JUDGMENT OF THE GENERAL COURT (Third Chamber)
12 February 2014 (*)
(Community trade mark – Opposition proceedings – Application for the Community word mark CALDEA – Earlier international word mark BALEA – Relative ground for refusal – No likelihood of confusion – No similarity between the signs – Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑26/13,
dm-drogerie markt GmbH & Co. KG, established in Karlsruhe (Germany), represented by O. Bludovsky, B. Beinert and A. Bender, lawyers,
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Geroulakos, acting as Agent,
the other party to the proceedings before the Board of Appeal of OHIM being
Semtee, established in Escaldes Engordany (Andorra),
ACTION brought against the decision of the First Board of Appeal of OHIM of 10 October 2012 (Case R 2432/2011‑1), relating to opposition proceedings between dm‑drogerie markt GmbH & Co. KG and Semtee,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood (Rapporteur), and E. Bieliūnas, Judges,
Registrar: J. Weychert, Administrator,
having regard to the application lodged at the Court Registry on 18 January 2013,
having regard to the response lodged at the Court Registry on 23 April 2013,
having regard to the decision of 24 June 2013 not to allow the lodging of a reply,
further to the hearing on 4 December 2013,
gives the following
Background to the dispute
1 On 22 July 2010, Semtee filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2 Registration as a mark was sought for the word sign CALDEA.
3 The goods and services in respect of which registration was sought are in, inter alia, Classes 3, 35, and 44 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 the following description:
– Class 3: ‘Soaps; perfumery, essential oils, cosmetics, hair lotions; dentifrices’;
– Class 35: ‘Consultancy relating to business management of leisure premises, non-medical, making use of water, in particular heated water, for relaxation, leisure, physical maintenance of and keeping fit in the field of health’;
– Class 44: ‘Personalised consultancy, advice and assistance relating to the operation of a leisure centre, non-medical, relating to water, in particular heated water, for relaxation, leisure, physical maintenance and keeping fit in the field of health’.
4 The Community trade mark application was published in Community Trade Marks Bulletin No 2010/176 of 20 September 2010.
5 On 11 October 2010, the applicant, dm-drogerie markt GmbH & Co. KG, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 against 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 international word mark BALEA, having effect within, inter alia, the European Union, registered on 3 February 2006 under number 0894004, designating goods in Classes 3, 5 and 8 and corresponding, for each of those classes, to the following description:
– Class 3: ‘Cleaning, polishing, degreasing and abrasive preparations; soaps, perfumeries, essential oils, massage oils for cosmetic use, preparations for hygienic and beauty use; washing and shower gels, creams, soaps and oils; skin care cosmetic preparations; face, skin and body cosmetic creams; cleansing preparations for hygienic and beauty care use; bath salts, not for medical use; deodorants for personal use (perfumeries), antiperspirants (toiletries); beauty masks, lip gloss; make-up; peelings; depilatory preparations; shampoos, hair care preparations, hair lotions, hair dying preparations, hair sprays, after shaves, Colognes, shaving preparations, preparatory shaving preparations, shaving soaps, after shave lotions, shaving foams, shaving gels, shaving creams, shaving sticks; cleaning preparations for tooth care, mouth washes, not for medical use; cosmetic kits; eye brow cosmetics; cosmetic slimming preparations; artificial nails; nail varnish; nail care preparations; nail varnish remover; artificial eye lashes; tissues, impregnated with cosmetic lotions; cotton wool for cosmetic use, cotton sticks for cosmetic purposes’;
– Class 5: ‘Pharmaceutical and medical preparations and substances; sanitary products for medical use; disinfectants; disinfectants for medical use; mouth washes for medical use; bath preparations, medicated, and for therapeutic use; air freshening preparations; biological preparations for medical use; lozenges for medical use; deodorants for clothing and textiles; remedies for perspiration; dietary products for medical use, food for babies; dietary foods for health care on the basis of vitamins, minerals, amino acids, trace elements; enzyme preparations for medical use; preparations for health care; food supplements, not for medical use, on the basis of minerals, amino acids, trace elements, and plant fibres; slimming products for medical use, appetite suppressants for medical purposes; tonics for medical use; anti-allergic preparations; foot care preparations for medical use, preparations against callouses for medical use; pharmaceutical and medical preparations for athletes, such as salves, gels, sprays against pulled muscles or tendons and muscle strain; plasters, wound dressing material, medicine cases, portable, filled; sun protection preparations for pharmaceutical use; haemostatic pencils; bandages for dressings and bandages for medical purposes; women’s hygienic products, namely sanitary tissues, tampons and panty liners; eye bandages for medical use, eye pads for medical use; cotton wool for medical use; cleaning preparations and solutions for contact lenses’;
– Class 8: ‘Razors, electric and non-electric, razor blades, razors; shaving kits; razor cases; hair clippers and shearing apparatus (for personal use); nail clippers; nail nippers; nail files and fingernail polishers (electric and non-electric); electric manicure sets; pedicure sets; pincers; eyelash curlers; depilation appliances, electric and non-electric; hand implements for hair curling (non-electric)’.
