JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
7 October 2015(*)
(Community trade mark — Opposition proceedings — Application for Community word mark Trecolore — Earlier Community and national word and figurative marks FRECCE TRICOLORI — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑227/14,
CBM Creative Brands Marken GmbH, established in Zurich (Switzerland), represented by U. Lüken, M. Grundmann and N. Kerger, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Aeronautica Militare — Stato Maggiore, established in Rome (Italy),
ACTION brought against the decision of the First Board of Appeal of OHIM of 29 January 2014 (Case R 253/2013-1), relating to opposition proceedings between Aeronautica Militare — Stato Maggiore and CBM Creative Brands Marken GmbH,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,
Registrar: J. Weychert, Administrator,
having regard to the application lodged at the Court Registry on 11 April 2014,
having regard to the response lodged at the Court Registry on 16 July 2014,
having regard to the decision of 24 September 2014 refusing to allow the lodging of a reply,
further to the hearing on 30 April 2015,
gives the following
Judgment
Background to the dispute
1 On 7 April 2011, the applicant, CBM Creative Brands Marken GmbH, 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 Trecolore.
3 The goods and services in respect of which registration was sought are in Classes 18, 25 and 35 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; Animal skins, hides; Trunks and travelling bags, bags, handbags, pocket wallets, purses, key cases, rucksacks, bags; Umbrellas, parasols and walking sticks; Whips, harness and saddlery’;
– Class 25: ‘Clothing, footwear, headgear’;
– Class 35: ‘Advertising; Business management; Business administration; Office functions; Retail services, including via websites and teleshopping, in relation to clothing, footwear, headgear, bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, dentifrices, sunglasses, precious metals and their alloys and goods in precious metals or coated therewith, jewellery, precious stones, horological and chronometric instruments, leather and imitations of leather, and goods made of these materials, animal skins, hides, trunks and travelling bags, bags, handbags, wallets, purses, key cases, rucksacks, pouches, umbrellas, parasols and walking sticks, whips, harness and saddlery; Arranging and conducting of advertising events and customer loyalty programmes.’
4 The Community trade mark application was published in Community Trade Marks Bulletin No 88/2011 of 11 May 2011.
5 On 5 August 2011, Aeronautica Militare — Stato Maggiore filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the mark applied for.
6 The opposition was based on the following earlier rights:
– the Community word mark FRECCE TRICOLORI, registered on 27 January 2010 under No 8 425 481 and designating goods and services in Classes 9, 14, 18, 25, 28 and 41;
– the Italian word mark FRECCE TRICOLORI, registered on 30 November 2010 under No 1 379 870 and designating goods and services in Classes 9, 14, 16, 18, 20, 25, 28 and 41;
– the Community figurative mark reproduced below, registered on 27 January 2010 under No 8 425 531 and designating goods and services in Classes 9, 14, 16, 18, 20, 25, 28 and 41:
– the Italian figurative mark reproduced below, registered on 30 November 2010 under No 1 380 680 and designating goods and services in Classes 9, 14, 16, 18, 20, 25, 28 and 41:
7 The opposition, in support of which Aeronautica Militare — Stato Maggiore relied on the grounds referred to in Article 8(1)(b) and Article 8(5) of Regulation No 207/2009, was directed against all the goods and services covered by the mark applied for and was based on all the goods and services covered by the earlier rights.
8 On 26 November 2012, the Opposition Division rejected the opposition in its entirety. For reasons of procedural economy, the Opposition Division compared only the earlier Community word mark FRECCE TRICOLORI (‘the earlier trade mark’) with the mark applied for and concluded that there was no likelihood of confusion. A fortiori, it held that there was no likelihood of confusion with regard to the other earlier trade marks listed in paragraph 6 above. The Opposition Division concluded that the requirements of Article 8(1)(b) and Article 8(5) of Regulation No 207/2009 were not met.
9 On 31 January 2013, Aeronautica Militare — Stato Maggiore 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 29 January 2014 (‘the contested decision’), the First Board of Appeal of OHIM: (i) annulled the Opposition Division’s decision in so far as it had rejected the opposition with regard to the goods in Classes 18 and 25 covered by the mark applied for, and thus upheld the opposition to that extent; (ii) rejected the trade mark application in respect of those goods; and (iii) dismissed the appeal as to the remainder.
