JUDGMENT OF THE GENERAL COURT (Third Chamber)
7 July 2015 (*)
(Community trade mark — Opposition proceedings — Application for the Community figurative mark A ASTER — Earlier Community word mark A-STARS — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑521/13,
Alpinestars Research Srl, established in Coste di Maser, Treviso (Italy), represented by G. Dragotti, R. Valenti and S. Balice, lawyers,
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by V. Melgar, acting as Agent,
the other parties to the proceedings before the Board of Appeal of OHIM being
Kean Tung Cho, residing in Taichung City (Taiwan),
Ling-Yuan Wang Yu, residing in Wuci Township (Taiwan),
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 July 2013 (Case R 2309/2012-4), relating to opposition proceedings between Alpinestars Research Srl, on the one hand, and Kean Tung Cho and Ling-Yuan Wang Yu, on the other hand,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood (Rapporteur) and E. Bieliūnas, Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 19 September 2013,
having regard to the response lodged at the Court Registry on 10 December 2013,
having regard to the reply lodged at the Court Registry on 24 March 2014,
further to the hearing on 14 April 2015,
gives the following
Background to the dispute
1 On 23 July 2008, Mr Kean Tung Cho and Ms Ling-Yuan Wang Yu filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (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 The mark in respect of which registration was sought is the following figurative sign:
3 The goods in respect of which registration was sought are in Classes 18 and 25 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 18: ‘Backpacks, travelling bags, briefcases, handbags, shopping bags, wallets, walking sticks, umbrellas’;
– Class 25: ‘Cyclists’ clothing, gloves [clothing], hats, sports shoes, ear muffs [clothing], socks’.
4 The application for registration was published in Community Trade Marks Bulletin No 2008/039 of 29 September 2008.
5 On 29 December 2008, the applicant, Alpinestars Research Srl, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the mark applied for in respect of the goods listed in paragraph 3 above.
6 The opposition was based on Community trade mark No 6181002, registration of which had been applied for on 8 August 2007 and granted on 12 June 2008, namely the word mark A-STARS.
7 The earlier mark was registered in respect of goods in, inter alia, Classes 18 and 25 of the Nice Agreement, corresponding, for each of those classes, to the following description:
– Class 18: ‘Leather and imitation of leather and goods made of these materials and not included in other classes; animal skins, hides; trunks, suitcases, parasols, umbrellas, knapsacks, walking sticks, handbags, travelling bags, mountaineering bags, school bags, camping bags, wallets and purses’;
– Class 25: ‘Clothing, footwear and headgear; anoraks, trousers, shirts, pullovers, skirts, sports footwear, boots for motorcyclists, slippers, trench coats, coats, socks, track suits, gloves, hats, caps, scarves, leisure-time footwear’.
8 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009, regarding the existence of a likelihood of confusion between the mark applied for and the earlier mark.
9 By decision of 19 October 2012, the Opposition Division rejected the opposition.
10 On 19 December 2012, 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.
11 By decision of 15 July 2013 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the applicant’s appeal. In essence, it based its decision on the following reasons:
– the goods covered by the mark applied for and the goods covered by the earlier mark are identical;
– the signs are similar to a low degree both visually and phonetically;
– in spite of the common origin of the two marks (the word ‘αστήρ’ in ancient Greek), it is unlikely that consumers will detect a conceptual similarity between them;
– as regards the goods in Classes 18 and 25, the result of the visual comparison carries greater weight, given that those types of goods are normally chosen following a visual inspection;
– the inherent distinctiveness of the earlier mark is normal and the applicant did not explicitly claim that its mark had become particularly distinctive as a consequence of intensive use or of its reputation.
Forms of order sought
12 The applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
13 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
14 In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation (EC) No 207/2009.
15 That provision 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, 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.
16 According to settled case-law, two marks are similar, for the purposes of Article 8(1)(b) of Regulation No 207/2009, where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see judgment of 25 November 2003 in Oriental Kitchen v OHIM — Mou Dybfrost (KIAP MOU), T‑286/02, ECR, EU:T:2003:311, paragraph 38 and the case-law cited).
17 As is apparent from the case-law, the visual, phonetic and conceptual aspects are relevant. The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the marks at issue, be based on the overall impression given by those marks, 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 global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007 in OHIM v Shaker, C‑334/05 P, ECR, EU:C:2007:333, paragraph 35 and the case-law cited, and judgment of 3 September 2009 in Aceites del Sur-Coosur v Koipe and OHIM, C‑498/07 P, ECR, EU:C:2009:503, paragraph 60).
