Keywords

Summary



Keywords

1. Community trade mark – Appeals procedure

(Rules of Procedure of the Court of First Instance, Arts 44(1), 46, 130(1), 132(1) and 135(1), second subpara.)

2. Community trade mark – Definition and acquisition of the Community 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

(Council Regulation No 40/94, Art. 8(1)(b))

Summary

1. Under Article 44(1) of the Rules of Procedure of the Court of First Instance, which applies to intellectual property matters by virtue of Articles 130(1) and 132(1) of those rules, applications lodged in an action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) must include a brief statement of the grounds relied on. Although, in that regard, specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the failure to set out the essential elements of the legal argument which must, under those provisions, appear in the application itself.

The same applies to the response of the other party to opposition proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, under Article 46 of the Rules of Procedure, which applies to intellectual property matters in accordance with the second subparagraph of Article 135(1) of those rules. Such a statement in response, in so far as it refers to pleadings submitted to OHIM, is inadmissible to the extent that the general references in it cannot be linked to the pleas and arguments put forward in the statement in response itself.

(see paras 33-35)

2. For an average German consumer there is no likelihood of confusion between, on the one hand, the word mark BUD and the figurative marks American Bud and Anheuser Busch Bud, for which registration as Community trade marks is sought for ‘beer, ale, porter, malted alcoholic and non-alcoholic beverages’ in Class 32 of the Nice Agreement, and, on the other hand, the word mark BIT and the word and figurative mark Bit registered previously in Germany for ‘beers; mineral waters and carbonated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ and ‘beer’ respectively in the same class of that Agreement, despite the fact that the products concerned are identical or similar and even though the earlier marks may have a high degree of distinctive character. In view of the notable differences between the marks at issue, and the absence of conceptual similarity between them:

– although they display a slight degree of visual and aural similarity, the word mark BUD applied for and the earlier German marks and,

– although they display a slight degree of aural similarity, the figurative marks applied for and the earlier German marks

are different considered as a whole.

There is, a fortiori , no likelihood of confusion between the trade marks applied for and the word and figurative marks ‘Bitte ein Bit!’ registered earlier in Germany for the products: ‘beer and non-alcoholic beverages’ in Class 32, and for various products in Classes 16, 18, 20, 21, 24, 25, 28, 32, 34 and 42 of the Nice Agreement respectively. Those earlier German marks contain additional word elements (‘bitte’, ‘ein’) and graphic elements (‘!’) and a particular style of writing compared with the earlier German marks including the word element ‘bit’. Thus, in visual terms, the former are even more remote from the marks applied for than the latter. Moreover, in aural terms, and even if the earlier German marks Bitte ein Bit! might be designated by reference only to the term ‘bit’ the conclusion of the Court would be no different from that regarding the earlier German marks including the word element ‘bit’. From a conceptual point of view, no evidence has been put before the Court to suggest that the marks at issue show any degree of similarity. Accordingly, assessed as a whole, the marks applied for and the earlier German marks Bitte ein Bit! are not similar.

(see paras 107, 109, 123-124)