Calvin Klein Trademark Trust v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).
Date: 2010-09-02
44. According to the settled case-law of the Court, the existence of 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, inter alia, Case C-251/ 95 SABEL  [1997] ECR I‑6191, paragraph 22; Case C‑342/97 Lloyd Schuhfabrik Meyer  [1999] ECR I‑3819, paragraph 18; Case C‑120/04 Medion  [2005] ECR I‑8551, paragraph 27; Case C‑334/05 P OHIM  v Shaker  [2007] ECR I‑4529, paragraph 34; and Case C‑498/07 P Aceites del Sur-Coosur  v Koipe  [2009] ECR I‑0000, paragraph 46).
45. It is also apparent from settled case-law that 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. 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, inter alia, SABEL , paragraph 23; Lloyd Schuhfabrik Meyer , paragraph 25; Medion , paragraph 28; OHIM  v Shaker , paragraph 35; and Case C‑206/04 P Mülhens  v OHIM [2006] ECR I‑2717, paragraph 19).
49. As regards the second part of that ground of appeal, alleging distortion of the facts, it should be noted at the outset that, under Article 225(1) EC and the first subparagraph of Article 58 of the Statute of the Court of Justice, an appeal lies on a point of law only. The General Court 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 does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Case C‑104/00 P DKV  v OHIM  [2002] ECR I‑7561, paragraph 22; Case C‑173/04 P Deutsche SiSi-Werke  v OHIM  [2006] ECR I‑551, paragraph 35; and the judgment of 26 March 2009 in Case C‑21/08 P Sunplus Technology  v OHIM , paragraph 31).
50. The assessment of the similarities between the signs at issue is of a factual nature and, save where the evidence and facts are distorted, is not subject to review by the Court of Justice. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see Case C‑8/95 P New Holland Ford  v C ommission  [1998] ECR I‑3175, paragraph 72; Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 54; Case C‑167/04 P JCB Service  v Commission  [2006] ECR I‑8935, paragraph 108; and the judgment of 7 May 2009 in Case C‑398/07 P Waterford Wedgwood v Assembled Investments (Proprietary) and OHIM , paragraph 41).
53. As regards the third part of the first ground of appeal, it should be noted, first, that, where there is no similarity between the earlier mark and the mark applied for, the reputation of or the well-known nature attaching to the earlier mark and the fact that the goods or services concerned are identical or similar are not sufficient for it to be found that there is a likelihood of confusion between the marks at issue (see, to that effect, Case C-106/03 P Vedial v OHIM  [2004] ECR I‑9573, paragraph 54; Case C‑234/06 P Il Ponte Finanziaria v OHIM  [2007] ECR I‑7333, paragraphs 50 and 51; and the judgment of 11 December 2008 in Case C‑57/08 P Gateway v OHIM , paragraphs 55 and 56).
56. It must be observed in that connection that, contrary to what appears to be stated at paragraph 39 of the judgment under appeal, the existence of a similarity between two marks does not presuppose that their common component forms the dominant element within the overall impression created by the mark applied for. According to established case-law, in order to assess the similarity of two marks, it is necessary to consider each of the marks as a whole, although that does not rule out the possibility that 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 (see OHIM  v Shaker , paragraphs 41 and 42; the judgment of 20 September 2007 in Case C‑193/06 P Nestlé  v OHIM , paragraphs 42 and 43; and Aceites del Sur-Coosur v Koipe , pargraph 62). In that connection, it is sufficient for the common component not to be negligible.
68. It should be noted that, in order for Article 8(5) of Regulation No 40/94 to be applicable, the marks at issue must be identical or similar. Consequently, that provision is manifestly inapplicable where, as in the present case, the General Court ruled out any similarity between the marks at issue.