Judgment of the General Court (Second Chamber) of 21 December 2021 –

Dr. Spiller v EUIPO – Rausch (Alpenrausch Dr. Spiller)

(Case T‑6/20)

(EU trade mark – Opposition proceedings – Application for EU word mark Alpenrausch Dr. Spiller – Earlier EU word mark RAUSCH – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

1. EU trade mark – Appeals procedure – Action before the EU judicature – Jurisdiction of the General Court – Review of the lawfulness of decisions of the Boards of Appeal – Review of the legal classification given to the facts of the dispute – Review of the assessment by the Board of Appeal of the likelihood of confusion – Findings not challenged as regards the factors that are essential to the analysis of that likelihood of confusion – Effect (European Parliament and Council Regulation 2017/1001, Art. 72) (see para. 46)

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 – Cosmetic, beauty or personal care and personal hygiene products (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 50-53)

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 – Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 60, 145, 162-165)

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 – Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 68, 69, 84)

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 – 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 97-99, 102, 109, 153)

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 – Elements of a trade mark having a descriptive character (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 112, 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 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 paras 131, 132, 136, 173)

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 marks Alpenrausch Dr. Spiller and RAUSCH (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 166-175)

Re:

Action brought against the decision of the First Board of Appeal of EUIPO of 8 October 2019 (Case R 2206/2015-1), relating to opposition proceedings between Rausch Kreuzlingen and Dr. Spiller.

Operative part

The Court:

1. Dismisses the action;