CELEX: 62010CO0370
Language: en
Date: 2011-03-14 00:00:00
Title: Order of the Court (Fifth Chamber) of 14 March 2011. # Ravensburger AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs). # Appeal - Community trade mark - Figurative mark EDUCA Memory game - Application for a declaration of invalidity made by the proprietor of the national and international word marks MEMORY - Rejection of the application for a declaration of invalidity by the Board of Appeal - Regulation (EC) No 40/94 - Article 8(1)(b) and (5) - Relative grounds for refusal. # Case C-370/10 P.

ORDER OF THE COURT (Fifth Chamber)
      14 March 2011 (*)
      
      (Appeal – Community trade mark – Figurative mark EDUCA Memory game – Application for a declaration of invalidity made by the proprietor of the national and international word marks MEMORY – Rejection of the application for a declaration of invalidity by the Board of Appeal – Regulation (EC) No 40/94 – Article 8(1)(b) and (5) – Relative grounds for refusal)
      In Case C‑370/10 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 July 2010,
      Ravensburger AG, established in Ravensburg (Germany), represented by H. Harte-Bavendamm and M. Goldmann, Rechtsanwälte,
      
      appellant,
      the other parties to the proceedings being:
      Office for Harmonisation in the Internal Market (Trade Marks and Designs), represented by D. Botis, acting as Agent,
      
      defendant at first instance,
      Educa Borras SA, established in Barcelona (Spain),
      
      party to the proceedings before the Board of Appeal,
      THE COURT (Fifth Chamber),
      composed of J.-J. Kasel, President of the Chamber, A. Borg Barthet (Rapporteur) and E. Levits, Judges,
      Advocate General: N. Jääskinen,
      Registrar: A. Calot Escobar,
      after hearing the Advocate General,
      makes the following
      Order
      1        By its appeal, Ravensburger AG seeks to have set aside the judgment of the General Court of the European Union of 19 May 2010
         in Case T‑243/08 Ravensburger v OHIM – Educa Borras (EDUCA Memory game)(‘the judgment under appeal’), by which the General Court dismissed its action brought against the decision of the Second
         Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 8 April 2008 (Case
         R 597/2007-2), relating to invalidity proceedings between Ravensburger AG and Educa Borras SA (‘the contested decision’).
      
       Legal context
      2        Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended by Council
         Regulation (EC) No 1891/2006 of 18 December 2006 (OJ 2006 L 386, p. 14) (‘Regulation No 40/94’), was repealed and replaced
         by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered
         into force on 13 April 2009. However, in view of the date of the facts, the present dispute is governed by Regulation No 40/94.
      
      3        Article 8 of Regulation No 40/94, entitled ‘Relative grounds for refusal’, provided in paragraph 1:
      
      ‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:
      …
      b)      if because of its identity with or similarity to the earlier trade mark and the identity or similarity of the goods or services
         covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the
         earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade
         mark.’
      
      4        Article 8(5) of that regulation provided:
      
      ‘Furthermore, upon opposition by the proprietor of an earlier trade mark within the meaning of paragraph 2, the trade mark
         applied for shall not be registered where it is identical with or similar to the earlier trade mark and is to be registered
         for goods or services which are not similar to those for which the earlier trade mark is registered, where in the case of
         an earlier Community trade mark the trade mark has a reputation in the Community and, in the case of an earlier national trade
         mark, the trade mark has a reputation in the Member State concerned and where the use without due cause of the trade mark
         applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade
         mark.’
      
      5        Article 74 of the Regulation, entitled ‘Examination of the facts by the Office of its own motion’, provided in paragraph 1:
      
      ‘In proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative
         grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments
         provided by the parties and the relief sought.’
      
      6        Article 75 of Regulation No 40/94, entitled ‘Oral proceedings’, provided in paragraph 1:
      
      ‘If the Office considers that oral proceedings would be expedient they shall be held either at the instance of the Office
         or at the request of any party to the proceedings.’
      
