Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v European Union Intellectual Property Office.
Date: 2020-03-05
35


Nevertheless, it should be noted that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his or her involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgments of 22 June 2017, Federatie Nederlandse Vakvereniging and Others, C‑126/16, EU:C:2017:489, paragraph 31, and of 13 November 2019, College Pension Plan of British Columbia, C‑641/17, EU:C:2019:960, paragraph 39).
36


It should also be recalled that the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for the submission of observations in response to the Advocate General’s Opinion. Disagreement with the Advocate General’s Opinion cannot therefore in itself constitute grounds justifying the reopening of the oral procedure (judgments of 25 October 2017, Polbud — Wykonawstwo, C‑106/16, EU:C:2017:804, paragraphs 23 and 24, and of 13 November 2019, College Pension Plan of British Columbia, C‑641/17, EU:C:2019:960, paragraph 40).
50


The appellant submits that the General Court furthermore misinterpreted the fundamental rules, laid down by the case-law of the Court of Justice, concerning Article 8(1)(b) of Regulation No 207/2009, as regards the global assessment of the likelihood of confusion. The appellant refers, in that regard, to the judgment of 8 November 2016, BSH v EUIPO (C‑43/15 P, EU:C:2016:837), in particular paragraphs 61 to 64 thereof, in which the Court reiterated those rules, emphasising in particular that, even in a case involving an earlier mark with weak distinctiveness, there may be a likelihood of confusion because of a similarity of the marks at issue and the goods or services concerned.
59


Under that provision, which is, in the absence of any provision to the contrary in Articles 67 to 74 of Regulation No 207/2009, applicable to EU collective marks pursuant to Article 66(3) of that regulation (judgment of 20 September 2017, The Tea Board v EUIPO, C‑673/15 P to C‑676/15 P, EU:C:2017:702, paragraph 46), 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 mark applied for and the earlier mark, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.
61


The appellant submits, however, by the first to third grounds of its appeal, that the General Court failed correctly to apply the criteria in the light of which the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 is to be assessed. Those grounds thus relate to the legal principles applicable to the assessment of the likelihood of confusion between the marks at issue, a matter which constitutes a point of law that may be placed before the Court of Justice on appeal (judgment of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 52 and the case-law cited).
63


When considering cases concerning opposition proceedings based on earlier individual marks, the Court has repeatedly held that the likelihood of confusion must be understood as the risk that the public might believe that the goods or services covered by the earlier mark and those covered by the mark applied for come from the same undertaking or, as the case may be, from economically linked undertakings (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 33; of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 19; and of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 40).
64


However, where, as in the present case, the earlier mark is a collective mark, the essential function of which is, pursuant to Article 66(1) of Regulation No 207/2009, to distinguish the goods or services of the members of the association which is the proprietor from those of other undertakings (judgments of 20 September 2017, The Tea Board v EUIPO, C‑673/15 P to C‑676/15 P, EU:C:2017:702, paragraph 63, and of 12 December 2019, Der Grüne Punkt v EUIPO, C‑143/19 P, EU:C:2019:1076, paragraph 52), the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, must be understood as being the risk that the public might believe that the goods or services covered by the earlier trade mark and those covered by the trade mark applied for all originate from members of the association which is the proprietor of the earlier trade mark or, where appropriate, from undertakings economically linked to those members or to that association.
67


According to that case-law, the likelihood of confusion must be assessed globally, taking into account all factors relevant to the circumstances of the case (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 34; of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 44; and of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 20).
68


As regards the visual, phonetic or conceptual similarity of the marks at issue, that assessment must be based on the overall impression which they convey to the relevant public (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35; of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 45; and of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 21).
69


Furthermore, that global assessment implies some interdependence between the relevant factors, in particular between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the trade marks, and vice versa (judgments of 18 December 2008, Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 46, and of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 43).
70


It is also settled case-law that the degree of distinctiveness of the earlier mark, which determines the extent of the protection conferred by it, is one of the relevant factors in the case in point. Where the distinctiveness of the earlier mark is significant, such a circumstance is likely to increase the likelihood of confusion. That being so, the existence of a likelihood of confusion is not precluded where the distinctiveness of the earlier mark is weak (see, to that effect, judgments of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraphs 61 and 62, and of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraphs 42 and 44).
76


Furthermore, contrary to the appellant’s claim, it does not appear that the General Court, in making that assessment, ‘deprecated’ the distinctiveness of the earlier mark HALLOUMI or that it relied on a premiss of weak distinctiveness which it was for the appellant to rebut. On the contrary, it is apparent from paragraphs 42 and 70 of the judgment under appeal that the General Court objectively found, as did the Board of Appeal after analysing the evidence adduced by the appellant, that the term ‘halloumi’, the sole element of which that earlier mark consists, designates a particular type of cheese produced according to a special recipe and that the distinctiveness of such a mark, which is restricted to designating a type of product, is weak. That assessment of the degree of distinctiveness of the earlier mark cannot, in the absence of a specific complaint based on a manifest distortion of the evidence, be challenged before the Court of Justice (see, to that effect, judgment of 20 September 2017, The Tea Board v EUIPO, C‑673/15 P to C‑676/15 P, EU:C:2017:702, paragraph 41).
77


Nor did the General Court misinterpret the scope of the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314). In paragraphs 41 to 47 of that judgment, the Court stated that, when examining an opposition based on a national trade mark, it is necessary to acknowledge that that mark has ‘a certain degree of distinctiveness’. Irrespective of whether that case-law can be applied to the present case, it is in any event apparent from the judgment under appeal that the General Court, having found the mark HALLOUMI to be of weak distinctive character, acknowledged that that mark had ‘a certain degree of distinctiveness’ and therefore did not misinterpret that judgment of the Court of Justice.