7 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009.
8 By decision of 26 October 2011, the Opposition Division rejected the opposition.
9 On 23 November 2011, the applicant filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.
10 By decision of 10 October 2012 (‘the contested decision’), the First Board of Appeal of OHIM dismissed that appeal. In essence, it based its decision on the following grounds:
– although the goods in Class 3 designated by the signs at issue were identical, by contrast, the services in Classes 35 and 44 designated by the mark applied for were dissimilar to the goods in Classes 3, 5 and 8 designated by the earlier mark;
– since the signs at issue were not visually or conceptually similar and had merely a low aural similarity, they were different in overall terms;
– the differences existing between the signs at issue excluded all likelihood of confusion, and that conclusion could not be called into question by the fact that the goods in question were partially identical or by the alleged reputation of the earlier mark.
Forms of order sought
11 The applicant claims that the Court should:
– annul the contested decision and, ‘by the way of correction’, annul the mark applied for;
– in the alternative, annul the contested decision and refer the case back to OHIM;
– in the further alternative, annul the contested decision.
12 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
13 In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
14 Under that provision, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an 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.
15 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 that 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 concerned 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 designated (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS)  ECR II‑2821, paragraphs 30 to 33 and the case-law cited).
16 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 Case T‑316/07 Commercy v OHIM – easyGroup IP Licensing (easyHotel)  ECR II‑43, paragraph 42 and the case-law cited).
17 The single plea for annulment in the present case must be considered in the light of those principles.
18 It must, however, be added that, by judgment of 18 October 2011 in Case T‑304/10 dm-drogerie markt v OHIM – Semtee (caldea), not published in the ECR, involving the same parties, the Court already ruled on the existence of an alleged likelihood of confusion between the earlier international word mark BALEA, which is held by the applicant and is also at issue in the present case, and a Community figurative mark in respect of which Semtee had applied for registration and which also included the word element ‘caldea’.
19 According to the applicant, that judgment, relied on by the Board of Appeal in various paragraphs of the contested decision, is not relevant in this case, inter alia as regards the assessment of the visual similarity of the signs at issue. In that judgment (in paragraph 40), the Court emphasised the fact that the mark applied for was a figurative mark, that its figurative elements were ‘in no way negligible’ and that the presentation of that mark had ‘a certain distinctive character and that its figurative elements thus [conferred] on the mark applied for a different overall impression to that conferred on the earlier mark’. In the present case, however, the mark applied for is a word mark which does not contain any figurative element.
20 The applicant fails, however, to add that, in paragraph 42 of the judgment in caldea, the Court stated that its assessment of the visual similarity of the signs at issue would not be affected ‘even if their word elements alone were taken into account’ and that, in paragraph 44 of the same judgment, it confirmed that there was no visual similarity between the signs at issue, ‘considered in their entirety, and regardless of the greater or lesser dominance of the word element of the mark applied for’.
21 Since the word elements of the signs at issue in the case which gave rise to the judgment in caldea are identical to the signs at issue in the present case, it is clear that that judgment is highly relevant as regards the visual comparison of those signs for the purposes of the present case.
22 Furthermore, the applicant has not put forward any other arguments to show that the judgment in caldea is not relevant for the purposes of the present case, inasmuch as the other factors to be taken into consideration with regard to Regulation No 207/2009 have already been ruled on in that judgment.
The relevant public
23 According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see Case T‑256/04 Mundipharma v OHIM – Altana Pharma (RESPICUR)  ECR II‑449, paragraph 42 and the case-law cited).
24 In the present case, the Board of Appeal found, in paragraph 23 of the contested decision, that the goods and services at issue were directed at the public at large (the goods in Class 3) as well as at specialised consumers (the services in Classes 35 and 44). Since the earlier mark was an international registration designating the European Union, the Board of Appeal for that reason deemed it appropriate to consider the relevant public for the goods and services at issue to be average consumers in all European Union Member States, who were considered to be reasonably well informed and reasonably observant and circumspect.
25 Those considerations are not challenged in the present action.
The comparison of the goods and services at issue
26 In its application, the applicant criticised the Board of Appeal’s assessment that the services in Class 35 and Class 44 covered by the mark applied for are different from the goods in Class 3 covered by the earlier mark.
