The Sunrider Corporation v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM).

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2015:371
• Court: Court of Justice (European Union)
• Docket Number: C-142/14
• Date: 03 June 2015
• Procedure Type: Recurso de casación - inadmisible
• Celex Number: 62014CO0142

ORDER OF THE COURT (Ninth Chamber)

3 June 2015 (*)

(Appeal — Community trade mark — Opposition proceedings — Application for registration of word mark SUN FRESH — Opposition by the proprietor of the earlier Community word mark SUNNY FRESH — Likelihood of confusion — Similarity of the goods covered by the marks at issue — Right to be heard — Regulation (EC) No 207/2009 — Articles 8(1)(b), 75 and 76)

In Case C‑142/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 March 2014,

The Sunrider Corporation, established in Torrance (United States), represented by N. Dontas and E. Markakis, dikigoroi,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,

defendant at first instance,

Nannerl GmbH & Co. KG, established in Anthering bei Salzburg (Austria), represented by A. Thünken, Rechtsanwalt,

intervener at first instance,

THE COURT (Ninth Chamber),

composed of K. Jürimäe, President of the Chamber, J. Malenovský and A. Prechal (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure,

makes the following

Order

1 By its appeal, The Sunrider Corporation (‘Sunrider’) seeks to have set aside the judgment of the General Court of the European Union in Sunrider v OHIM — Nannerl (SUN FRESH) (T‑221/12, EU:T:2014:25; ‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 March 2012 (Case R 2401/2010-4), relating to opposition proceedings between Sunrider and Nannerl GmbH & Co. KG (‘the decision at issue’).

Legal context

2 Article 8 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which is entitled ‘Relative grounds for refusal’, provides in paragraph 1:

‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b) 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.’

3 Article 75 of that regulation, which is entitled ‘Statement of reasons on which decisions are based’, provides as follows:

‘Decisions of the Office shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.’

4 Article 76 of Regulation No 207/2009, which is entitled ‘Examination of the facts by the Office of its own motion’, provides in paragraph 1:

‘In proceedings before it the Office shall examine the facts of its own motion; however, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.’

5 Under point 2 of Article 1 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67), as amended by Directive 2004/27/EC of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 136, p. 34), (‘Directive 2001/83’), ‘medicinal product’ means:

‘(a) Any substance or combination of substances presented as having properties for treating or preventing disease in human beings; or

(b) Any substance or combination of substances which may be used in or administered to human beings either with a view to restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, or to making a medical diagnosis.’

6 Article 2 of Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1) states:

‘The definitions laid down in Article 1 of Directive 2001/83 … shall apply for the purposes of this Regulation.’

Background to the dispute

7 On 6 August 2007, Nannerl GmbH & Co. KG (‘Nannerl’) filed an application with OHIM for the registration as a Community trade mark of the word sign ‘SUN FRESH’.

8 The goods in respect of which that registration was sought are in Class 32 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 (‘the Nice Agreement’), and correspond to the following description: ‘beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’.

9 On 6 March 2008, Sunrider filed a notice of opposition to registration of the mark applied for. That opposition was based on the existence of five earlier trade marks, including the Community word mark SUNNY FRESH, registered in respect of goods in Class 5 of the Nice Agreement, and corresponding to the following description: ‘herbal nutritional supplements’.

10 By a decision of 6 October 2010, the Opposition Division of OHIM upheld the opposition and rejected the application for registration of the mark applied for.

11 On 3 December 2010, Nannerl filed a notice of appeal against that decision.

12 By the decision at issue, the Fourth Board of Appeal of OHIM (‘the Board of Appeal’) upheld that appeal, annulled the decision at issue and rejected the opposition filed by Sunrider. The Board of Appeal concluded that there was no likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, because of the differences between the goods in respect of which the earlier Community mark SUNNY FRESH had been registered and those in respect of which registration of the sign ‘SUN FRESH’ as a Community trade mark had been applied for.

The procedure before the General Court and the judgment under appeal

13 By application lodged at the Registry of the General Court on 25 May 2012, Sunrider brought an action for annulment of the decision at issue in which it relied on three pleas in law, of which only the second and third are relevant for the purposes of the present appeal.

14 The second plea in law was based on an infringement of the second sentence of Article 75 and the second part of Article 76(1) of Regulation No 207/2009 and, by the third plea in law, Sunrider invoked an infringement of Article 8(1)(b) of that regulation.

15 In examining those second and third pleas in law together, the General Court first of all recalled, in paragraphs 57 to 62 of the judgment under appeal, the rules and principles governing the assessment of the likelihood of confusion for the purposes of Article 8(1)(b) of Regulation No 207/2009, and, in particular, those relating to the examination of the similarity of the goods covered by the marks at issue.

16 Moreover, in paragraph 63 of the judgment under appeal, the General Court held that the Board of Appeal was fully entitled to find that, since the goods are aimed at the general public, the relevant public for the purposes of the assessment of the likelihood of confusion in relation to those goods consisted of average consumers in all EU Member States.

17 In paragraph 64 of that judgment, the General Court stated that, as regards the goods in Class 32 of the Nice Agreement, the relevant public is reasonably well informed and reasonably observant and circumspect, whereas in the case of ‘nutritional supplements for medical use in the broad sense of the term’ included in Class 5 of that agreement, it had to be held that the relevant public displays a relatively high level of attention, in so far as those goods affect their health.

18 In paragraph 65 of that judgment, the General Court noted that, in paragraph 25 of the decision at issue, the Board of Appeal had found that the goods to be compared were, on the one hand, ‘beers, mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and others preparations for making beverages’ in Class 32 of the Nice Agreement and, on the other, ‘herbal nutritional supplements’ in Class 5 of that agreement.

19 Next, in paragraphs 67 and 68 of the judgment under appeal, the General Court observed that, by its various arguments, Sunrider was contesting the Board of Appeal’s finding, set out in paragraphs 27 to 36 of the decision at issue, that the goods at issue were different in their purpose, their usual producers, their sales outlets and their end-users, and as a result of the fact that they were neither complementary nor in competition with each other.

20 In this connection, the General Court dismissed, in the first place, in paragraphs 69 to 73 of the judgment under appeal, the arguments that the goods covered by the marks at issue ought to be regarded as similar because of their nature, purpose and function.

21 In that regard, the General Court found that the main purpose of the herbal nutritional supplements covered by the mark SUNNY FRESH in Class 5 of the Nice Agreement is to prevent or remedy medical problems in the broad sense of the term or to balance nutritional deficiencies, whereas the ‘beverages’ or ‘preparations for making beverages’ in Class 32 of that agreement are consumed mainly to quench...