Przedsiębiorstwo Produkcyjno-Handlowe „Primart” Marek Łukasiewicz v European Union Intellectual Property Office.
Date: 2020-06-18
2


Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) was amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21), which entered into force on 23 March 2016. Regulation No 207/2009, as amended by Regulation 2015/2424, was repealed and replaced, with effect from 1 October 2017, by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1). Nonetheless, given the date on which the application for registration at issue was filed, namely 27 January 2015, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009, in its original version (see, to that effect, judgment of 4 July 2019, FTI Touristik v EUIPO, C‑99/18 P, EU:C:2019:565, paragraph 2).
49


In the first place, EUIPO contends that, even if the General Court had declared the arguments relating to the weak distinctive character of the earlier mark admissible and well founded, that circumstance would not have affected the conclusion reached in the judgment under appeal regarding the likelihood of confusion. A likelihood of confusion cannot be precluded where the distinctive character of the earlier mark is weak (see, to that effect, judgment of 26 July 2017, Continental Reifen Deutschland v Compagnie générale des établissements Michelin, C‑84/16 P, not published, EU:C:2017:596, paragraph 99 and the case-law cited).
51


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 (judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 22; of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 34; and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 33), and the distinctive character of an earlier mark is one of those relevant factors (see, to that effect, judgment of 26 July 2017, Continental Reifen Deutschland v Compagnie générale des établissements Michelin, C‑84/16 P, not published, EU:C:2017:596, paragraph 98 and the case-law cited).
53


Moreover, it should be borne in mind that, where the earlier trade mark and the sign whose registration is sought coincide in an element that is weakly distinctive with regard to the goods at issue, the global assessment of the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 does not often lead to a finding that such likelihood exists (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 55).
54


The conclusion that the General Court made an error of law in its assessment of the likelihood of confusion between the mark applied for and the earlier mark is not contrary, either, as the Advocate General observed in points 82 and 83 of his Opinion, to the principle of judicial economy, which states that, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded for other legal reasons, the appeal must be dismissed (judgment of 24 January 2018, EUIPO v European Food, C‑634/16 P, EU:C:2018:30, paragraph 33 and the case-law cited).
55


As is apparent from paragraph 51 of this judgment, the global assessment of the likelihood of confusion must take into account all factors relevant to the circumstances of the case, including the distinctive character of the earlier mark. In that regard, it follows from the Court’s case-law that a finding that there is no such likelihood of confusion cannot, because of the interdependence of the relevant factors in that regard, be ruled out in advance and in any event (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 55).
59


However, as the Advocate General observed in points 92 and 93 of his Opinion, even assuming that, in paragraphs 91 and 92 of the judgment under appeal, the General Court, for the sake of completeness, examined the arguments put forward by the appellant and rejected them as unfounded, it should be noted at the outset that the Court’s reasoning was inadequate and that inadequate reasoning is a matter of public policy (see, to that effect, judgment of 20 December 2017, EUIPO v European Dynamics Luxembourg and Others, C‑677/15 P, EU:C:2017:998, paragraph 36 and the case-law cited).
61


In addition, while it is true, as contended by Bolton Cile España, that the General Court’s reasoning may be implicit, that reasoning must nonetheless enable the persons concerned to know why the General Court has not upheld their arguments and provide the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, judgment of 28 February 2019, Groupe Léa Nature v EUIPO, C‑505/17 P, not published, EU:C:2019:157, paragraph 55). However, that is not the case here, as is apparent from paragraph 60 of this judgment.