18 It is in the light of those principles that the single plea for annulment and the Board of Appeal’s analysis must, in the present case, be examined.
19 It is necessary at the outset to confirm the Board of Appeal’s findings as regards the definition of the relevant public, namely the average consumer in all the Member States of the European Union, and as regards the identity of the goods referred to in paragraph 3 above with the goods in Classes 18 and 25 covered by the earlier mark, which the parties do not, moreover, dispute.
The comparison of the signs at issue
20 The applicant submits, in essence, that the Board of Appeal did not take into account certain visual, phonetic and conceptual similarities between the two marks at issue.
The visual comparison
21 The Board of Appeal found that although the marks at issue had the initial letter ‘a’ in common, that letter ‘a’ was very stylised and was situated above the element ‘aster’ in the mark applied for, whereas the letter ‘a’ was at the same level as the word ‘stars’, which it simply preceded and from which it was separated by a hyphen, in the earlier mark. Next, the Board of Appeal found that the marks had four letters — the initial letter ‘a’ and the letters ‘s’, ‘t’ and ‘r’ — in common. However, it took the view that although the beginnings of the marks were identical, they differed in their endings and their structure. In addition, the Board of Appeal stated that the mark applied for was represented in a highly stylised and ‘eye-catching’ typeface. In the light of those considerations, the Board of Appeal found, in paragraph 15 of the contested decision, that, visually, the signs at issue were similar to a low degree.
22 The applicant does not dispute the Board of Appeal’s assessment that the signs are the same length and have four letters in common, including the first. It submits, however, that there is at least a normal degree of visual similarity between the signs at issue in view of the following factors:
– visually, the earlier mark should be considered in its entirety, namely A-STARS;
– as regards the mark applied for, the word element ‘aster’ should be considered to be more distinctive than the figurative element of the mark because the average consumer will more easily refer to the goods in question by quoting the name of the mark than by describing the figurative element of that mark.
23 First of all, it must be borne in mind that, according to the case-law, assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment in OHIM v Shaker, EU:C:2007:333, cited in paragraph 17 above, paragraphs 41 and 42).
24 Furthermore, it must be pointed out that, as the applicant rightly submits, in the case of a mark consisting of both word and figurative elements, the word elements must generally be regarded as more distinctive than the figurative elements, or even as dominant, since members of the relevant public will recall the word element to identify the mark concerned, the figurative elements being perceived more as decorative elements (see, to that effect, judgment of 4 February 2013 in Marszałkowski v OHIM — Mar-Ko Fleischwaren (WALICHNOWY MARKO), T‑159/11, EU:T:2013:56, paragraph 40 and the case-law cited).
25 In the first place, as regards the mark applied for, the average consumer may perceive the graphic element situated above the word ‘aster’ as an arrow or other decorative element and not as a capital letter ‘a’. That element, which is very stylised, to the extent that its legibility is affected, stands on its own and is a different size and in a different font than the rest of the sign, constitutes a decorative element, which does not directly form part of the word element of the mark. By contrast, the word element ‘aster’ consists of capital letters represented in bold, black type on a white background, which are surrounded by a fine, black line and are in a relatively uncommon font. Furthermore, as the size of that element greatly exceeds that of the figurative element, it constitutes the main component of the sign. It must therefore be held that, in the mark applied for, the word element ‘aster’ is the dominant element since it has characteristics which enable it to make an immediate impression on the relevant public and that the decorative element in the shape of an arrow, which is less distinctive than that word element, is, on account in particular of its size and its white colour which is less visible than that of that word element, negligible, with the result that it is the element ‘aster’ which the relevant public will remember.
26 As regards, by contrast, the earlier mark, which is a word mark, in spite of the link made between the initial letter ‘a’ and the element ‘stars’ by a hyphen, the sign cannot be broken down visually into two elements.
27 It follows that the visual comparison entails an assessment of the similarities and differences between the word element ‘aster’ and the word mark A-STARS.
28 In the present case, the dominant element of the mark applied for ‘aster’ and the earlier mark coincide in their first three letters and in their fifth letters, namely ‘a’, ‘s’, ‘t’ and ‘r’, which are in the same positions in the respective signs. They differ only in the presence in the earlier mark of a hyphen linking the first letter to the rest of the sign, and the vowel ‘a’ and the consonant ‘s’ placed in fourth and sixth position respectively, whereas the mark applied for contains the vowel ‘e’ in fourth position. As the marks contain five and six letters respectively, they may be regarded as being similar in length. Although those differences at the end of the earlier mark preclude the signs from being held to be identical, the fact none the less remains that the part which is common to the signs gives rise to a visual similarity between the word elements, particularly because the public generally pays more attention to the initial part of word marks (see, to that effect, judgment of 6 June 2013 in Celtipharm v OHIM — Alliance Healthcare France (PHARMASTREET), T‑411/12, EU:T:2013:304, paragraph 25 and the case-law cited).
