JUDGMENT OF THE GENERAL COURT (First Chamber)
12 July 2018 (*)
(EU trade mark — Invalidity proceedings — Figurative EU trade mark CAVE DE TAIN — Earlier designation of origin ‘CAVA’ — Concept of ‘evocation’ of a protected designation of origin — Article 103(2)(b) of Regulation (EU) No 1308/2013)
In Case T‑774/16,
Consejo Regulador del Cava, established in Villafranca del Penedès (Spain), represented by C. Prat, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Zaera Cuadrado and D. Walicka, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Cave de Tain L’Hermitage,union des propriétaires, established in Tain L’Hermitage (France), represented by J.-P. Stouls, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 5 September 2016 (Case R 980/2015-4), relating to invalidity proceedings between Consejo Regulador del Cava and Cave de Tain L’Hermitage, union des propriétaires,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 7 November 2016,
having regard to the response of EUIPO lodged at the Court Registry on 24 January 2017,
having regard to the response of the intervener lodged at the Court Registry on 20 January 2017,
further to the hearing on 13 March 2018,
gives the following
Judgment
Background to the dispute
1 On 14 November 2012 the intervener, Cave de Tain L’Hermitage, union des propriétaires, filed an application for registration of a European Union 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 following figurative mark:
3 The goods in respect of which registration was sought are in Class 33 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 to the following description: Class 33: ‘wines with a registered designation of origin; vin de pays’.
4 The EU trade mark application was published in Community Trade Marks Bulletin No 241/2012 of 19 December 2012, and on 22 May 2014 the corresponding trade mark was registered under number 11345824 for the goods referred to in paragraph 3 above.
5 On 3 June 2014 the applicant, Consejo Regulador del Cava, filed an application with EUIPO for a declaration that the contested mark was invalid, under Article 7(1)(j) of Regulation No 207/2009 (now Article 7(1)(j) of Regulation 2017/1001) and Article 52(1)(a) of that regulation (now Article 59(1)(a) of Regulation 2017/1001), read together with Article 118l and Article 118m of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).
6 In support of its application, the applicant claimed that the contested mark was an evocation of the protected designation of origin (PDO) ‘CAVA’ and that it should therefore be declared to be invalid.
7 By decision of 22 April 2015, the Cancellation Division found, first, that, since Regulation No 1234/2007 had been repealed by Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and No 1234/2007 (OJ 2013 L 347, p. 671) with effect from 1 January 2014, the case in question is governed by Regulation No 1308/2013 which, in Article 103(2)(b) thereof, refers to the misuse, imitation and evocation of a PDO. The Cancellation Division then analysed the case in the light of the conditions laid down in that article and rejected the application for a declaration of invalidity in its entirety. In that regard, the Cancellation Division found that, first, the visual differences between the signs at issue are significant; second, phonetically, those signs have in common only the syllable ‘ca’; third, the understanding of the word ‘cave’ as referring to a ‘wine cellar” is not limited to French‑speaking consumers, and fourth, in the absence of customer surveys or evidence to the contrary, the contested trade mark did not evoke the PDO ‘CAVA’.
8 On 20 May 2015 the applicant filed a notice of appeal against the decision of the Cancellation Division.
9 By decision of 5 September 2016 (‘the contested decision’) the Fourth Board of Appeal of EUIPO dismissed the appeal. The Board found that the relevant version of Article 7(1)(j) of Regulation No 207/2009 for consideration of the case was that in force when the contested mark was registered and when the application for a declaration of invalidity was filed, and not that resulting from the amendment made following the adoption of Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation No 207/2009 and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21), with effect from 23 March 2016. In essence, the Board considered, first, that the concept of ‘evocation’ of a PDO was to be analysed with regard to the function of a PDO, namely the protection of the geographical origin of a product with which specific qualities or characteristics are associated because of that origin; second, that ‘cava’ is both a descriptive term referring to sparkling wine from Spain and a dictionary Spanish word meaning ‘cave’ (‘cellar’) in French or ‘wine cellar’ in English, referring to the particular place where wineries keep their wine barrels; third, that the contested trade mark is a figurative mark which does not refer to the geographical origin of ‘cava’; fourth, that the only ‘geographical origin’ which the sign ‘CAVA’ might evoke is the Spanish origin, whereas the word ‘cave’ used in the contested trade mark cannot evoke a Spanish origin, but only a French origin, and that if non-French-speaking or non-Spanish-speaking consumers do not understand the meaning of the terms ‘cava’ or ‘cave’, there would be all the more a difference in the two conflicting signs and no link between them.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision in part in so far as it does not invalidate the contested trade mark with regard to ‘sparkling wines with a registered designation of origin’;
– order EUIPO to pay the costs.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
12 The intervener contends that the Court should:
– confirm the contested decision;
– dismiss the action;
– order the applicant to pay the costs.
