Mülhens GmbH & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2006-03-23
18. The existence of a likelihood of confusion on the part of the public must therefore be appreciated globally, taking into account all factors relevant to the circumstances of the case (see, to that effect, in respect of Directive 89/104 Case C‑251/95 SABEL [1997] ECR I‑6191, paragraph 22, and Case C‑425/98 Marca Mode  [2000] ECR I‑4861, paragraph 40).
19. That global assessment must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression created by those marks, bearing in mind, in particular, their distinctive and dominant components (see, in particular, in respect of Directive 89/104, SABEL , paragraph 23, and Lloyd Schuhfabrik Meyer , paragraph 25).
21. It is conceivable that the marks’ phonetic similarity alone could create a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 (see, in respect of Directive 89/104, Lloyd Schuhfabrik Meyer , paragraph 28). However, it must be noted that the existence of such a likelihood must be established as part of a global assessment as regards the conceptual, visual and aural similarities between the signs at issue. In that regard, the assessment of any aural similarity is but one of the relevant factors for the purpose of that global assessment.
22. Therefore, one cannot deduce from paragraph 28 of the judgment in Lloyd Schuhfabrik Meyer  that there is necessarily a likelihood of confusion each time that mere phonetic similarity between two signs is established.
28. The Court of First Instance’s decision, contained in paragraphs 52 to 54 of the judgment under appeal, according to which the goods concerned are generally sold in such a way as to enable the relevant public to examine them visually, constitutes a finding of fact which is outside the jurisdiction of the Court of Justice to review on appeal. It is clear from the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points 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 and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see Case C‑37/03 P BioID  v OHIM [2005] ECR I‑0000, paragraph 43, and the case‑law there cited).
34. As has been pointed out in paragraph 19 of this judgment, the global assessment must, as regards the visual, aural or conceptual similarity of the marks in question, be based on the overall impression created by those marks, bearing in mind, in particular, their distinctive and dominant components.
35. That global assessment means that conceptual and visual differences between two signs may counteract aural similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately (see, to that effect, Case C‑361/04 P Ruiz-Picasso and Others v OHIM [2006] ECR I‑0000, paragraph 20).
41. It is sufficient to point out, in that regard, that the Court of First Instance’s decision contained in paragraphs 50 and 51 of the judgment under appeal, according to which the visual and conceptual differences between the signs at issue counteract their phonetic similarity, constitutes a finding of fact which is outside the jurisdiction of the Court of Justice to review on appeal. Indeed, it is clear from the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see BioID  v OHIM , paragraph 43, and the case‑law there cited).