29 In the present case, contrary to the finding of the Board of Appeal, the similarity between the signs at issue is not capable of being offset to a significant extent by the fact that the word element ‘aster’ in the mark applied for is written in black in a stylised font, is in bold, slopes slightly to the right and has a decorative element (see paragraph 25 above) placed above it, whereas the earlier sign consists only of the word element ‘a-stars’.
30 Accordingly, the Board of Appeal erred in finding that there was a low degree of visual similarity.
31 The Court therefore takes the view that there is an average degree of visual similarity between the signs at issue, in spite of the differences between them.
The phonetic comparison
32 In the present case, the Board of Appeal found that the signs, which coincide in the pronunciation of the letters ‘a’, ‘st’ and ‘r’, differed in that the earlier mark would be pronounced as two syllables, ‘a’ and ‘stars’, whereas the mark applied for would be pronounced as two or three syllables (‘as’ and ‘ter’ or ‘a’, ‘as’ and ‘ter’); the phonetic emphasis was likely to be placed on the first syllable, as regards ‘aster’, and on the second syllable as regards the sign A-STARS, and, because of the hyphen, the letter ‘a’ in the sign A-STARS would not be pronounced as forming a syllable with the initial letter ‘s’ in the element ‘stars’.
33 The applicant, while agreeing with the Board of Appeal’s assessment that the signs coincide in the pronunciation of the four letters ‘a’, ‘st’ and ‘r’, takes the view that the difference in pronunciation between the signs lies in the different vowels ‘a’ and ‘e’. Consequently, according to the applicant, the phonetic difference between the pronunciations of the elements ‘astars’ and ‘aster’ is difficult to perceive because the letter ‘e’ in the latter is not audible and the element which prevails is the first part of the words.
34 Furthermore, the applicant submits that the contested sign will be pronounced solely as ‘as-ter’ and not as ‘a-as-ter’, as the Board of Appeal, according to the applicant, alternatively and wrongly found. In this connection, the applicant refers to a decision of 23 March 2010 in which, it submits, the Opposition Division found that the same mark as that applied for in the present case would be pronounced as ‘as-ter’ throughout the European Union.
35 In conclusion, the applicant maintains that there is a high degree of phonetic similarity between the signs at issue.
36 As regards, first, the pronunciation of the mark applied for, it must be stated that, in accordance with what the Court has pointed out in paragraph 25 above, the stylised element, which stands on its own, does not directly form part of the word component of the mark. It is thus unlikely that the consumer will repeat the vowel ‘a’ in the mark applied for in order to pronounce the sign as ‘a-aster’. It must therefore be held that the mark applied for will be pronounced as two syllables and not three, contrary to what the Board of Appeal stated alternatively in paragraph 16 of the contested decision.
37 As regards, secondly, the pronunciation of the earlier mark, the hyphen between the letter ‘a’ and the word ‘star’ must indeed be taken into account with regard to the part of the relevant public which has some knowledge of English and English pronunciation. The earlier mark will thus be pronounced as two elements which may easily be identified by that part of the relevant public. By contrast, it cannot be ruled out that for the non-English-speaking part of the relevant public, the presence of the hyphen will have no effect and the earlier mark will be pronounced as two syllables which are difficult to perceive with the ‘a’ being pronounced in the same syllable as the initial letter ‘s’ of the element ‘stars’. As regards the phonetic stress, it may be placed, both in respect of the earlier mark and the mark applied for, on the first or second syllable depending on the language spoken by the consumer.
38 Furthermore, as the applicant rightly submits, the vowels ‘e’ and ‘a’ in the second parts, respectively, of the word part of the mark applied for and the earlier mark, have similar sounds which can hardly be perceived phonetically.
39 Lastly, the mere fact that the signs at issue differ as regards their last letters also cannot suffice to dominate the overall phonetic impression and to offset the phonetic similarity between the marks at issue, since the letter ‘s’ in the earlier mark is preceded by the letter ‘r’ — which is in the same place in both of the marks at issue — and it will remain silent for the part of the relevant public which speaks languages in which the letter ‘s’ at the end of words is silent, such as French.
