Judgments nº T-491/18 of Tribunal General de la Unión Europea, October 03, 2019

Resolution DateOctober 03, 2019
Issuing OrganizationTribunal General de la Unión Europea
Decision NumberT-491/18

(EU trade mark - Opposition proceedings - Application for the EU word mark Meatlove - Earlier EU word mark carnilove - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

In Case T-491/18,

Vafo Praha s.r.o., established in Chrášt’any (Czech Republic), represented by M. Vojáček, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by S. Bonne and H. O’Neill, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Susanne Rutzinger-Kurpas, residing in Spiegelau (Germany), represented by F. Lichtnecker, lawyer,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 12 June 2018 (Case R 264/2018-4), relating to opposition proceedings between Vafo Praha and Ms Rutzinger-Kurpas,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen, President, V. Kreuschitz (Rapporteur) and N. Półtorak, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 14 August 2018,

having regard to the response of EUIPO lodged at the Court Registry on 31 October 2018,

having regard to the response of the intervener lodged at the Court Registry on 25 October 2018,

having regard to the fact that no request for a hearing was submitted by the parties within 3 weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

Background to the dispute

1 On 17 June 2016, the intervener, Ms Susanne Rutzinger-Kurpas, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced 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)).

2 Registration as a mark was sought for the word sign Meatlove.

3 The goods and services in respect of which registration was sought are in Classes 31 and 35 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to, inter alia, the following description:

- Class 31: ‘Foodstuffs and fodder for animals’;

- Class 35: ‘Retail services in relation to fodder for animals; retail services in relation to dietary supplements; wholesale services in relation to dietary supplements; wholesale services in relation to fodder for animals’.

4 The trade mark application was published in European Union Trade Marks Bulletin No 130/2016 of 14 July 2016.

5 On 11 October 2016, the applicant, Vafo Praha s.r.o., filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

6 The opposition was based on the earlier EU word mark carnilove, which covers, inter alia, goods in Classes 5 and 31 corresponding, for each of those classes, to the following description:

- Class 5: ‘Vitamin and mineral supplements for pets’;

- Class 31: ‘Dry, semi-moist, wet complete and complementary pet food; pet treats’.

7 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

8 On 20 December 2017, the Opposition Division upheld the opposition because it found, inter alia, that the signs at issue were visually and phonetically similar to an average degree and were conceptually identical.

9 On 6 February 2018, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the Opposition Division’s decision.

10 By decision of 12 June 2018 (‘the contested decision’), the Fourth Board of Appeal of EUIPO annulled the Opposition Division’s decision and rejected the opposition in its entirety. In particular, it found, first, that the goods and services at issue were aimed mainly at the general public, in the present case animal owners, but also at those for whom raising livestock constituted a business, although the wholesale services were aimed at the professional public consisting of tradespeople, secondly, that the relevant public’s level of attention varied from average to high, thirdly, that the relevant public was that in the European Union (paragraph 11 of the contested decision), fourthly, that the goods at issue were identical (paragraph 15 of the contested decision), fifthly, that the services in Class 35 covered by the mark applied for were similar to an average degree to the goods covered by the earlier mark (paragraphs 16 and 17 of the contested decision), sixthly, that the signs at issue were visually and phonetically similar only to a low degree and that it was not possible to compare them conceptually (paragraphs 22 to 24 of the contested decision) and, seventhly and consequently, that, overall, in the light, in particular, of the lack of distinctiveness of the word element in common, ‘love’, there was no likelihood of confusion between the marks at issue (paragraphs 29 and 30 of the contested decision).

Forms of order sought

11 The applicant claims that the Court should:

- annul the contested decision;

- order EUIPO to pay the costs.

12 EUIPO contends that the Court should:

- dismiss the action;

- order the applicant to pay the costs incurred by EUIPO.

13 The intervener contends that the Court should:

- uphold the contested decision;

- order the applicant to pay the costs (including those incurred by the intervener); in the alternative, if the Court annuls the contested decision, order EUIPO to pay the costs (including those incurred by the intervener).

Law

14 In support of its action, the applicant relies on a single plea in law, alleging, in essence, infringement of Article 8(1)(b) of Regulation No 207/2009. It submits that the Board of Appeal’s assessment as to whether the signs at issue were similar is vitiated by errors and that, consequently, the Board of Appeal erred in denying that there was a likelihood of confusion between the marks at issue.

15 EUIPO and the intervener dispute the applicant’s arguments. They maintain that the Board of Appeal correctly assessed whether the signs at issue were similar and that it therefore correctly found that there was no likelihood of confusion between the marks at issue.

16 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not 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 trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

17 According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM - Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T-162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

18 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM - easyGroup IP Licensing (easyHotel), T-316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

19 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services in question in that territory. However, as the applicant has stated, it must be borne in mind that...

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