       Facts
      7        On 20 March 1997, Educa Borras SA (‘Educa Borras’) filed at OHIM an application under Regulation No 40/94 for registration
         of the following figurative sign as a Community trade mark:
      
      
      8        The goods in respect of which registration was applied for fall within Class 28 of the Nice Agreement Concerning the International
         Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended
         (‘the Nice Agreement’), and correspond to the description ‘Games and playthings’.
      
      9        On 7 October 2002, the mark was registered as a Community trade mark (‘the mark at issue’).
      
      10      On 8 October 2003, the appellant filed an application for a declaration that the mark at issue was invalid on the grounds
         referred to in Article 52(1)(a) and Article 8(1) and (5) of Regulation No 40/94.
      
      11      The application for a declaration of invalidity was based on a number of earlier rights for which the appellant also claimed
         a reputation in the territories concerned. Those earlier rights included:
      
      –        the international word mark MEMORY, registered on 14 November 1972 under the reference R393512 for a range of goods in Class
         28 of the Nice Agreement and having effect inter alia in Austria;
      
      –        the national word mark MEMORY, registered in Germany on 15 November 1977 under the reference 964625 for placing card games
         in Class 28.
      
      12      Those two earlier word marks MEMORY are hereinafter referred to as ‘the earlier marks’.
      
      13      By decision of 22 February 2007, the Cancellation Division of OHIM granted the application for the declaration of invalidity
         made by the appellant on the basis of Article 8(1)(b) of Regulation No 40/94, declared the mark at issue invalid and ordered
         Educa Borras to pay the costs.
      
      14      On 18 April 2007, Educa Borras filed a notice of appeal against the decision of the Cancellation Division. In the course of
         the proceedings before the Board of Appeal, the appellant requested an oral hearing in order to underline the well‑known character
         and high degree of distinctiveness of the earlier marks.
      
      15      By the contested decision, the Second Board of Appeal of OHIM annulled the decision of the Cancellation Division of 22 February
         2007, dismissed the application for the declaration of invalidity of the mark at issue, rejected the request for an oral hearing
         and ordered the appellant to pay the costs.
      
      16      In that regard, the Board of Appeal found that the word ‘educa’ constituted the dominant element of the mark at issue and
         that the word ‘memory’ did not have an independent distinctive role in that mark, because, where it appears with the component
         ‘game’, it will simply be perceived as a compound noun meaning ‘memory game’, that is to say as a descriptive expression referring
         to the kind of game in question.
      
      17      For these reasons, the Board of Appeal concluded that the marks in question were visually, phonetically and conceptually different
         and that, therefore, one of the essential conditions for the application of Article 8(1)(b) and (5) of Regulation No 40/94
         had not been met.
      
      18      In rejecting the appellant’s request for an oral hearing, the Board of Appeal found that the alleged reputation or enhanced
         distinctiveness of the earlier marks would not have affected its conclusion that the signs in question were visually, phonetically
         and conceptually different.
      
       Procedure before the General Court and the judgment under appeal
      19      By application lodged at the Registry of the General Court on 23 July 2010, the appellant brought an action against the contested
         decision.
      
      20      In support of its action, the appellant raised four pleas in law alleging infringement of, first, Article 8(1)(b) of Regulation
         No 40/94, secondly, Article 8(5), thirdly, Article 74 and, fourthly, Article 75 of that regulation.
      
      21      The General Court began by noting, in paragraph 24 of the judgment under appeal, that, in so far as the earlier marks have
         effect in German‑speaking countries and in so far as the goods in question are everyday consumer goods, the relevant public
         by reference to which the likelihood of confusion must be assessed is the average German‑speaking consumer, who is reasonably
         well-informed and reasonably observant and circumspect, and whose level of attention in relation to the goods in question
         is neither particularly high nor particularly low.
      
      22      The General Court pointed out in particular, in paragraph 25 of the judgment under appeal, that the conclusion of the Board
         of Appeal, set out in paragraphs 39 and 40 of the contested decision, that there was no likelihood of confusion between the
         marks in question, was based on the assessment that those marks were visually, phonetically and conceptually neither identical
         nor similar.
      