40 Accordingly, the Board of Appeal erred in finding that there was only a low degree of phonetic similarity.
41 The Court therefore takes the view that the signs at issue are highly similar phonetically, at least for the non-English-speaking part of the relevant public.
The conceptual comparison
42 As regards, in the third place, the conceptual comparison of the signs, the Board of Appeal found that, in spite of their common origin, consumers were not likely to detect a conceptual similarity. It took the view that ‘aster’ would be perceived as fanciful in relation to the goods in Classes 18 and 25, whereas the element ‘stars’ would be understood as meaning ‘persons of brilliant reputation or talent’. Furthermore, the Board of Appeal took the view that the letter ‘a’ often had a laudatory connotation.
43 The applicant agrees with the Board of Appeal’s finding that the comparison should be confined to the elements ‘stars’ and ‘aster’. The applicant also agrees with the Board of Appeal’s statement that both signs have their origin in the same word in ancient Greek.
44 The applicant submits, in essence, that the average consumer will recognise the concept that corresponds to the origin which both of the marks at issue have in common and which is derived from the ancient Greek ‘ἀστήρ’ (or ‘astér’ in transliteration, that is to say ‘star’ in English).
45 As regards, first, the element ‘stars’ in the earlier mark, it must be borne in mind that the Court has already held that the word ‘star’ is part of basic English vocabulary and is generally known by a large part of the public in the European Union, including the public in non-English-speaking territories. Accordingly, the Court has held that the English word ‘star’ is generally understood, by a large part of the relevant public, as a laudatory term which emphasises the quality of the goods (see, to that effect, judgment of 10 September 2014 in DTM Ricambi v OHIM — STAR (STAR), T‑199/13, EU:T:2014:761, paragraph 61) or as a reference to a star or a famous person (judgment of 21 January 2010 in G-Star Raw Denim v OHIM — ESGW (G Stor), T‑309/08, EU:T:2010:22, paragraph 32).
46 The applicant submits that the average consumer in the European Union immediately links the sign A-STARS with the idea of a star in the sense of a celestial body because the sign A-STARS is frequently used together with a graphic image including a lower-case letter ‘a’ and a stylised star.
47 It must be borne in mind, in that regard, that the examination of the similarity of the marks at issue takes into consideration those marks in their entirety, as they have been registered or as they have been applied for. A word mark is a mark consisting entirely of letters, of words or of groups of words, written in printed characters in normal font, without any specific figurative element. The protection which results from registration of a word mark relates to the word mentioned in the application for registration and not the specific figurative or stylistic aspects which that mark might have. The typography which the earlier word sign might have must not, therefore, be taken into account for the purposes of the examination of similarity (see, to that effect, judgment of 9 April 2014 in Pico Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE), T‑623/11, ECR, EU:T:2014:199, paragraph 38, and judgment of 2 December 2009 in Volvo Trademark v OHIM — Grebenshikova (SOLVO), T‑434/07, ECR, EU:T:2009:480, paragraph 37).
48 It is apparent from the foregoing that, as far as the earlier mark is concerned, although the mark A-STARS may be perceived either as a laudatory term which emphasises the quality of the goods or as a reference to a star or a famous person, it is not, however, capable of directly conveying a clear meaning to the relevant public. That finding is reinforced, in the present case, by virtue of the very remote link between the possible meanings of the word ‘stars’ and the goods in Classes 18 and 25 at issue.
49 Accordingly, it must be held that the Board of Appeal was in error as to the facts when it found that at least English-speaking consumers would not understand the element ‘stars’ in its primary meaning of stars, but in its secondary meaning of persons of brilliant reputation or talent. There is nothing in the case-file to support such a finding.
50 As regards, secondly, the element ‘aster’ in the mark applied for, it is unlikely, contrary to what the applicant submits, that the relevant public will attribute to the element in question the meaning of star owing to the link between the words meaning star in most of the languages of the European Union and the Greek word ‘aster’ or Latin word ‘astrum’, which have the same meaning. The mere fact that in most of the languages of the European Union the word meaning ‘star’ derives from Greek or Latin does not enable average consumers, the very great majority of whom do not have any knowledge of Greek or Latin, to attribute the meaning of star to the mark at issue.
51 Moreover, part of the relevant public will attribute to the element ‘aster’ the meaning which that word has in, inter alia, Spanish, Estonian, Dutch, German, Polish and Swedish, in which ‘aster’ refers to a plant.