Law
13 The action is based on a single plea in law, alleging an infringement of Article 52(1)(a) of Regulation No 207/2009, read in conjunction with Article 102(1)(b) and Article 103(2)(b) of Regulation No 1308/2013.
14 In the context of that plea, the applicant submits that the Board of Appeal did not correctly apply the concept of ‘evocation’ within the meaning of Article 103(2)(b) of Regulation No 1308/2013. The plea falls into two parts: (i) failure to take account of the essential function of a PDO and (ii) incorrect application of the case-law relating to the global assessment of the existence of an ‘evocation’.
Preliminary observations
15 It should be recalled that, under Article 52(1)(a) of Regulation No 207/2009, the registration of a European Union trade mark contrary to the provisions of Article 7 of the same regulation is an absolute ground for invalidity.
16 In accordance with Article 7(1)(j) of Regulation No 207/2009, in the version in force before 23 March 2016, registration is to be refused for trade marks for wines which contain or consist of a geographical indication identifying wines with respect to wines not having that origin.
17 It is apparent from the case-law that the concept of a geographical indication identifying wines, within the meaning of Article 7(1)(j) of Regulation No 207/2009, must be read in the light of the relevant provisions of EU law on determining and protecting geographical indications in relation to grapevine products. Consequently, as was correctly pointed out by the Board of Appeal in paragraph 17 of the contested decision, it is necessary to refer to the PDOs and protected geographical indications (PGIs) registered in accordance with Regulation No 1308/2013, the provisions of which are to be applied in the light of the international agreements concluded in accordance with the Treaty on the Functioning of the European Union, as is apparent from recital 91 of that regulation (see judgment of 9 February 2017, Bodegas Vega Sicilia v EUIPO (TEMPOS VEGA SICILIA), T‑696/15, not published, EU:T:2017:69, paragraph 17 and the case-law cited).
18 In the present case, it is not disputed that, as the Board of Appeal pointed out, in paragraph 25 of the contested decision, the name ‘CAVA’ has been protected as a PDO since 13 June 1986 in Spain, as reflected in the E‑Bacchus database, which consists of the register of PDOs and PGIs in the European Union pursuant to Regulation No 1308/2013. It is not disputed that, as the Board of Appeal pointed out, in paragraph 28 of the contested decision, in the Spanish regulation governing the ‘CAVA’ name and its Consejo Regulador (regulatory board), Article 2 thereof states that the name is reserved for sparkling wines which meet the requirements laid down in that regulation.
19 Article 102(1) of Regulation No 1308/2013 governs the relationship between PDOs and trade marks as follows:
‘The registration of a trade mark that contains or consists of a [PDO] or a [PGI] which does not comply with the product specification concerned or the use of which falls under Article 103(2), and that relates to a product falling under one of the categories listed in Part II of Annex VII shall be:
(a) refused if the application for registration of the trade mark is submitted after the date of submission of the application for protection of the designation of origin or geographical indication to the Commission and the designation of origin or geographical indication is subsequently protected; or
(b) invalidated.’
20 Article 103(2) of Regulation No 1308/2013 is worded as follows:
‘A [PDO] and a [PGI], as well as the wine using that protected name in conformity with the product specifications, shall be protected against:
…
(b) any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated, [transcribed] or transliterated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation”, “flavour”, “like” or similar’.
