Seven for all mankind LLC v Seven SpA.
Date: 2013-02-21
51. Therefore, the procedural irregularity alleged by SAM cannot lead to the setting aside of the judgment under appeal, as it is not established that, in the absence of that alleged irregularity, that judgment might have reached a different conclusion (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission  [1980] ECR 3125, paragraph 47; Case C‑142/87 Belgium v Commission  [1990] ECR I‑959, paragraph 48, and Case C‑447/02 P KWS Saat v OHIM  [2004] ECR I‑10107, paragraphs 47 to 50).
70. 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 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).
71. The Court has also held 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 appreciation of that likelihood of confusion. The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see Case C‑120/04 Medion  [2005] ECR I‑8551, paragraph 28; Case C‑206/04 P Mülhens v OHIM  [2006] ECR I‑2717, paragraph 19, and OHIM v Shaker , paragraph 35).
72. 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 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, which does not mean that the overall impression conveyed to the relevant public by a composite trade 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).
79. However, it follows from 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 that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑551/03 P General Motors v Commission  [2006] ECR I‑3173, paragraph 51, and Case C‑352/09 P ThyssenKrupp Nirosta v Commission  [2011] ECR I‑0000, paragraph 179).
80. The Court has also stated that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission  [2006] ECR I‑4429, paragraph 85, and ThyssenKrupp Nirosta v Commission , paragraph 180).
85. In order to respond to that argument, the Court notes that the determination of distinctive character, or lack of distinctive character, of the various elements of a sign, their importance in the overall impression given by the sign as well as the finding of conceptual similarity in relation to another sign involves a weighing up of those criteria which entails an analysis of a factual nature (see, to that effect, Case C‑327/11 P United States Polo Association v OHIM  [2012] ECR I‑0000, paragraphs 59 and 61).
86. The Court has also held that the global assessment of that impression implies some interdependence between the factors taken into account (see, to that effect, judgment of 17 April 2008 in Case C‑108/07 P Ferrero Deutschland v OHIM (not published in the ECR), paragraph 45).