      23      In paragraph 27 of the judgment under appeal, the General Court noted in that regard that the reputation of an earlier mark
         or its particular distinctive character must be taken into consideration for the purposes of assessing the likelihood of confusion,
         and not for the purposes of assessing the similarity of the marks in question, which is an assessment made prior to that of
         the likelihood of confusion.
      
      24      The General Court recalled, in paragraph 30 of the judgment under appeal, that the global assessment of the likelihood of
         confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, must be based on the overall
         impression given by them, bearing in mind, in particular, their distinctive and dominant components. The perception of the
         marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that
         likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to
         analyse its various details.
      
      25      The General Court also noted, in paragraph 31 of the judgment under appeal, that the assessment of the similarity between
         two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary,
         the comparison must be made by examining each of the marks at issue as a whole, which does not mean that the overall impression
         conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of
         that mark’s components.
      
      26      However, the General Court held, in paragraph 32 of the judgment under appeal, that beyond the usual case where the average
         consumer perceives a mark as a whole, and notwithstanding that the overall impression may be dominated by one or more components
         of a composite mark, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign
         including the name of the company of the third party still has an independent distinctive role in the composite sign, without
         necessarily constituting the dominant element. The General Court held that, in such a case, the composite sign and the earlier
         mark may be regarded as similar.
      
      27      Accordingly, the General Court noted, in paragraphs 33 and 34 of the judgment under appeal, that the earlier marks and the
         element ‘memory’ in the mark at issue are identical. However, by reference to the case-law of the Court of Justice, the General
         Court held that the importance of the word ‘memory’ in the mark at issue must be examined, in order to assess the similarity
         of the marks in question, that is to say it must be determined whether that word is a dominant element of the mark at issue
         or, at least, has an independent distinctive role. In this context, the Court stated that it was important to recall that
         the Board of Appeal had concluded, in paragraphs 35 to 38 of the contested decision, that the element ‘educa’ was the dominant
         element of the mark at issue and that the element ‘memory’ did not have an independent distinctive role in that mark.
      
      28      The General Court pointed out, in paragraph 38 of the judgment under appeal, that ‘memory’ and ‘game’ are two common English
         words and, taking into account their graphical representation in the mark at issue, it concluded that they are easily perceived
         by the German‑speaking public as being distinct from the element ‘educa’ and as forming a logical whole, namely ‘Gedächtnisspiel’,
         which is a German word meaning memory game.
      
      29      As regards the plea relating to infringement of Article 8(5) of Regulation No 40/94, the General Court held, in paragraph
         47 of the judgment under appeal, that the application of that provision was rejected by the Board of Appeal not on the ground
         that there was no likelihood of confusion between the marks in question, but because the first condition under Article 8(5),
         namely the similarity of the marks in question, had not been satisfied.
      
      30      As regards the plea alleging infringement of Article 74 of Regulation No 40/94, the General Court pointed out, in paragraph
         50 of the judgment under appeal, that the manner in which the goods in question are marketed cannot influence the fact that
         the expression ‘memory game’ is, in the present case, descriptive, and that that manner is not important in order to determine
         whether the mark at issue, considered as a whole, is similar to the earlier marks.
      
      31      Finally, as regards the plea alleging infringement of Article 75 of Regulation No 40/94, the General Court held, in paragraph
         53 of the judgment under appeal, that it is evident, both from the wording of that article and the case-law, that the Board
         of Appeal enjoys a discretion where it decides whether oral proceedings before it, which have been requested by a party, are
         really necessary or not.
      
      32      Since none of the four pleas relied upon by the appellant in support of its action before the General Court was upheld, the
         Court dismissed the action in its entirety.
      
       Forms of order sought before the Court of Justice
      33      By its appeal, the appellant claims that the Court should:
      
      –        set aside the judgment under appeal and annul the contested decision;
      –        as appropriate, remit the case to OHIM and
      –        order OHIM to pay the costs.
      34      OHIM contends that the Court should dismiss the appeal and order the appellant to pay the costs.
      