21 According to the case-law, the concept of evocation covers a situation where the term used to designate the product incorporates a protected designation or part of a protected designation, so that when the consumer is confronted with the name of the product, the image triggered in his mind is that of the product whose designation is protected (judgment of 14 September 2017, EUIPO v Instituto dos Vinhos do Douro e do Porto, C‑56/16 P, EU:C:2017:693, paragraph 122 and the case-law cited).
The first part of the single plea: disregard of the essential function of a PDO
22 In the first part of its single plea in law, the applicant submits that the Board of Appeal erred by disregarding the essential function of a PDO, by failing to take into account, in the contested decision, the existence of specific qualities or characteristics that consumers associate with the products protected by the PDO ‘CAVA’, even when they do not identify the geographical origin of those products.
23 That position is contested by EUIPO and the intervener.
24 In that regard, suffice it to note that the applicant confines itself to pleading an error allegedly committed by the Board of Appeal but fails to identify the grounds of the contested decision in which the error was committed or to explain how those grounds are erroneous.
25 In any event, in the contested decision, the Board of Appeal has given to the concept of a PDO a content that is in conformity with the legislation.
26 According to recital 92 of Regulation No 1308/2013, the protection conferred on a PDO must be interpreted in the light of the objective pursued, namely the identification of wines with specific characteristics attributable to their geographical origin.
27 Article 93(1)(a) of that regulation defines a PDO as follows:
‘… the name of a region, a specific place or, in exceptional and duly justifiable cases, a country used to describe a product referred to in Article 92(1) fulfilling the following requirements:
(i) the quality and characteristics of the product are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors;
(ii) the grapes from which the product is produced come exclusively from that geographical area;
(iii) its production takes place in that geographical area;
(iv) the product is obtained from vine varieties belonging to Vitis vinifera;’
28 It follows that the specific qualities and characteristics associated with the protected products are inevitably and inseparably linked to a specific geographical origin.
29 The Board of Appeal was therefore fully entitled to state, in paragraph 22 of the contested decision, that PDOs protect products by establishing a link between those products and a territory, region or locality on the basis of a specific quality, reputation or other characteristics linked to that geographical origin.
30 That conclusion is not affected by the applicant’s arguments alleging, first, that there are PDOs that do not contain a name referring to a particular geographical area; second, that, in some cases, consumers do not identify the products protected by a PDO on the basis of their origin, but on the basis of their qualities or their special characteristics, and, third, that the case-law gives as much weight to the qualities or particular characteristics of the goods protected by the PDO as to their geographical origin, or even greater weight.
31 As regards the first argument, suffice it to state that, contrary to what the applicant seems to be arguing, the PDO ‘CAVA’ is a name which refers to a geographical area which consists of several non-contiguous provinces within Spain which form, under the rules on PDOs, a whole possessed of a unity which gives the goods coming from those provinces an identity based both on a particular geographical environment and on qualities or characteristics which are unique to the area.
32 In the contested decision, the Board of Appeal found that the PDO ‘CAVA’ referred to the geographical area covered by that name, and consequently the applicant’s first argument has no basis in fact.
33 Concerning the second argument, it is to be noted that a PDO is defined by the EU legislature on the basis of, on the one hand, the geographical origin of the product and, on the other, the quality or characteristics that are associated with that geographical origin, as has been stated in paragraphs 26 to 28 above, and no account is taken of the attitude that the consumers or some of them may have to the goods concerned.
34 Finally, as regards the third argument, it should be noted that the judgment of 29 March 2011, Anheuser-Busch v Budějovický Budvar (C‑96/09 P, EU:C:2011:189), to which the applicant refers, does not concern the qualities or specific characteristics of the products protected by a PDO, but the arrangements for assessing the use ‘in the course of trade’ of a geographical indication for the purposes of the relative grounds for refusal provided for in Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001).
