Bimbo SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2014-05-08
12. Given that the application for registration of the Community trade mark at issue was filed on 25 May 2006 and that that date is determinative for the purposes of identifying the applicable substantive law (see, to that effect, orders in Case C‑14/12 P Shah  v Three-N-Products Private  EU:C:2013:349, paragraph 2, and Case C‑346/12 P DMK v OHIM  EU:C:2013:397, paragraph 2), the present dispute is governed by the procedural provisions of Regulation No 207/2009 and the substantive provisions of Regulation No 40/94.
The first part of the single ground of appeal
Arguments of the parties
19. As to the merits, according to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically-linked undertakings, constitutes a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 (see Case C‑334/05 P OHIM  v Shaker  EU:C:2007:333, paragraph 33, and Case C‑193/06 P Nestlé  v OHIM  EU:C:2007:539, paragraph 32).
20. The existence of a likelihood of confusion on the part of the public must be assessed globally, account being taken of all factors relevant to the circumstances of the case (see, to that effect, Case C‑251/95 SABEL EU:C:1997:528, paragraph 22; OHIM  v Shaker  EU:C:2007:333, paragraph 34; and Nestlé  v OHIM  EU:C:2007:539, paragraph 33).
21. The global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks at issue, must be based on the overall impression given by the marks, account being taken, in particular, of 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 this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see, to that effect, SABEL  EU:C:1997:528, paragraph 23; OHIM  v Shaker  EU:C:2007:333, paragraph 35; and Nestlé  v OHIM  EU:C:2007:539, paragraph 34).
22. 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 in question as a whole ( OHIM  v Shaker  EU:C:2007:333, paragraph 41).
23. The overall impression conveyed to the relevant public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components. However, it is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element ( OHIM  v Shaker  EU:C:2007:333, paragraphs 41 and 42, and Nestlé  v OHIM  EU:C:2007:539, paragraphs 42 and 43 and the case-law cited).
24. In this connection, the Court of Justice has stated that it is possible that an earlier mark used by a third party in a composite sign that includes the name of the company of the third party retains an independent distinctive role in the composite sign. Accordingly, in order to establish the likelihood of confusion, it suffices that, on account of the earlier mark still having an independent distinctive role, the public attributes the origin of the goods or services covered by the composite sign to the owner of that mark (Case C‑120/04 Medion  EU:C:2005:594, paragraphs 30 and 36, and order in Case C‑353/09 P Perfetti Van Melle  v OHIM  EU:C:2011:73, paragraph 36).
25. None the less, a component of a composite sign does not retain such an independent distinctive role if, together with the other component or components of the sign, that component forms a unit having a different meaning as compared with the meaning of those components taken separately (see, to that effect, order in Case C‑23/09 P ecoblue  v OHIM and Banco Bilbao Vizcaya Argentaria  EU:C:2010:35, paragraph 47; Becker  v Harman International Industries  EU:C:2010:368, paragraphs 37 and 38; and order in Perfetti Van Melle  v OHIM  EU:C:2011:73, paragraphs 36 and 37).
34. Indeed, as the Advocate General observed in points 25 and 26 of his Opinion, it is necessary to ascertain, in each individual case, the overall impression made on the target public by the sign for which registration is sought, by means of, inter alia, an analysis of the components of a sign and of their relative weight in the perception of the target public, and then, in the light of that overall impression and all factors relevant to the circumstances of the case, to assess the likelihood of confusion.
36. Moreover, the individual assessment of each sign, as required by the settled case-law of the Court of Justice, must be made in the light of the particular circumstances of the case and cannot therefore be regarded as being subject to general presumptions. As the Advocate General observed in point 24 of his Opinion, it is clear, in particular, from the case-law subsequent to Medion  (EU:C:2005:594), that the Court of Justice did not introduce, in that judgment, a derogation from the principles governing the assessment of the likelihood of confusion.