

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 — Criteria for assessment (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see paras 76, 77, 86)

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 — Similarity of the marks concerned — Criteria for assessment — Composite mark (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 81)

8. 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 SKYFi and word marks SKY (European Parliament and Council Regulation 2017/1001, Art. 8(1)(b)) (see para. 87)

9. EU trade mark — Appeals procedure — Action before the EU judicature — Condition of admissibility — Pleas in law directed only against decisions of the Boards of Appeal (European Parliament and Council Regulation 2017/1001, Art. 72(1)) (see para. 99)

10. EU trade mark — Appeals procedure — Boards of Appeal — Classification as administration of the Office — Right of the parties to a fair ‘trial’ — None (European Parliament and Council Regulation 2017/1001, Arts 69 to 71) (see para. 102)

Re

Action brought against the decision of the Fourth Board of Appeal of EUIPO of 15 March 2018 (Case R 106/2017-4) relating to opposition proceedings between Sky and KID-Systeme.

Operative part

The Court:

1. Dismisses the action;