MEGA Brands International, Luxembourg, Zweigniederlassung Zug v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2015-03-19
31. As the General Court correctly noted in paragraph 21 of the judgment under appeal, the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components (see, inter alia, judgments in OHIM  v Shaker , C‑334/05 P, EU:C:2007:333, paragraph 35, and Nestlé v OHIM , C‑193/06 P, EU:C:2007:539, paragraph 34).
32. 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, 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, inter alia, judgments in OHIM  v Shaker , EU:C:2007:333, paragraph 41, and United States Polo Association  v OHIM , C‑327/11 P, EU:C:2012:550, paragraph 57).
38. It follows from the case-law cited in paragraph 32 of the present judgment that, in some circumstances, the assessment of the similarity may be made solely on the basis of the dominant element of a composite mark. However, that case-law concerns only exceptional situations (order in Repsol  v OHIM , C‑466/13 P, EU:C:2014:2331, paragraph 83), and it is only if all the other components of the mark are negligible in the overall impression conveyed by it that the assessment of the similarity can be carried out solely on the basis of the dominant element (see, inter alia, judgments in Aceites del Sur-Coosur  v Koipe , C‑498/07 P, EU:C:2009:503, paragraph 62, and United States Polo Association  v OHIM , EU:C:2012:550, paragraph 57).
47. Under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence submitted to it. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments in Nestlé  v OHIM , EU:C:2007:539, paragraph 53, and United States Polo Association  v OHIM , EU:C:2012:550, paragraph 62).
48. The assessment of the visual and phonetic similarity of the signs at issue is an assessment of a factual nature (see to that effect, inter alia, order in Longevity Health Products  v OHIM , C‑311/14 P, EU:C:2015:23, paragraph 34 and the case-law cited) and therefore can be the subject of an appeal only if there has been a distortion of those facts.
49. In that regard, it should be recalled that, as is clear from settled case-law of the Court, such a distortion must be obvious from the documents in the case, without it being necessary to undertake a fresh assessment of the facts and evidence (see, inter alia, order in Mundipharma  v OHIM , C‑669/13 P, EU:C:2014:2308, paragraph 33 and the case-law cited).
50. In the present case, it must be held that, although the appellant claims that the judgment under appeal is based on a distortion of the facts and evidence which formed the basis for the General Court’s assessment of the visual and phonetic similarity of the signs at issue, the arguments which it develops in support of that claim are limited, essentially, to a repetition of the assertions already developed in the written submissions to the General Court and do not contain any specific legal argument capable of demonstrating, other than an allegedly incorrect assessment of certain facts by the General Court, that those facts were distorted in the judgment under appeal.
51. It follows that the third and fourth parts of the ground of appeal alleging infringement of Article 8(1)(b) of Regulation No 207/2009 must be rejected as being inadmissible.
Failure to provide reasons in the judgment under appeal
Arguments of the parties
54. According to settled case-law, the duty incumbent upon the General Court under Article 36 of the Statute of the Court of Justice, applicable to the General Court under the first paragraph of Article 53 of that Statute, and under Article 81 of the Rules of Procedure of the General Court, to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning of the General Court may therefore be implicit, on condition that it enables the persons concerned to know the reasons why that Court has not upheld their arguments and that it provides the Court of Justice with sufficient material for it to exercise its powers of review (see, inter alia, judgments in Edwin  v OHIM , C‑263/09 P, EU:C:2011:452, paragraph 64, and Isdin  v Bial-Portela , C‑597/12 P, EU:C:2013:672, paragraph 21 and the case-law cited).