       Consideration of the appeal
      35      Under Article 119 of its Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded,
         the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned
         order dismiss the appeal in whole or in part, without opening the oral procedure.
      
      36      In support of its appeal, the appellant puts forward four pleas in law. The first plea alleges that the General Court erred
         in law in finding that it did not need to take into account the reputation of the earlier marks, by wrongly assuming that
         the conditions for the applicability of Article 8(1)(b) and (5) of Regulation No 40/94 were not met in the present case. The
         second plea alleges that the General Court erred in law in carrying out a single factual assessment of similarity with implications
         under both Article 8(1)(b) and Article 8(5) of Regulation No 40/94 even though the two provisions have entirely distinct sets
         of tests for examining a trade mark application. By its third plea the appellant submits that the General Court erred in law
         in not objecting to the Second Board of Appeal's conclusion that the market circumstances as regards the use of house marks,
         on the one hand, and trade marks for specific products, on the other, were irrelevant. The fourth plea alleges infringement
         of Article 75 of the Regulation.
      
       The first plea
       Arguments of the parties
      37      The appellant claims that the General Court erred in law in failing to take account of the reputation of the earlier marks
         because it held that the conditions for the application of Article 8(1)(b) and (5) of Regulation No 40/94 were not met.
      
      38      The appellant maintains that, in holding, in paragraph 27 of the judgment under appeal, that ‘the reputation of an earlier
         mark or its particular distinctive character must be taken into consideration for the purposes of assessing the likelihood
         of confusion, and not for the purposes of assessing the similarity of the marks in question, which is an assessment made prior
         to that of the likelihood of confusion’, the General Court did not give any reasons for that misinterpretation or cite any
         case-law in its support, and that it did not take into account the facts of the case or the evidence the appellant submitted.
      
      39      The appellant argues that an earlier mark used by a third party in a composite sign may still have an independent distinctive
         role in the composite sign without necessarily constituting the dominant element and that, in such a case, as here, where
         the company name Educa Borras is combined with the trade mark MEMORY and the descriptive word ‘game’, the overall impression
         may lead the public concerned to believe that the goods derive, at the very least, from companies which are linked and that
         there is thus a likelihood of confusion.
      
      40      The appellant considers that the enhanced distinctiveness of the earlier trade mark has to be taken into account for the assessment
         of the similarity of signs, and not only for the assessment of the overall likelihood of confusion once the similarity of
         signs has been established.
      
      41      OHIM contends, first of all, that the first plea is inadmissible in so far as the appellant contests the assessment of the
         General Court with regard to the similarity of the signs and, in particular, its finding that the element ‘Memory’ is not
         the dominant element of the sign at issue and that it does not have an independent distinctive role in it. That assessment
         is purely factual and cannot be called into question in the context of an appeal before the Court of Justice.
      
      42      Next, OHIM contends that the first plea must be rejected as unfounded.
      
      43      OHIM submits in this regard that, as regards the alleged failure by the General Court to take into account the reputation
         of the earlier mark, it is settled case-law of the Court of Justice that the existence of a likelihood of confusion within
         the meaning of Article 8(1)(b) of Regulation No 40/94 presupposes that both the marks and the goods are identical or similar.
         Accordingly, the identity or similarity between the signs and between the goods are to be understood as cumulative conditions
         which must necessarily be satisfied for the application of that provision. In consequence, according to that case-law, there
         can be no likelihood of confusion, whatever the reputation of the earlier mark and regardless of the degree of identity or
         similarity between the goods or services concerned. Therefore, where the signs or the goods or services are dissimilar, the
         possible reputation of the earlier mark cannot influence the outcome of the assessment of likelihood of confusion. Accordingly,
         the finding of the General Court at paragraph 27 of the judgment under appeal is correct.
      
