Judgment of the General Court (Sixth Chamber) of 20 January 2021 –

Apologistics v EUIPO – Peikert (discount-apotheke.de)

(Case T‑844/19)

(EU trade mark – Opposition proceedings – Application for the EU figurative mark discount-ap*theke.de – Earlier EU word marks APODISCOUNTER and APO and earlier figurative marks apo-discounter.de, apo.co and apo.de – Relative ground for refusal – No 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 – 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 29, 30, 102, 103)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 31)

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 mark discount-ap*theke.de – Word marks APODISCOUNTER and APO and figurative marks apo-discounter.de, apo.co and apo.de (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 32, 34, 48, 49, 54, 96, 111-115, 120)

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 – Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 38, 39)

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 (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 56, 57)

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 – 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 58, 59)

7. 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 – Annulment or variation for reasons appearing after judgment was delivered – Precluded (European Parliament and Council Regulation 2017/1001, Arts 72(2) and 95) (see para. 100)

Re:

Action brought against the decision of the Fifth Board of Appeal of EUIPO of 10 October 2019 (Case R 2309/2018-5), relating to opposition proceedings between Apologistics and Mr Peikert.

Operative part

The Court:

1. Dismisses the action;