35 In paragraph 147 of that judgment, the Court stated that the ‘essential function’ of the geographical indication was ‘to guarantee to consumers the geographical origin of goods and the special qualities inherent to them’, which does not alter the fact, however, that a PDO identifies a product on the basis of a specific geographical origin, where particular qualities or characteristics are attributable to that origin.
36 In the light of the foregoing, it must be concluded that, contrary to the applicant’s submissions, the Board of Appeal did not disregard the essential function of a PDO in the contested decision. Consequently, it is necessary to reject the first part of the single plea put forward by the applicant.
The second part of the single plea: misapplication of the case-law on the global assessment of whether there is an ‘evocation’
37 In the second part of its single plea, the appellant challenges the alleged misapplication by the Board of Appeal in the contested decision of the case-law on the global assessment of the existence of an ‘evocation’. This part consists of three grounds of objection: (i) a failure to undertake a global assessment of the existence of an ‘evocation’; (ii) an omission to attach an image to the product protected by the PDO ‘CAVA’, and (iii) a failure to take account of certain factors when assessing the existence of an ‘evocation’.
The first ground of objection: no global assessment of the existence of an ‘evocation’
38 By the first ground of objection, the applicant submits that there is a visual and aural similarity between the contested mark and the PDO ‘CAVA’, which makes possible, and even implies, the existence of an ‘evocation’ of the latter by the former.
39 That position is contested by EUIPO and the intervener.
40 As a preliminary point, it should be recalled that the system of registration of geographical indications of grapevine products, laid down by Regulation No 1308/2013, takes into account, in particular, as recalled in recital 108 and Article 92(2)(a) of that regulation, the legitimate interests of consumers.
41 It is apparent from now established case-law relating to consumer protection, that, in general, it is necessary in that field to take account of the presumed expectation of the average consumer, who is reasonably well informed and reasonably observant and circumspect (see, by analogy, judgment of 21 January 2016, Viiniverla, C‑75/15, EU:C:2016:35, paragraph 25 and the case-law cited).
42 It should also be borne in mind that decisions adopted under Article 99 of Regulation No 1308/2013 protect designations of origin and geographical indications referred to therein against any ‘evocation’ throughout the territory of the European Union. In the light of the need to guarantee effective and uniform protection of those geographic indications in that territory, it is clear that the concept of ‘consumer’, referred to in the case-law cited in paragraph 21 above, covers European consumers and not merely consumers of the Member State in which the product giving rise to the evocation of the protected designation of origin or the protected geographical indication is manufactured (see, by analogy, judgment of 21 January 2016, Viiniverla, C‑75/15, EU:C:2016:35, paragraph 27).
43 In the present case, it is therefore necessary to assess to what extent the contested mark used for designating ‘wines with a registered designation of origin’ and ‘vin de pays’ is capable of evoking the PDO ‘CAVA’ in the mind of the average European consumer, having regard to the similarities, if any, between the signs at issue, visually, phonetically and conceptually.
44 Visually, it should be noted that, as the Board of Appeal pointed out, the signs at issue have three letters in common, but that similarity is largely offset by the particular features of the contested mark.
45 First, the contested mark contains a figurative element, consisting of a relatively large coat of arms represented in bright colours in the upper part of the mark.
46 Second, the word element of the contested mark is made up of three words ‘cave’, ‘de’ and ‘tain’ in a specific font and form and presented in capital letters (the size of the word ‘cave’ and ‘tain’ being greater than that of the word ‘de’, whereas the PDO ‘CAVA’ comprises a single word).
47 Where a sign consists of both figurative and word elements, it does not automatically follow that the word element is always dominant, since the figurative elements may rank equally with the word elements when they contribute to the distinctive character of the trade mark (judgment of 23 November 2010, Codorniu Napa v OHIM — Bodegas Ontañon (ARTESA NAPA VALLEY), T‑35/08, EU:T:2010:476, paragraphs 37 to 39).
48 As the Board of Appeal noted, that case-law is applicable in the present case, since the contested mark differs from the PDO ‘CAVA’, in particular visually, due to the presence of a figurative element and particular features of the latter, namely its large size, the bright colours used to represent it and the particular place it occupies in the sign.