      44      OHIM argues that the fact that the earlier mark may be distinctive or reputed is entirely irrelevant, and that the distinctive
         character of that mark as a whole is a factor which is extraneous to the question of the appreciation of the visual, phonetic
         or conceptual similarity of the marks in question and which becomes relevant only when assessing the existence of a likelihood
         of confusion. Accordingly, the possible reputation of the earlier mark does not alter the fact that, in the figurative sign
         of the trade mark at issue, the word ‘memory’ is integrated in the expression ‘memory game’ or that this expression will be
         perceived by the average consumer as describing the goods in question, in the present case ‘memory games’.
      
      45      Lastly, OHIM adds that the word ‘memory’, by being linked with the word ‘game’ to form the expression ‘memory game’, cannot
         be regarded as ‘independent’. Furthermore, since that expression is descriptive and its descriptiveness depends in particular
         on the meaning of the word ‘memory’, that word cannot be said to be ‘distinctive’.
      
      46      According to OHIM, the General Court concluded, in paragraphs 41 and 42 of the judgment under appeal, that the element ‘educa’
         was not only dominant, but also the only distinctive element of the mark at issue and that the word ‘Memory’ could not be
         regarded as having an independent distinctive role in the mark, as it would merely be perceived as an integral part of the
         descriptive expression ‘memory game’.
      
       Findings of the Court
      47      With regard to the admissibility of the first plea, it must be stated that, by this plea, the appellant claims that the General
         Court erred in law when it found, in paragraph 27 of the judgment under appeal, that there was no need to take account of
         the reputation of an earlier mark for the purposes of assessing the similarity of the marks in question. This plea thus raises
         a question of law which is subject, as such, to review by the Court of Justice on appeal and, accordingly, it is admissible.
      
      48      As regards the merits of this plea, it must be stated that the General Court was fully entitled to hold that there is no similarity
         between the marks in question. In paragraph 42 of the judgment under appeal, it noted that the dominant element of the mark
         at issue was the word ‘educa’ and that the element ‘memory’ did not have an independent distinctive role in that mark. It
         concluded, by comparing the mark at issue, considered as a whole, with the earlier marks, that the marks in question were
         visually, phonetically and conceptually neither identical nor similar.
      
      49      Since the examination of the marks in question led the General Court to hold that those marks are different, the Court was
         justified in finding, in paragraph 27 of the judgment under appeal, that it was not necessary to take into consideration the
         reputation of the earlier marks (see, in particular, judgment of 11 December 2008 in Case C‑57/08 P Gateway v OHIM, not published in the ECR, paragraph 56).
      
      50      Since the marks in question are not similar, there is no need to take account of the reputation of the earlier mark, since
         it does not fall within the scope of the test of similarity and cannot serve to increase the similarity between those marks
         (see, to that effect, C-254/09 P Calvin Klein Trademark Trust v OHIM [2010] ECR I‑0000, paragraph 68).
      
      51      In addition, as regards the appellant’s argument that the overall impression produced by the mark at issue may lead the public
         to believe that the goods derive from companies which are linked economically and therefore create a likelihood of confusion
         in the mind of the average consumer of the goods, it should be recalled that, where there is no similarity between the earlier
         mark and the mark applied for, the reputation of or the well-known nature attaching to the earlier mark and the fact that
         the goods or services concerned are identical or similar are not sufficient to establish a likelihood of confusion between
         the marks in question (see, to that effect, Case C-106/03 P Vedial v OHIM [2004] ECR I-9573, paragraph 54; Case C-234/06 P Il Ponte Finanziaria v OHIM [2007] ECR I-7333, paragraphs 50 and 51; Gateway v OHIM, paragraphs 55 and 56, and Calvin Klein Trademark Trust v OHIM, paragraph 53). 
      
      52      The first plea must therefore be rejected as unfounded.
      
       The second plea
       Arguments of the parties
      53      The appellant claims that the General Court erred in law in carrying out a single factual assessment of similarity with implications
         under both Article 8(1)(b) and Article 8(5) of Regulation No 40/94, even though the tests set out in those two provisions
         for examining an application for registration are completely different because those provisions aim to protect distinct functions
         of trade marks.
      
      54      According to the appellant, for the purposes of Article 8(1)(b) of Regulation No 40/94, the signs in question must be similar
         enough to lead to a likelihood of confusion, whereas under Article 8(5) of Regulation No 40/94 the similarity just requires
         that the earlier mark is called to mind.
      