27 However, at the hearing the applicant withdrew that aspect of its action, a point which was noted in the minutes of the hearing.
28 Consequently, the Board of Appeal’s assessment relating to the comparison of the goods and services at issue will not now be called into question in this action.
The comparison of the signs at issue
29 As regards the comparison of the signs at issue, it is clear from the case-law that visual, phonetic and conceptual aspects are relevant. The global assessment of the likelihood of confusion must, as far as concerns the visual, phonetic or conceptual similarity of the marks in question, be based on the overall impression given by them, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the overall assessment of that likelihood of confusion. In this respect, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see Case C‑334/05 P OHIM v Shaker  ECR I‑4529, paragraph 35, and Case C‑498/07 P Aceites del Sur-Coosur v Koipe  ECR I‑7371, paragraph 60 and the case-law cited; GIORGIO BEVERLY HILLS, paragraph 39).
30 It is therefore appropriate to proceed to a comparison of the signs at issue in visual, phonetic and conceptual terms, before examining the overall impression that they produce.
The visual comparison
31 As regards the visual comparison, the Board of Appeal found, in paragraph 31 of the contested decision, that the signs at issue showed a similarity as regards the two-letter sequences ‘a’ and ‘l’, on the one hand, and ‘e’ and ‘a’, on the other. It added, however, that they differed in their first letters, namely a ‘c’ in the mark applied for and a ‘b’ in the earlier mark, and that the mark applied for included the letter ‘d’ in the middle of the sign, which had no counterpart in the earlier mark. Given those considerations, the Board of Appeal found, in paragraph 32 of the contested decision, that the signs at issue exhibited sufficient differences to be considered visually dissimilar overall. In that regard, the Board of Appeal also referred to the findings set out by the Court in paragraph 42 of the judgment in caldea.
32 The applicant disputes that assessment and submits that the signs at issue show ‘at least a normal degree of’ visual ‘similarity’. It maintains that, in accordance with OHIM’s Opposition Guidelines, the overall visual impression produced by word signs depends to a great extent on the number of letters and the structure of the words. However, the average consumer normally perceives a sign as a whole and does not proceed to analyse its various details. Therefore, small differences in the letters, or in the number of letters, are often not sufficient to exclude a finding of visual similarity between the signs, particularly when the signs have the same structure.
33 That being the case, the applicant claims, relying on, by analogy, certain previous decisions of the Board of Appeal, that the signs at issue in the present case give an ‘optical impression’ which ‘is … very similar’ by reason of the fact that they consist of a single word of three syllables containing almost the same number of letters – namely five and six respectively, four of which are identical and in the same position with the same sequence, here, ‘a’, ‘l’, ‘e’ and ‘a’ – and have the same succinct ending, here ‘e’ and ‘a’. The letter ‘d’ is ‘neglectable’ and does not alter the overall impression of visual similarity which is classified as ‘high’. The fact that the first letter of each of the signs is different does not a priori preclude a likelihood of confusion. Furthermore, neither of the signs at issue is written in a special type of font and no additional elements which could give rise to a different visual impression have been added to them. Lastly, according to OHIM’s Opposition Guidelines (part 2, chapter 2, C.II.2.2), consumers tend to remember the similarities rather than the dissimilarities of signs.
34 Those criticisms correspond, in essence, to those already expressed by the applicant against the decision at issue in the case which gave rise to the judgment in caldea, which are summarised in paragraph 34 of that judgment. It is therefore sufficient, in order to reject them, to refer to the findings set out, in that regard, by the Court in paragraph 42 of that judgment, according to which, in essence, the differences between the signs at issue will be more easily grasped by the average consumer since those signs consist of a limited number of letters. Furthermore, the Court upholds the findings of the Board of Appeal referred to in paragraph 31 above.
35 With regard to the previous decisions of the Board of Appeal relied on by the applicant, it must be stated, as OHIM did, that these relate to different factual situations to that in the present case, with the result that the alleged analogy does not exist. In any event, according to settled case-law, the decisions which the Boards of Appeal of OHIM are called on to take under Regulation No 207/2009, concerning registration of a sign as a Community trade mark, are adopted in the exercise of circumscribed powers and are not a matter of discretion. Therefore, the legality of those decisions must be assessed solely on the basis of that regulation and not on the basis of a previous decision-making practice of those boards (see Case C‑173/04 P Deutsche SiSi-Werke v OHIM  ECR I‑551, paragraph 48 and the case-law cited).