49 On the basis of those considerations, the Board of Appeal was right to conclude, as maintained by EUIPO and the intervener, that the particular features of the contested mark lend it a very specific appearance which means that there is a low degree of visual similarity between the signs in question.
50 Phonetically, it must be observed that the PDO ‘CAVA’ and the contested mark have a certain similarity, since they have in common the initial syllable ‘ca’, followed by a syllable starting with the consonant ‘v’, which partially determines the pronunciation.
51 However, as rightly stated by the Board of Appeal, that element of similarity is largely offset by the phonetic differences between the signs at issue arising from the number of syllables and phonemes they contain. In this respect, it should be noted that the contested mark has seven syllables, while the PDO ‘CAVA’ has only two, and that the former has seven phonemes, while the latter has only four.
52 These differences in the number of syllables and phonemes influence the rhythm of pronunciation and intonation used when the signs are pronounced, and consequently it must be concluded, as the Board of Appeal did, that, phonetically, the signs at issue have only a low degree of similarity.
53 Conceptually, the applicant submits that a trade mark may evoke a PDO when the image triggered in the mind of consumers is that of the product protected by that PDO, regardless of the degree of visual or phonetic similarity between the signs at issue.
54 In support of its argument, the applicant relies on the judgment of 24 March 2011, Ferrero v OHIM, (C‑552/09 P, EU:C:2011:177, paragraph 66), according to which the marks at issue must be assessed globally in order to determine whether, notwithstanding a low degree of similarity, relevant factors such as the renown or reputation of the earlier mark can lead to a likelihood of confusion or of association between the signs at issue in the mind of the relevant public.
55 In this respect, it should be noted that, in the contested decision, the Board of Appeal made a global assessment of whether there is evocation by examining, in addition to the phonetic and visual similarity, to what extent the relevant public might associate the word element ‘cave de Tain’ of the contested mark with the PDO ‘CAVA’ or with the goods covered by that PDO.
56 In that context, the Board considered that the element ‘cave de tain’ would be understood by the average consumer in the European Union, as referring to a wine cellar situated in Tain l’Hermitage, with no link being made to the PDO ‘CAVA’ and therefore with no evocation of that PDO.
57 At the hearing, the Court asked EUIPO to refine its analysis in that regard with respect to the linguistic capabilities of the average consumer in the European Union.
58 In that connection, EUIPO rightly observed that, within the relevant public, consumers who understand French would perceive the words ‘cave de tain’ forming the mark at issue, as well as the grammatical structure of that mark, as part of that language, which perception would preclude an evocation of the PDO ‘CAVA’, which is Spanish-sounding.
59 Furthermore, EUIPO rightly stated that consumers who understand Spanish would perceive those same words as an expression foreign to the Spanish-speaking world, with the result that an evocation of the PDO ‘CAVA’ would be highly unlikely for them, since ‘cava’ is a word of the Spanish language.
60 As regards consumers who understand neither French nor Spanish, EUIPO stated that, to the extent that they could be presumed to be reasonably well informed, they would make a link between the word ‘cave’ and the place where wine was produced or stored, because of the frequent use of the word in the wine industry.
61 As regards the last group of consumers, the Board of Appeal, for its part, found, in the contested decision, that, as they speak neither French nor Spanish, they would not understand the words used in the mark at issue, and consequently, ‘there would be all the more a difference in the two conflicting signs and no link between them’.
62 That wording must be understood as meaning that consumers who do not understand the meaning of ‘cava’ and ‘cave’ in Spanish and French’ and who therefore cannot establish a conceptual link between those words, will be more attentive to their phonetic and visual dimensions when they see or hear those signs.
63 However, as has been pointed out in paragraphs 44 to 52 above, those signs have differences, visually and phonetically, which preclude any possibility of evocation.
64 Finally, it is necessary to reject the applicant’s argument that the term ‘cava’ designates only sparkling wine covered by the PDO ‘CAVA’ and that it would not, contrary to what is stated in the contested decision, refer in Spanish to a cellar or to a place where certain wines are produced.