      55      The appellant also states that a mark having a reputation may be called to mind even though it is made part of a composite
         sign and does not constitute the dominant element.
      
      56      The appellant submits that, for the purposes of assessing whether there is a link between the marks in question, the degree
         of the earlier mark’s distinctive character must be taken into consideration. Accordingly, a different test to that applied
         for the purposes of Article 8(1)(b) of Regulation No 40/94 must be applied in the context of the analysis of similarity for
         the purposes of Article 8(5) of Regulation No 40/94.
      
      57      OHIM considers that this plea must be rejected principally as inadmissible and in the alternative as clearly unfounded.
      
      58      It argues that this plea is inadmissible to the extent that the comparison of the signs in question is a factual assessment
         which cannot be the subject of an appeal to the Court of Justice.
      
      59      On the merits, OHIM contends that the General Court was correct to consider, in paragraphs 45 to 47 of the judgment under
         appeal, that the Board of Appeal had rejected the appellant’s argument on the ground not that there was no likelihood of confusion
         between the marks in question, but rather because they were neither identical nor similar and thus the first condition under
         Article 8(5) of Regulation No 40/94 regarding the similarity of the signs had not been met.
      
      60      According to OHIM, the three conditions laid down in Article 8(5) of Regulation No 40/94 are cumulative and each of them must
         be proved independently. Therefore, when the first condition, namely the similarity of the signs, is not met, there is no
         need to consider the other conditions, since the aforementioned provision has become inapplicable in its entirety.
      
      61      As regards the appellant’s argument on the existence of a link between the marks, OHIM contends that such a link must in fact
         be assessed globally, taking also into account the earlier mark. However, it submits that, according to the case-law, it has
         never been held that that link may exist where the marks in question are not similar, or that the existence of a considerable
         reputation can convert dissimilar signs into similar ones.
      
       Findings of the Court
      62      With regard to the admissibility of the second plea, it must be held that, by this plea, the appellant claims that the General
         Court erred in law in carrying out a single factual assessment of the similarity of the marks in question, even though the
         tests set out in Article 8(1)(b) and Article 8(5) of Regulation No 40/94 for examining an application for registration are
         different. This plea thus raises a question of law which is subject, as such, to review by the Court of Justice on appeal
         and, accordingly, it is admissible.
      
      63      As regards the merits of this plea with regard to the analysis of the condition that the earlier mark and the mark whose registration
         is being contested must be identical or similar, as provided for under Article 8(1)(b) and (5), the factual assessment of
         similarity is carried out according to the same criteria. When the condition of similarity is not met under Article 8(1)(b)
         of Regulation No 40/94, it must also be held, on the basis of the same analysis, that nor is that condition met under Article
         8(5) of Regulation No 40/94 (see, to that effect, Gateway v OHIM, paragraphs 62 to 64).
      
      64      It follows that the General Court was fully entitled to refrain from applying Article 8(5) of Regulation No 40/94 on the basis
         of the absence of similarity of the marks in question, as resulting from their examination under Article 8(1)(b) of that regulation,
         as did the Board of Appeal in the contested decision.
      
      65      The second plea must therefore be rejected as unfounded.
      
       The third plea
       Arguments of the parties
      66      The appellant submits that the General Court, in paragraph 50 of the judgment under appeal, erred in law in not objecting
         to the conclusion of the Second Board of Appeal that the market circumstances as regards the use of house marks and trade
         marks for specific products were irrelevant as regards the similarity of the marks in question.
      
      67      The appellant submits that the General Court should have taken into account those circumstances and the manner in which the
         public concerned interprets the various components of composite marks, for the purposes of assessing the likelihood of confusion
         and the existence of similarity between the earlier marks and the trade mark whose registration is being contested.
      