36 The Board of Appeal did not therefore err in finding that there was no visual similarity between the signs at issue.
The phonetic comparison
37 With regard to the phonetic comparison, the Board of Appeal stated, in paragraph 35 of the contested decision, which refers to paragraph 48 of the judgment in caldea, that, according to the International Phonetic Alphabet edited by the International Phonetic Association, the letter ‘b’ belongs to the voiced bilabial plosives sub-category of consonants and that its pronunciation differs very distinctly from that of the letter ‘k’, which belongs to the voiceless velar plosives sub-category of consonants. In addition, both consonants are, in the present case, followed by the same vowel ‘a’, which allows them to be pronounced fully and strengthens the pronunciation of the beginning of the word. Furthermore, the difference in pronunciation introduced by the presence, in the middle of the mark applied for, of the letter ‘d’ is also strengthened by the vowel ‘a’ which follows it and renders it more noticeable. The Board of Appeal therefore found, in paragraph 36 of the contested decision, that the signs at issue had only a low degree of phonetic similarity.
38 The applicant disputes that assessment and claims, relying, by analogy, on previous decisions of the Board of Appeal, that the signs at issue have a high degree of phonetic similarity, since they produce the same general sound and have the same number of syllables. Their first letters, ‘b’ and ‘c’ respectively, although different, are similar given that the letter ‘c’ is pronounced like the letter ‘k’. Those two letters thus belong to the group of plosive consonants, which are produced by stopping the airflow in the vocal tract. Furthermore, four letters, in this case, ‘a’, ‘l’, ‘e’ and ‘a’, of the signs at issue are identical and are pronounced in the same way, with the same sequence of vowels, ‘a’, ‘e’ and ‘a’. As for the presence of the letter ‘d’ in the mark applied for, that is not noticeable since that letter is pronounced very softly. According to the applicant, it is above all necessary to take account of the fact that consumers consider the signs to be trisyllabic trade marks with the stress on the same syllable and with the same sequence of vowels which occupy the same positions and are in the same order. The consonants in the signs are similar and even the endings are identical.
39 In this regard, it should be noted at the outset, as was pointed out in the case which gave rise to the judgment in caldea, that in certain non-Germanic languages, particularly the Baltic and Slavic languages, the letter ‘c’ is not pronounced like the letter ‘k’ but rather like the letter ‘s’ or like the sound ‘ts’ in English. The applicant’s argument that the letters ‘b’ and ‘k’ belong to the group of plosive consonants is therefore irrelevant for part of the public.
40 As to the remainder, the applicant’s criticisms correspond, in essence, to those it already expressed against the decision at issue in the case which gave rise to the judgment in caldea, which are summarised in paragraph 46 of that judgment. It is therefore sufficient, in order to reject them, to refer to the findings set out, in that regard, by the Court in paragraph 48 of that judgment, according to which, in essence, the presence in the signs at issue of letters belonging to the group of plosive consonants is not sufficient to make those signs phonetically similar, in view of the presence of other elements which give rise to distinct phonetic differences.
41 The Court accordingly takes the view that the Board of Appeal did not err in finding that there was only a low degree of phonetic similarity between the signs at issue, since the previous decisions of the Board of Appeal relied on by the applicant to the contrary are irrelevant, in fact and in law, for the same reasons as those outlined in paragraph 35 above.
The conceptual comparison
42 Concerning the conceptual comparison, the Board of Appeal found, in paragraph 37 of the contested decision, that the word ‘balea’ meant ‘whale’ in Galician and that it also referred to a lake in Romania called ‘Bâlea’, that those concepts were not easily understood in the whole European Union and that the sign applied for ‘caldea’ had no meaning. It was of the opinion, consequently, that the signs at issue were not conceptually similar.
43 While not challenging that assessment, the applicant submits that the conceptual comparison of the signs at issue is irrelevant in the present case, since the mark applied for has no meaning, while the earlier mark has a meaning only for a tiny part of the population of the European Union.
44 The Board of Appeal did not therefore err in finding that there was no conceptual similarity between the signs at issue.
The overall impression
45 In the present case, after reiterating, in paragraph 44 of the contested decision, that the signs at issue were visually and conceptually dissimilar, but had a low degree of phonetic similarity, the Board of Appeal stated that that finding was not sufficient to render the signs similar overall. In that respect, the Board of Appeal stated, in paragraph 45 of the contested decision, that the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public normally also perceives visually the mark designating those goods. Conversely, it stated, citing paragraph 56 of the judgment in caldea, a low degree of phonetic similarity should not prevail, in the global comparison of the signs at issue, unless the contact between the goods concerned and the public is generally established by means of sound. The Board of Appeal therefore concluded, in paragraph 46 of the contested decision, that, on the basis of the overall impression produced by the signs at issue, the visual and conceptual differences which characterised them were sufficient to neutralise their low phonetic similarity, with the result that they had to be deemed to be different overall.
