Waterford Wedgwood plc v Assembled Investments (Proprietary) Ltd and Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2009-05-07
30. According to established case‑law, the likelihood of confusion on the part of the public must be assessed globally, taking into account all the relevant factors of the case in hand (see, to that effect, SABEL , paragraphs 22, and Case C‑342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 18).
31. That global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services concerned. Accordingly, a low degree of similarity between the goods or services covered may be offset by a high degree of similarity between the marks, and vice versa. The interdependence of those factors is expressly referred to in the 7th recital of Regulation No 40/94, according to which the concept of similarity is to be interpreted in relation to the likelihood of confusion, the assessment of which depends, in particular, on the recognition of the trade mark on the market and the degree of similarity between the mark and the sign and between the goods or services designated (see, by way of analogy, Canon , paragraph 17, and Lloyd Schuhfabrik Meyer , paragraph 19).
32. Moreover, given that the more distinctive the earlier mark, the greater will be the likelihood of confusion ( Sabel , paragraph 24), marks with a highly distinctive character, either per se or because of the recognition of them on the market, enjoy broader protection than marks with a less distinctive character (see Canon , paragraph 18, and Lloyd Schuhfabrik Meyer , paragraph 20).
33. It follows that there may be a likelihood of confusion, notwithstanding a low degree of similarity between the trade marks, where the goods or services covered by them are very similar and the earlier mark is highly distinctive (see, to that effect, Canon , paragraph 19, and Lloyd Schuhfabrik Meyer , paragraph 21).
34. However, the interdependence of those different factors does not mean that the complete lack of similarity can be fully offset by the strong distinctive character of the earlier trade mark. For the purposes of applying Article 8(1)(b) of Regulation No 40/94, even where one trade mark is identical to another with a particularly high distinctive character, it is still necessary to adduce evidence of similarity between the goods or services covered. In contrast to Article 8(5) of Regulation No 40/94, which expressly refers to the situation in which the goods or services are not similar, Article 8(1)(b) of Regulation No 40/94 provides that the likelihood of confusion presupposes that the goods or services covered are identical or similar (see, by way of analogy, Canon , paragraph 22).
35. It must be noted that the Court of First Instance, in paragraphs 30 to 35 of the judgment under appeal, carried out a detailed assessment of the similarity of the goods in question on the basis of the factors mentioned in paragraph 23 of the judgment in Canon . However, it cannot be alleged that the Court of First Instance did not take into account the distinctiveness of the earlier trade mark when carrying out that assessment, since the strong reputation of that trade mark relied on by Waterford Wedgwood can only offset a low degree of similarity of goods for the purpose of assessing the likelihood of confusion, and cannot make up for the total absence of similarity. Since the Court of First Instance found, in paragraph 35 of the judgment under appeal, that the goods in question were not similar, one of the conditions necessary in order to establish a likelihood of confusion was lacking (see, to that effect, Canon , paragraph 22) and therefore, the Court of First Instance was right to hold that there was no such likelihood.
40. Regarding the distortion of facts alleged by Waterford Wedgwood, it should be recalled that, in accordance with Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts or evidence are distorted, constitute points of law 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, and Case C‑25/05 P Storck  v OHIM  [2006] ECR I-5719, paragraph 40).
41. It must also be borne in mind that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see Case C‑8/95 P New Holland Ford  v Commission  [1998] ECR I‑3175, paragraph 72; Case C‑551/03 P General Motors  v Commission [2006] ECR I‑3173, paragraph 54; and Case C‑167/04 P JCB Service  v Commission  [2006] ECR I‑8935, paragraph 108).
44. While it is for the Court of First Instance alone to assess the value to be attached to the items of evidence adduced before it, and while it cannot be required to give express reasons for its assessment of the value of each piece of evidence presented to it, in particular where it considers that evidence to be unimportant or irrelevant to the outcome of the dispute (Case C‑237/98 P Dorsch Consult  v Council and Commission  [2000] ECR I‑4549, paragraphs 50 and 51), the Court of First Instance is none the less obliged to provide reasons which will allow the Court to exercise its judicial review. Those reasons must make it possible for the Court to review any distortion of the evidence submitted to the Court of First Instance (Case C‑198/03 P Commission  v CEVA and Pfizer  [2005] ECR I‑6357, paragraph 50).