Source: EURLEX
Language: en
Format: md

Judgment of the General Court (Third Chamber) of 20 September 2016 —

Excalibur City v EUIPO — Ferrero (MERLIN’S KINDERWELT)

(Case T‑565/15)

‛EU trade mark — Opposition proceedings — Application for the EU word mark MERLIN’S KINDERWELT — Earlier national word mark KINDER — Relative ground for refusal — No similarity between the signs — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009’

| 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 18, 19) |

| 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 — Word mark MERLIN’S KINDERWELT and word mark KINDER (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 22, 61-65) |

| 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 — Similarity of the marks concerned — Assessment of the distinctiveness of an element composing a trade mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 24) |

| 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 of the marks concerned — Criteria for assessment — Composite mark (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 25-27) |

| 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 — Elements of a trade mark having a descriptive character (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 28) |

Re:

ACTION brought against the decision of the First Board of Appeal of EUIPO of 9 July 2015 (Case R 1538/2014-1), relating to opposition proceedings between Ferrero and Excalibur City.

Operative part

The Court:

| 1. | Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 July 2015 (Case R 1538/2014-1); |

| 2. | Orders EUIPO to bear its own costs and to pay those incurred by Excalibur City s.r.o.; |

| 3. | Orders Ferrero SpA to bear its own costs. |

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