46 In so far as that overall assessment is criticised by the applicant, as it was in the case which gave rise to the judgment in caldea, it is sufficient, in order to reject those criticisms, to refer to the findings set out, in that regard, by the Court in paragraphs 54 to 59 of that judgment, that, in essence, the relevant public will, when making a purchase, give priority to the visual perception of the signs at issue, since those signs are visually distinct and are also in addition conceptually different, with the result that mere phonetic similarity, which is, moreover low, will play only a minor role.
47 Consequently, the Court takes the view that the Board of Appeal did not err in finding, in paragraph 46 of the contested decision, that the signs at issue were different overall.
The global assessment of the likelihood of confusion
48 In paragraphs 43 to 47 of the contested decision, the Board of Appeal found that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 in the mind of the relevant public, even for the identical goods at issue, on the ground that the signs at issue were different overall. It added, in paragraph 48 of the contested decision, that that conclusion was not affected by the fact that the earlier mark enjoyed a reputation in Germany. In that regard, it acknowledged that the fact that a mark has a reputation represents one factor which has been taken into account for the purpose of determining whether the similarity between the signs or between the goods and services is sufficient to give rise to a likelihood of confusion, given that it is settled case-law that the more distinctive the earlier mark, the greater will be the likelihood of confusion. However, it noted, in paragraphs 50 and 51 of the contested decision, that a likelihood of confusion presupposes that the signs are identical or similar. It stated that in the present case, as the signs had been found to be dissimilar overall, it would therefore be irrelevant to assess the evidence of reputation submitted by the applicant since it could not alter the conclusion already reached.
49 According to the applicant, it follows from its arguments that the signs at issue are similar overall, while the goods and services concerned are identical or highly similar. In that regard, the applicant above all alleges that the Board of Appeal did not sufficiently consider the principle of interdependence, even though the goods covered by the signs at issue are identical.
50 The overall likelihood of confusion would, moreover, be increased by the fact that the goods in question are not very expensive and are therefore most often bought quickly and without a great deal of attention.
51 Lastly, the applicant complains that the Board of Appeal did not take into account the highly distinctive character of the earlier mark. Since the applicant proved the reputation of that mark in Germany and in several other Member States, acquired by reason of its intensive and prolonged use, the Board of Appeal ought, according to the applicant, to have afforded the mark an increased scope of protection and ought, therefore, to have concluded that there was a likelihood of confusion between the signs at issue. The applicant relies on, to that effect, a judgment of the Landgericht Mannheim (Mannheim Regional Court, Germany) which held that the signs Cadea and Balea were similar.
52 In this regard, it follows from the matters addressed in paragraphs 29 to 47 above that one of the conditions required by Article 8(1)(b) of Regulation No 207/2009 for the purposes of establishing a likelihood of confusion, namely identity or similarity between the marks at issue, is not met in the present case.
53 Consequently, it must be held that the Board of Appeal acted correctly in law in finding that there was no likelihood of confusion, in its global assessment thereof.
54 The applicant’s arguments based on, first, the identity or similarity of the goods and services concerned; secondly, the reputation of the earlier mark, particularly in Germany; thirdly, the so-called low degree of attention of the relevant public and the method of distribution of the goods at issue and, fourthly, a judgment of the Landgericht Mannheim, could not invalidate that finding, even if they were not irrelevant. As those arguments are, in essence, identical to those already put forward by the applicant against the decision at issue in the case which gave rise to the judgment in caldea, it is sufficient, in order to reject them, to refer to the findings set out, in that regard, by the Court in paragraphs 68, 69, 70 and 71 of that judgment, according to which, it is, in essence, not possible to conclude that there is a likelihood of confusion where there is no similarity between the signs at issue, a finding which is not called into question where the goods and services are identical or similar or where an earlier mark has a highly distinctive character.
55 In view of all of the foregoing, it must be held that the Board of Appeal acted correctly in establishing that the signs at issue were different and that there was no likelihood of confusion between them.
56 Consequently, the applicant’s single plea in law must be rejected as unfounded and the action therefore dismissed in its entirety, without there being any need to rule on the admissibility, which has been disputed by OHIM, of the claim in the application for the annulment of the mark applied for and the referral of the case back to OHIM.
57 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
58 Since the applicant has been unsuccessful, it must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
1. Dismisses the action;
2. Orders dm-drogerie markt GmbH & Co. KG to pay the costs.
Delivered in open court in Luxembourg on 12 February 2014.