65 That argument, raised for the first time at the hearing, must be considered to be out of time and therefore inadmissible, though it would have to be rejected even if it were admissible, since, as acknowledged by the applicant in the application, the Spanish dictionary cited by the Board of Appeal, which could be regarded as a reliable source, also states that the word ‘cava’ refers to a wine cellar in which wines, such as cava, are produced.
66 That finding is not affected by the statement, in paragraph 29 of the contested decision, that the word ‘cava’ refers to the place where wineries store their wine barrels and not to the place in which they produce their wines, since this has no effect on the legality of the reasoning of the Board of Appeal.
67 In those circumstances, the Board of Appeal was fully entitled to consider, following a global assessment, that the differences between the signs at issue precluded any possibility of evocation of the PDO ‘CAVA’ by the contested mark.
68 The first ground of objection must therefore be rejected.
The second ground of objection: failure to attach an image to the product protected by the PDO ‘CAVA’
69 By its second ground of objection, the applicant submits that in the analysis made in the contested decision, the Board of Appeal failed to attach an image to the product protected by the PDO ‘CAVA’.
70 This position is contested by EUIPO and the intervener.
71 In that regard, it is sufficient to note that the ground of objection is based on a misreading of the contested decision.
72 In paragraph 28 of that decision, the Board of Appeal stated that the PDO ‘CAVA’ is used to describe a sparkling wine produced in various provinces in the Kingdom of Spain.
73 The Board then examined the contested mark, stating, in paragraph 31 of the contested decision, that that mark would not be understood as referring to the PDO ‘CAVA’ since it included, in its title, the word ‘cave’, which is frequently used in French in the wine sector to designate a wine cellar.
74 That fact led the Board to hold, in paragraph 35 of the contested decision, that the contested mark could be understood, as indicated in paragraph 56 above, by consumers with a knowledge of French or Spanish, as referring to a wine cellar, in the present case, a wine cellar situated in a city or a region of France since, in the contested mark, the word ‘cave’ was associated with a geographical indication, namely, ‘Tain’, which designates a city located in the south‑east of France.
75 In the same paragraph, the Board stated that the word ‘cava’ is used in Spanish to designate a wine cellar, with the result that the word ‘cave’ in the contested mark will be understood by Spanish-speaking consumers not as comprising an evocation of the PDO ‘CAVA’, but rather as referring, on the contrary, to cellars, and to wine cellars in particular.
76 Third, as stated in paragraphs 61 and 62 above, the Board of Appeal noted, in paragraph 37 of the contested decision, that consumers who do not speak French or Spanish might not know the meaning of the words contained in the signs at issue, which would make them pay more attention to the visual and phonetic differences in those signs which preclude the existence of evocation.
77 Relying on those reasons, the Board of Appeal concluded that the contested mark did not evoke the PDO ‘CAVA’.
78 That conclusion, which is endorsed by the Court in the light of the arguments discussed above, cannot be affected by the fact that the PDO ‘CAVA’ enjoys a reputation, since, as has already been stated in paragraphs 44 to 52 above, the visual and phonetic differences between the signs at issue are such as to preclude, in any event, the possibility of evocation.
79 The second ground of objection must therefore be rejected as being unfounded.
The third ground of objection: the Board of Appeal’s failure to take into account certain factors in its analysis of whether there is an ‘evocation’
80 By its third ground of objection, the applicant takes the view that the Board of Appeal failed to take into account a number of factors in its analysis of whether there is an evocation.
81 EUIPO and the intervener dispute the applicant’s arguments and contend that the present ground of objection should be rejected.
82 In the first place, the goods covered by the signs at issue are, according to the applicant, partially identical, which means that an evocation is possible. In this case, the contested mark was registered for ‘wines with a registered designation of origin’. However, that category includes ‘sparkling wines with a registered designation of origin’, which includes products protected by the PDO ‘CAVA’.
83 In that regard, it must be noted that, as acknowledged by EUIPO at the hearing, as the contested mark was registered in respect of goods corresponding to the description ‘wines with a registered designation of origin’ and ‘vin de pays’, it could, as the applicant states, designate sparkling wines, in other words, products identical to those covered by the PDO ‘CAVA’.
