United States Polo Association v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2012-09-06
44. In that regard, it is apparent from settled case-law that the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (see, in particular, Case C‑334/05 P OHIM  v Shaker  [2007] ECR I‑4529, paragraph 34; Case C‑498/07 P Aceites del Sur-Coosur  v Koipe  [2009] ECR I‑7371, paragraph 46; and Case C‑317/10 P Union Investment Privatfonds  v UniCredito Italiano  [2011] ECR I‑0000, paragraph 45).
45. It is also apparent from settled case-law that the global assessment of the likelihood of confusion, in relation to the visual, phonetic 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 assessment 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, in particular, Medion , paragraph 28; Case C‑206/04 P Mülhens  v OHIM  [2006] ECR I‑2717, paragraph 19; and OHIM  v Shaker , paragraph 35).
46. However, in paragraphs 30 and 31 of Medion , the Court held that, beyond the usual case where the average consumer perceives a mark as a whole, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element. In such a case, the overall impression produced by the composite sign may lead the public to believe that the goods or services in question come, at the very least, from companies which are linked economically, in which case the likelihood of confusion must be held to be established.
51. However, contrary to United States Polo’s claim, the General Court’s finding in paragraph 38 of the judgment under appeal does not show that it disregarded the principles laid down by the Court of Justice in Medion . In that paragraph, far from taking the view that the circumstances of the present case constituted a particular case such as that referred to in paragraph 30 of Medion , the General Court merely pointed out that the element ‘POLO’ had more distinctive character in the word sign applied for, and had an impact on the visual similarity of the signs at issue, when considered overall.
57. In accordance with settled case-law, 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 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 mark may not, in certain circumstances, be dominated by one or more of its components (see Medion , paragraph 29, and OHIM  v Shaker , paragraph 41). Nevertheless, 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 (see OHIM  v Shaker , paragraph 42).
59. Even though the General Court found, in paragraphs 44 and 45 of the judgment under appeal, that the elements ‘U.S.’ and ‘ASSN.’ were not particularly distinctive, it is apparent from those paragraphs that it took full account of those elements and examined their relative importance for the overall impression of the signs at issue. Accordingly, in paragraph 45, the General Court found, as regards the element ‘U.S.’, that ‘although that element constitutes an additional element of conceptual differentiation in relation to the earlier Community mark, the acronym US cannot be considered to be sufficiently distinctive to remove all conceptual similarity between the signs at issue’. In the same paragraph, the General Court held, so far as concerns the element ‘ASSN.’, that it cannot be considered to be sufficiently distinctive to remove all conceptual similarity between the signs at issue.
61. Moreover, in so far as United States Polo is seeking to call into question the manner in which the General Court weighed up those criteria, it should be noted that the analysis carried out by the General Court in that regard is factual in nature.
62. 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 thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted – and no allegation to that effect has been made in the present case – constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Aceites del Sur-Coosur  v Koipe , paragraph 78, and Case C‑254/09 P Calvin Klein Trademark Trust  v OHIM  [2010] ECR I‑7989, paragraph 49 and the case-law cited).