      68      OHIM argues in this regard that the General Court, in paragraph 40 of the judgment under appeal, clearly took account of the
         appellant’s arguments with regard to the marketing of the goods, but it rejected them as not being relevant. The manner in
         which the goods in question are marketed cannot influence the fact that the expression ‘memory game’ is descriptive in the
         mark at issue and, hence, it is not decisive for the purposes of knowing whether the marks in question, considered as a whole,
         are similar or not.
      
       Findings of the Court
      69      Pursuant to Article 74(1) of Regulation No 40/94, OHIM is required to examine the facts of its own motion. In proceedings,
         such as those in the present case, relating to relative grounds for refusal of registration, that examination is to be restricted
         to the facts, evidence and arguments provided by the parties and the relief sought.
      
      70      In the present case, it is clear from the very wording of the plea raised by the appellant that it complains that the General
         Court did not set aside the Board of Appeal’s analysis and conclusion with regard to the lack of relevance of market circumstances
         for establishing similarity between the mark at issue and the earlier marks. However, it is apparent from paragraphs 49 to
         51 of the judgment under appeal that the General Court examined the substance of this plea, assessed its purport and concluded
         that it was unfounded.
      
      71      The General Court therefore took account of the facts and circumstances relied on by the appellant and was fully entitled
         to conclude that the manner in which the goods are marketed cannot influence the fact that the expression ‘memory game’ is
         descriptive and that it cannot serve to determine whether the mark at issue is similar to the earlier marks. There are therefore
         no grounds for alleging that the General Court did not verify whether the Board of Appeal had carried out an examination of
         this plea in accordance with its obligation in this respect under Article 74(1) of Regulation No 40/94.
      
      72      Consequently, the third plea must be rejected as unfounded.
      
       The fourth plea
       Arguments of the parties
      73      The appellant complains that the General Court infringed Article 75 of Regulation No 40/94, because it held that the Second
         Board of Appeal had been fully entitled to decide not to hold an oral hearing on the ground that the well-known character,
         reputation or enhanced distinctiveness of the earlier mark would not affect the outcome of the dispute. In addition, the appellant
         submits that, even if it is clear from the wording of that article that the Board of Appeal has a wide discretion in deciding
         whether or not to hold a hearing, it is nevertheless for the General Court to check whether the Board of Appeal used that
         discretion in a manifestly incorrect manner.
      
      74      OHIM submits that the Board of Appeal did not exceed the limits of its discretion. Both the Board of Appeal and the General
         Court gave sufficient reasons as to why a hearing was not expedient in the present case, by explaining that the possible reputation
         of the earlier mark could not have an influence on the outcome of the case and that, in any event, the appellant had not shown
         which points of law or fact, which had not already been explained in its written submissions, it wished to raise at the hearing.
      
       Findings of the Court
      75      In paragraphs 53 and 54 of the judgment under appeal, the General Court did not err in law in assessing the manner in which
         Article 75 of Regulation No 40/94 had been applied by the Second Board of Appeal. The General Court did in fact check that
         the Board of Appeal had all the information it needed in order to take its decision.
      
      76      Furthermore, it should be observed that, as stated in paragraph 50 of this order, the appellant’s arguments put forward to
         demonstrate that the Board of Appeal was wrong not to hold a hearing could not have had an impact on the outcome of the dispute
         since neither the reputation nor the enhanced distinctiveness of the earlier mark could be taken into account since the marks
         in question are not similar.
      
      77      In any event, it is apparent from the wording of Article 75(1) of Regulation No 40/94 that the Board of Appeal enjoys a discretion
         as to whether, where a party requests that oral proceedings be organised, they are really necessary.
      
      78      Consequently, the fourth plea is unfounded.
      
      79      Since none of the pleas put forward by the appellant in support of this appeal is well founded, the appeal must be dismissed.
      
       Costs
      80      Under Article 69(2) of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 118 of those Rules,
         the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         Since OHIM has applied for costs and the appellant has been unsuccessful, the latter must be ordered to pay the costs.
      
      On those grounds, the Court (Fifth Chamber) hereby orders:
      1.      The appeal is dismissed.
      2.      Ravensburger AG shall pay the costs.
      [Signatures]
      * Language of the case: English.