52 As regards, thirdly, the Greek public in particular, it is unlikely that that public will make a link between the modern word ‘αστέρι’ (or ‘asteri’ in transliteration) and the word ‘ἀστήρ’ (or ‘astér’ in transliteration), which comes from ancient Greek and means star, and will thus attribute the specific meaning of star to the element ‘aster’, since the spelling and pronunciation of those words are different.
53 It follows that, contrary to the finding of the Board of Appeal, given the various possible meanings of the elements ‘stars’ and ‘aster’ and the remote conceptual link between them, there is no conceptual similarity between the signs at issue.
The likelihood of confusion
54 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. That global assessment implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgment of 13 September 2007 in Il Ponte Finanziaria v OHIM, C‑234/06 P, ECR, EU:C:2007:514, paragraph 32).
55 Furthermore, in the global assessment of the likelihood of confusion, 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 judgment of 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, ECR, EU:T:2007:46, paragraph 42 and the case-law cited).
56 In the first place, the Board of Appeal pointed out that the earlier mark had a normal distinctive character and that the applicant had not explicitly claimed that its mark had become particularly distinctive as a consequence of intensive use or reputation.
57 The applicant submits in that regard that its earlier mark has a reputation and is widely known. It submits that the mark A-STARS is enjoying growing success, which is leading it to use it more and more extensively and to defend it from third parties’ attempts of imitations. The applicant complains that the Board of Appeal did not take into account the highly distinctive character and recognition of the mark, which must play a role in the global assessment of the likelihood of confusion where marks with a highly distinctive character, either per se or because of the recognition they possess on the market, enjoy broader protection than marks with a less distinctive character.
58 In that regard, it is apparent from the case-file that the applicant’s argument relating to the highly distinctive character acquired through use was put forward for the first time before the Court. That point therefore constitutes a new argument which the applicant did not put forward before OHIM in the opposition or appeal proceedings and which OHIM was not required to examine of its own motion since Article 76(1), in fine, of Regulation No 207/2009 restricts its examination to the facts, evidence and arguments provided by the parties and the relief sought. That argument is therefore inadmissible.
59 As regards the inherent distinctiveness of the earlier mark, the Board of Appeal found that it was ‘normal’ and the applicant has not put forward any argument capable of calling that finding into question.
60 Lastly, it must be borne in mind that, as regards the articles concerned, namely clothing, footwear and headgear, visual similarity is of particular importance since it is acknowledged that, in general, the purchase of clothing involves a visual examination of the marks (see, to that effect, judgment of 12 July 2006 in Rossi v OHIM — Marcorossi (MARCOROSSI), T‑97/05, EU:T:2006:203, paragraph 45 and the case-law cited).
61 It is apparent from the foregoing that, first, the goods at issue are identical. Secondly, there is an average degree of visual similarity between the signs at issue for the whole of the relevant public and a high degree of phonetic similarity between the signs at issue for at least the non-English-speaking public. Furthermore, there is no conceptual similarity between the marks at issue for the relevant public.
62 In that regard, it must be pointed out that although the marks at issue have been held to be conceptually different, it is also necessary, for conceptual differences between two signs to be capable of counteracting phonetic and visual similarities between the marks at issue, for at least one of those signs to have a clear and specific meaning for the relevant public, so that that public is capable of grasping it immediately (see judgment of 18 December 2008 in Les Éditions Albert René v OHIM, C‑16/06 P, ECR, EU:C:2008:739, paragraph 98 and the case-law cited).
63 However, it is apparent from paragraph 48 above that the earlier mark is not capable of directly conveying a clear meaning to the relevant public, with the result that the conceptual dissimilarity between the marks at issue cannot in the present case suffice to counteract the average degree of visual similarity and the high degree of phonetic similarity which the Court has held to exist (see, to that effect, judgment of 15 July 2011 in Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO), T‑220/09, EU:T:2011:392, paragraph 39 and the case-law cited).
64 Consequently, it must be held that there is a likelihood of confusion in the present case, at least for part of the relevant public.
65 In the light of all of those factors, the Board of Appeal infringed Article 8(1)(b) of Regulation No 207/2009 in finding that there was no likelihood of confusion between the signs at issue.
66 For all of those reasons, the contested decision must be annulled.
67 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.
68 Since OHIM has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Third Chamber)
1. Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 15 July 2013 (Case R 2309/2012-4);
2. Orders OHIM to pay the costs.
Delivered in open court in Luxembourg on 7 July 2015.