Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Article 8(5) — Word mark GOLDEN BALLS — Opposition by the proprietor of the earlier Community word mark BALLON D’OR — Relevant public — Similarity of the signs — Likelihood of confusion.
Date: 2014-11-20
38. As regards the distortion of the facts alleged by Intra-Presse, it should be borne in mind that, under 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 is to be limited to points of law. 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 do not, save where the facts or evidence are distorted, constitute points of law open, as such, to review by the Court of Justice on appeal (see, inter alia, the judgments in DKV  v OHIM , C‑104/00 P, EU:C:2002:506, paragraph 22, and Storck  v OHIM , C‑25/05 P, EU:C:2006:422, paragraph 40).
39. It should also be recalled that such distortion must be obvious from the documents before the Court, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, the judgments in Les Éditions Albert René  v OHIM , C‑16/06 P, EU:C:2008:739, paragraph 69, and Waterford Wedgwood  v Assembled Investments (Proprietary) and OHIM , C‑398/07 P, EU:C:2009:288, paragraph 41).
48. In that regard, it should be borne in mind that, under Article 8(1)(b) of Regulation No 40/94, where the earlier mark relied on in support of opposition proceedings is a Community trade mark, the trade mark in respect of which registration is sought is not to be registered if, because it is identical or similar to that earlier trade mark and the goods or services covered by those marks are identical or similar, there is a likelihood of confusion on the part of the public in the European Union (see to that effect, inter alia, the judgment in Armacell  v OHIM , C‑514/06 P, EU:C:2008:511, paragraph 55).
53. As regards the failure to state reasons alleged by OHIM in respect of the General Court’s finding concerning the perception of the relevant public — other than the francophone public — of the two signs at issue, it should be borne in mind that, according to the settled case-law of the Court, the duty incumbent upon the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds on which the General Court has based its findings and provides the Court of Justice with sufficient material for it to exercise its appellate jurisdiction (see, inter alia, the judgment in Isdin  v OHIM and Bial-Portela , C‑597/12 P, EU:C:2013:672, paragraph 21).
62. The Court has held that findings relating to the characteristics of the relevant public and to its degree of attention, perception or attitude represent appraisals of fact (see, inter alia, the order in Shah  v Three-N-Products Private , C‑14/12 P, EU:C:2013:349, paragraph 28 and the case-law cited) and that the same is true as regards the relevant public’s understanding of the meanings of different languages (see the order in adp Gauselmann v OHIM , C‑532/10 P, EU:C:2011:433, paragraph 51).
72. The Court has consistently held that the degree of similarity required under Article 8(1)(b) of Regulation No 40/94, on the one hand, and Article 8(5) of that regulation, on the other, is different. Whereas the implementation of the protection provided for under Article 8(1)(b) of Regulation No 40/94 is conditional upon a finding of a degree of similarity between the marks at issue so that there exists a likelihood of confusion between them on the part of the relevant section of the public, the existence of such a likelihood is not necessary for the protection conferred by Article 8(5) of that regulation. Accordingly, the types of injury referred to in Article 8(5) of Regulation No 40/94 may be the consequence of a lesser degree of similarity between the earlier and the later marks, provided that it is sufficient for the relevant section of the public to make a connection between those marks, that is to say, to establish a link between them (see judgment in Ferrero  v OHMI , C‑552/09 P, EU:C:2011:177, paragraph 53 and the case-law cited).
73. According to the same case-law, Article 8(5) of Regulation No 40/94, like Article 8(1)(b), is manifestly inapplicable where the General Court rules out any similarity between the marks at issue. It is only if there is some similarity, even faint, between the marks at issue that the General Court must carry out an overall assessment in order to ascertain whether, notwithstanding the low degree of similarity between them, there is, on account of the presence of other relevant factors such as the reputation or recognition enjoyed by the earlier mark, a likelihood of confusion or a link made between those marks by the relevant public ( Ferrero  v OHIM , EU:C:2011:177, paragraph 66).
83. In that respect, it should be noted that, under Article 62(1) of Regulation No 40/94, by virtue of the appeal brought before it, the Board of Appeal is called upon to carry out a new, full examination of the merits of the opposition, in terms both of law and of fact ( OHIM  v Kaul , C‑29/05 P, EU:C:2007:162, paragraph 57).
84. In the present cases, that obligation to examine the merits of the appeal must be understood as meaning that the Board of Appeal was obliged to decide on each of the heads of claim submitted for its consideration in order to give a decision on the oppositions by either rejecting them or declaring them to be founded, thereby either upholding or reversing the decisions of the Opposition Division contested before it (see, to that effect, OHIM  v Kaul , EU:C:2007:162, paragraph 56).