The Tea Board v European Union Intellectual Property Office (EUIPO).
Date: 2017-09-20
36


Next, under Article 67(2) of that regulation, the regulations governing use of an EU collective mark must authorise any person whose goods or services originate in the geographical area concerned to become a member of the association which is the proprietor of the trade mark in question. Consequently, an EU collective mark consisting of a geographical indication will, in The Tea Board’s view, never be capable of distinguishing goods or services of the members of the association which is the proprietor of that trade mark from those of other undertakings. It submits in that regard that the Court held in its judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 147), that the essential function of a geographical indication is to guarantee to consumers the geographical origin of the goods and the special qualities inherent in them.
41


As a preliminary point, as regards the distortion alleged by The Tea Board, it should be recalled that, given the exceptional nature of a complaint of distortion, Article 256 TFEU, Article 58, first paragraph, of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice require, in particular, that an appellant indicate precisely the elements alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to that distortion. Such a distortion must be obvious from the documents in the file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 11 May 2017, Yoshida Metal Industry v EUIPO, C‑421/15 P, EU:C:2017:360, paragraph 23 and the case-law cited).
46


In that regard, it should be recalled that Article 8(1)(b) of Regulation No 207/2009 –– which is, in the absence of any provision to the contrary in Articles 67 to 74 of that regulation, applicable to EU collective marks pursuant to Article 66(3) of the regulation –– provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered 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.
47


It is settled case-law that, for the purposes of applying Article 8(1)(b) of Regulation No 207/2009, the likelihood of confusion presupposes both that the trade mark applied for and the earlier trade mark are identical or similar, and that the goods or services covered in the application for registration are identical or similar to those in respect of which the earlier trade mark was registered, those conditions being cumulative (judgment of 23 January 2014, OHIM v riha WeserGold Getränke, C‑558/12 P, EU:C:2014:22, paragraph 41 and the case-law cited).
48


Also according to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (see, inter alia, judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 85, and of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 65).
52


In that regard, the Court has repeatedly held that the essential function of a trade mark is to guarantee the origin of the goods to consumers, in the sense that it serves to identify the goods or services covered by the trade mark as originating from a particular undertaking and thus to distinguish those goods or services from those of other undertakings (judgment of 6 March 2014, Backaldrin Österreich The Kornspitz Company, C‑409/12, EU:C:2014:130, paragraph 20 and the case-law cited).
53


While the Court, furthermore, has already held that a trade mark may fulfil other functions than that of indicating origin which are equally worthy of protection against infringement by third parties, such as that of guaranteeing the quality of the goods or services which it designates, or those of communication, investment or advertising, it has nonetheless always emphasised that the essential function of a mark remains that of indicating origin (see, to that effect, judgments of 23 March 2010, Google France and Google, C‑236/08 to C‑238/08, EU:C:2010:159, paragraphs 77 and 82, and of 22 September 2011, Interflora and Interflora British Unit, C‑323/09, EU:C:2011:604, paragraphs 37 to 40 and the case-law cited).
55


That conclusion cannot be called into question by the arguments which The Tea Board bases on Article 67(2) of Regulation No 207/2009 and the case-law arising from the judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 147), whereby it submits that an EU collective mark under Article 66(2) of Regulation No 207/2009 is, by its very nature, incapable of performing a distinguishing function of that kind.
56


While The Tea Board’s argument based on Article 67(2) of Regulation No 207/2009 remains unclear and unsubstantiated, it must be noted that, in its judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189, paragraph 147), the Court merely held that the essential function of a geographical indication is to guarantee to consumers the geographical origin of the goods and the specific qualities inherent in them. The Court, however, made no assessment of the essential function of EU collective marks within the meaning of Article 66(2) of Regulation No 207/2009.
59


In that regard, the Court has already held that Article 7(1)(c) of Regulation No 207/2009 pursues an aim which is in the public interest, namely that descriptive signs or indications relating to the categories of goods or services in respect of which registration is applied for may be freely used by all, including as collective marks or as part of complex or graphic marks. That provision therefore prevents such signs or such indications from being reserved to one undertaking alone because they have been registered as individual trade marks (see, to that effect, judgments of 4 May 1999, Windsurfing Chiemsee, C‑108/97 and C‑109/97, EU:C:1999:230, paragraph 25, and of 19 April 2007, OHIM v Celltech, C‑273/05 P, EU:C:2007:224, paragraph 75 and the case-law cited).
63


In the light of the foregoing considerations, the General Court did not err in law when it held, in paragraphs 41 to 43 of the judgments under appeal, that the essential function of an EU collective mark is to distinguish the goods or services of the members of the association which is the proprietor of the trade mark from those of other undertakings, and not to distinguish those goods according to their geographical origin.
66


As regards, finally, the alleged error of law made by the General Court in paragraph 60 of the judgments under appeal, it suffices to note that that paragraph was included for the sake of completeness, given that, in paragraphs 56 to 59 of the judgments under appeal, the General Court had already held, in essence and correctly, as follows from paragraphs 43 to 63 of the present judgment, that Article 8(1)(b) of Regulation No 207/2009 is inapplicable in the present case, as one of its conditions for application had not been met. The complaint which The Tea Board directs against that paragraph is, consequently, ineffective and must be rejected (see, to that effect, judgment of 19 April 2007, OHIM v Celltech, C‑273/05 P, EU:C:2007:224, paragraphs 56 and 57).
72


As regards the argument that the qualities conveyed by the word element ‘darjeeling’ are capable of being transferred to the whole body of services for which registration is sought, it seeks, in reality, to obtain an assessment of the facts from the Court of Justice and must consequently be rejected as inadmissible (see, to that effect, judgment of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraphs 73 and 89).