Judgment of the General Court (Fifth Chamber) of 22 January 2015 — Novomatic v OHIM — Simba Toys (AFRICAN SIMBA)

(Case T‑172/13)

‛Community trade mark — Opposition proceedings — Application for Community word mark AFRICAN SIMBA — Earlier national figurative mark Simba — Relative ground for refusal — Genuine use of the earlier mark — Article 42(2) and (3) of Regulation (EC) No 207/2009 — Obligation to state reasons — Article 75 of Regulation No 207/2009 — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009’

1. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Interpretation having regard to the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 20)

2. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Criteria for assessment — Requirement of solid and objective evidence (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 21-24, 27)

3. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Application of the criteria to the case in question (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 25)

4. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Genuine use — Concept — Determination of a quantitative threshold of minimum use — Exclusion (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 26)

5. Community trade mark — Observations of third parties and opposition — Examination of the opposition — Proof of use of the earlier mark — Probative value of the evidence — Criteria for assessment (Council Regulation No 207/2009, Arts 42(2) and (3), and 78(1)(f); Commission Regulation No 2868/95, Art. 1, Rule 22(4)) (see paras 30, 31)

6. 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 paras 45-47)

7. 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 — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 63, 64, 154, 160)

8. 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 — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 65, 67)

9. 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 between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 69, 80)

10. 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 — Composite mark — Determination of dominant component(s) (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 116-120, 129, 130, 139-143)

11. 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 — Word mark AFRICAN SIMBA and figurative mark Simba (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 158, 159, 161, 171, 172)

12. 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 — Criteria for assessment — Early mark occupying a distinctive independent position in the trade mark sought (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 164-167)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 January 2013 (Case R 157/2012-4) relating to opposition proceedings between Simba Toys GmbH & Co. KG and Novomatic AG.

Operative part

The Court:

1. Dismisses the action;