Judgment of the General Court (Third Chamber) of 9 April 2014 – MHCS v OHIM — Ambra (DORATO)

(Case T‑249/13)

‛Community trade mark — Opposition proceedings — Application for the Community figurative mark DORATO — Earlier Community and national figurative trade marks representing bottle neck labels — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Rule 50(1) of Regulation (EC) No 2868/95’

1. Community trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 18)

2. Community trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal (Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Rule 50(1)) (see paras 21-26)

3. 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 — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 40, 44, 83)

4. 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 — Likelihood of confusion with the earlier mark — Figurative mark DORATO and figurative marks representing bottle neck labels (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41, 42, 57, 58, 66-68, 86)

5. Community trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 55)

6. 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 — Similarity of the marks concerned — Criteria for assessment — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 59)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 19 February 2013 (Case R 1877/2011-2), relating to opposition proceedings between MHCS and Ambra SA.

Operative part

The Court:

1. Dismisses the action;

2. Orders MHCS to pay the costs, including the costs necessarily incurred by Ambra SA for the purposes of the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

Judgment of the General Court (Third Chamber) of 9 April 2014 – MHCS v OHIM — Ambra (DORATO)

(Case T‑249/13)

‛Community trade mark — Opposition proceedings — Application for the Community figurative mark DORATO — Earlier Community and national figurative trade marks representing bottle neck labels — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Rule 50(1) of Regulation (EC) No 2868/95’

1. Community trade mark — Procedural provisions — Statement of reasons for decisions — Article 75, first sentence, of Regulation No 207/2009 — Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see para. 18)

2. Community trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal (Council Regulation No 207/2009, Art. 76(2); Commission Regulation No 2868/95, Rule 50(1)) (see paras 21-26)

3. 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 — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Criteria (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 40, 44, 83)

4. 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 — Likelihood of confusion with the earlier mark — Figurative mark DORATO and figurative marks representing bottle neck labels (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 41, 42, 57, 58, 66-68, 86)

5. Community trade mark — Decisions of the Office — Legality — Examination by the EU judicature — Criteria (Council Regulation No 207/2009) (see para. 55)

6. 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 — Similarity of the marks concerned — Criteria for assessment — Complex mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 59)

Re:

ACTION brought against the decision of the Second Board of Appeal of OHIM of 19 February 2013 (Case R 1877/2011-2), relating to opposition proceedings between MHCS and Ambra SA.

Operative part

The Court:

1. Dismisses the action;