Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) v Shaker di L. Laudato & C. Sas.
Date: 2007-06-12
28. As regards the plea of inadmissibility raised by Shaker, it should be noted that, pursuant to Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, in particular, Case C-104/00 P DKV v OHIM [2002] ECR I-7561, paragraph 22; Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-551, paragraph 35; Case C-25/05 P Storck v OHIM  [2006] ECR I‑5719, paragraph 40).
33. In this regard, it is settled case-law that 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 First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1); Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I‑3819, paragraph 17; and Case C-120/04 Medion  [2005] ECR I‑8551, paragraph 26).
34. Moreover, the existence of a likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see SABEL, paragraph 22; Lloyd Schuchfabrik Meyer , paragraph 18; Case C-425/98 Marca Mode [2000] ECR I-4861, paragraph 40; order in Matratzen v OHIM, paragraph 28; Medion , paragraph 27; and Case C-206/04 P Mülhens v OHIM [2006] ECR I-2717, paragraph 18).
35. According to further settled case-law, the global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, 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 appreciation 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 SABEL , paragraph 23; Lloyd Schuhfabrik Meyer , paragraph 25; Medion , paragraph 28; Mülhens v OHIM , paragraph 19; and order in Matratzen Concord v OHIM , paragraph 29).
36. It should be added that in order to assess the degree of similarity between the marks concerned, it is necessary to determine the degree of visual, aural or conceptual similarity between them and, where appropriate, to assess the importance to be attached to those various factors, taking account of the category of goods or services in question and the circumstances in which they are marketed (see Lloyd Schuhfabrik Meyer , paragraph 27).
41. It is important to note that, according to the case-law of the Court, in the context of consideration of the likelihood of confusion, 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, 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 its components (see order in Matratzen Concord v OHIM , paragraph 32; Medion , paragraph 29).
42. As the Advocate General pointed out in point 21 of her Opinion, 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.