Aceites del Sur-Coosur, anciennement Aceites del Sur v European Union Intellectual Property Office.
Date: 2009-09-03
46. By the second part of the second ground of appeal, the appellant maintains, first, that in spite of the fact that Community case-law provides that the likelihood of confusion must be appreciated globally, taking into account all factors relevant to the circumstances of the case (see, inter alia, Case C‑251/95 SABEL [1997] ECR I‑6191, paragraph 22, and Case C-361/04 P Ruiz-Picasso and Others v OHIM [2006] ECR I‑643, paragraph 18), the Court of First Instance failed to consider two extremely important and relevant factors, namely, first, the earlier coexistence of the marks at issue over a long period on the Spanish market for olive oil and, second, their reputation on that market. Thus the Court of First Instance did not properly evaluate the element of similarity between those marks.
59. As regards the appellant’s arguments concerning the errors committed by the Court of First Instance in its investigation of the existence of a risk of confusion between the marks at issue, it must first be recalled that, as the Court of Justice has consistently held, the existence of such 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, to that effect, SABEL , paragraph 22; Case C‑342/97 Lloyd Schuhfabrik Meyer  [1999] ECR I‑3819, paragraph 18; order of 28 April 2004 in Case C‑3/03 P Matratzen Concord  v OHIM  [2004] ECR I‑3657, paragraph 28; Case C‑120/04 Medion  [2005] ECR I-8551, paragraph 27; and Case C‑334/05 P OHIM  v Shaker  [2007] ECR I‑4529, paragraph 34).
60. 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 (see OHIM  v Shaker , paragraph 35 and the case-law cited).
61. In particular, the Court has held that in the context of examination 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 (see order in Matratzen Concord  v OHIM , paragraph 32; Medion , paragraph 29; and OHIM  v Shaker , paragraph 41).
62. In that regard, the Court has also held that, according to established case-law, the overall impression created in the mind of the relevant public by a complex 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 , paragraphs 41 and 42, and Case C‑193/06 P Nestlé  v OHIM  [2007] ECR I-114, paragraphs 42 and 43 and the case-law cited).
74. Thus, as the Court of First Instance rightly noted at paragraph 107 of the judgment under appeal, the perception of marks in the mind of the average consumer of the goods or services in question plays a decisive role in the global appreciation of the likelihood of confusion ( SABEL , paragraph 23, and Lloyd Schuhfabrik Meyer , paragraph 25) and, for the purposes of that global appreciation, the average consumer is deemed to be reasonably well-informed and reasonably observant and circumspect, but his level of attention is likely to vary according to the category of goods or services in question ( Lloyd Schuhfabrik Meyer , paragraph 26).
76. The Court of First Instance was therefore right to conclude from this, at paragraphs 109 and 110 of the judgment under appeal, that in those circumstances the figurative element of the marks at issue acquires greater importance, which increases the likelihood of confusion between them, and the differences between the signs at issue are more difficult to distinguish since, as the Court of Justice has moreover had occasion to observe (see, to that effect, OHIM  v Shaker , paragraph 35, and Nestlé  v OHIM , paragraph 34 and the case-law cited), the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details.
78. In that regard, it is important to note that the Court of First Instance has exclusive jurisdiction to make findings of fact, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. The appraisal of the facts thus does not, save where the clear sense of the evidence before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see Joined Cases C‑456/01 P and C‑457/01 P Henkel  v OHIM  [2004] ECR I‑5089, paragraphs 41 and 56, and Case C-238/06 P Develey v OHIM  [2007] ECR I‑9375, paragraph 97).
84. Secondly, as regards the argument concerning reputation, it must first be recalled that it is the reputation of the earlier mark, in this case the Carbonell mark, which must be taken into account when determining whether the similarity between the goods covered by the two marks is sufficient to give rise to the likelihood of confusion (see, to that effect, Case C-39/97 Canon [1998] ECR I‑5507, paragraph 24). Therefore, in this case the appellant cannot rely on the reputation of the La Española mark on the Spanish olive oil market, as it did moreover, unsuccessfully, at first instance, in order to establish the absence of a likelihood of confusion between the marks at issue, since it is a matter of agreement that that mark postdates the Carbonell mark. Moreover, as regards the reputation of the latter mark, the appellant does not explain how the Court of First Instance, if it had considered that element, could have attributed an enhanced distinctive character to the La Española mark and thereby excluded the existence of a likelihood of confusion between those marks.
92. In that regard, it should be noted that for a submission to be regarded as a cross-appeal under Article 117(2) of the Rules of Procedure, the party which relies on it must seek to set aside, in whole or in part, the judgment under appeal on a plea in law which was not raised in the appeal. Whether that is the case here is to be determined by reference to the wording, aim and context of the passage in question in OHIM’s response (Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑0000, paragraph 186).