84 In its arguments, the applicant refers to the judgment of 21 January 2016, Viiniverla (C‑75/15, EU:C:2016:35, paragraph 33), in which the Court of Justice concluded that there was an evocation of a protected name of products which were similar in appearance.
85 However, it should be noted that, in that judgment, the signs at issue had a degree of visual and phonetic similarity that made evocation possible, that evocation being further enhanced by the links that existed between the products in question.
86 The situation is different in the present case where, as has been stated in paragraphs 44 to 52 above, the signs at issue present, visually and phonetically, differences which preclude any evocation, regardless of any connection that might exist between the products.
87 In the second place, the applicant criticises the Board of Appeal for not having found that the word ‘cave’ is commonly used in the wine sector to describe sparkling wines.
88 That argument of the applicant has no basis in fact, since, contrary to what the applicant maintains, the Board of Appeal found that the word ‘cave’ is commonly used in the wine sector, whether or not the wine in question is a sparkling wine.
89 In any event, even assuming that an error was made in that regard by the Board of Appeal, the applicant does not explain how that error could serve its arguments or what its impact would be on the assessment by the Board of Appeal of whether or not there was evocation.
90 Last, the applicant disputes the finding of the Board of Appeal that the word ‘cave’ and, consequently, the word element ‘cave de tain’ in the contested mark can be recognised as French by the average consumer in the European Union.
91 In that respect, it should be noted that, considered as a whole, the terms in the contested mark, namely ‘cave’, ‘de’ and ‘tain’ are French-sounding, as can be recognised by a consumer who understands French, and the difference from the PDO ‘CAVA’ may also be understood by consumers who understand Spanish.
92 On that basis, the Board of Appeal could legitimately hold that those words would be understood by those consumers as referring to a wine cellar situated in a part of France, as has been stated in paragraphs 56 and 74 above.
93 Moreover, it should be noted that, according to the case-law, wines are everyday consumer goods, since they are distributed in the EU by sectors such as large retailers, restaurants and cafés that are aimed at the general public (see judgment of 14 May 2013, Masottina v OHIM — Bodegas Cooperativas de Alicante (CA’ MARINA), T‑393/11, not published, EU:T:2013:241, paragraph 24 and the case‑law cited).
94 In that context, it may be considered that the average wine consumer in the European Union is familiar with wines that come from France, regardless of what languages that consumer speaks, and that in many cases those wines bear a designation containing a name corresponding to a place or location preceded by the words ‘cave’ or ‘château’.
95 For these reasons, it is appropriate to confirm the assessment made by the Board of Appeal that, because of its structure, the contested mark will be understood by the consumer, regardless of his or her language skills, as referring to a wine produced in France, in the region or town whose name appears in that mark, irrespective of whether this wine is sparkling or not, and the association thus made by the consumer between the product and its French origin precludes any possibility of evocation of the PDO ‘CAVA’.
96 Accordingly, it is necessary to reject the applicant’s third ground of objection and, having regard to the answer given to the other ground of objections, the second part of the single plea put forward by the applicant. Since both parts of the single plea in law have been rejected, that plea must be declared to be wholly unfounded.
97 Consequently, the present action, which is based on that single plea in law, must itself be dismissed.
The confirmation of the contested decision
98 By its first head of claim, the intervener asks the Court to confirm the contested decision.
99 In this respect, it should be noted that, since ‘confirming’ the contested decision is tantamount to dismissing the action, that claim is identical, in essence, to the intervener’s second head of claim (see judgment of 11 July 2017, Dogg Label v EUIPO — Chemoul (JAPRAG), T‑406/16, not published, EU:T:2017:482, paragraph 19 and the case-law cited).
Costs
100 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (First Chamber),
hereby:
1. Dismisses the action;
2. Orders Consejo Regulador del Cava to pay the costs.
Pelikánová | Nihoul | Svenningsen |
Delivered in open court in Luxembourg on 12 July 2018.