11 Like the Opposition Division, the Board of Appeal decided to examine the likelihood of confusion with regard to the earlier trade mark. It considered that, for the goods in Classes 18 and 25 and the retail services in Class 35 connected with those goods and covered by the marks in question, the relevant public consisted of average consumers who were reasonably well informed and reasonably observant and circumspect, but that the advertising and business services in Class 35 were directed at extremely attentive professional consumers. It held that the goods in Classes 18 and 25 covered by the marks at issue were identical, and that the retail services in Class 35 covered by the mark applied for and relating to particular products were similar to a low degree to the goods in Classes 18 and 25 covered by the earlier trade mark, but that this was not the case for the retail services concerning certain other products, and that the other services in Class 35 covered by the mark applied for were not similar to the goods covered by the earlier trade mark. It considered that there was some visual and phonetic similarity between the signs in question and that, so far as the Italian-speaking public was concerned, there was also a certain degree of conceptual similarity between those signs. Consequently, it held that there was a likelihood of confusion between the marks at issue with regard to the goods in Classes 18 and 25, but not with regard to the services in Class 35 covered by the mark applied for, which were slightly or not at all similar to the goods covered by the earlier trade mark. Lastly, the Board of Appeal confirmed the rejection of the opposition to the extent that it was based on Article 8(5) of Regulation No 207/2009.
Procedure and forms of order sought
12 The applicant claims that the Court should:
– annul the contested decision to the extent that it annuls the Opposition Division’s decision and upholds the opposition;
– reject the opposition in its entirety;
– order OHIM to pay the costs.
13 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
14 The applicant requested leave, pursuant to Article 135a of the Court’s Rules of Procedure of 2 May 1991, to set out its views at a hearing and requested that the Court give a ruling following the oral procedure. The Court granted that request.
15 By order of the President of the Fifth Chamber of the General Court of 13 April 2015, the present case was joined to Cases T‑228/14 CBM v OHIM — Aeronautica Militare (TRECOLORE) and T‑365/14 CBM v OHIM — Aeronautica Militare (TRECOLORE) for the purposes of the oral procedure.
Law
16 The applicant seeks the annulment of the contested decision by relying on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
17 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
18 It is settled case-law that the risk that the public might believe that the goods or services in question come from the same undertaking or, as the case may be, from economically linked undertakings constitutes a likelihood of confusion (see, by analogy, judgments of 29 September 1998 in Canon, C‑39/97, ECR, EU:C:1998:442, paragraph 29, and 22 June 1999 in Lloyd Schuhfabrik Meyer, C‑342/97, ECR, EU:C:1999:323, paragraph 17). 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 the goods or services in question and taking into account all factors relevant to the circumstances of the case (see judgment of 9 July 2003 in Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, ECR, EU:T:2003:199, paragraphs 30 and 31 and the case-law cited).
19 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 13 September 2007 in Il Ponte Finanziaria v OHIM, C‑234/06 P, ECR, EU:C:2007:514, paragraph 48, and in GIORGIO BEVERLY HILLS, paragraph 18 above, EU:T:2003:199, paragraph 32).
20 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).
21 According to 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 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).
22 It is in the light of those considerations that the Court must assess whether the Board of Appeal was right to reject the Community trade mark application submitted by the applicant on the ground that there was a likelihood of confusion between the marks at issue.
23 As a preliminary point, the Court points out that the Board of Appeal, echoing the Opposition Division in that regard, carried out its assessment of the likelihood of confusion between the marks at issue by comparing the mark applied for with the earlier trade mark.
The relevant public
24 The Board of Appeal held that, having regard to the nature of the goods and services concerned, the relevant public was the average consumer in the European Union, deemed to be reasonably well informed and reasonably observant and circumspect.
25 In its criticism of the assessment of the likelihood of confusion carried out by the Board of Appeal, the applicant submits, relying on the judgment of 12 January 2006 in Ruiz-Picasso and Others v OHIM (C‑361/04 P, ECR, EU:C:2006:25, paragraph 39), that since the goods and services concerned are directed at the general public, consumers will display a high level of attention at the time of purchasing such goods, which fall within the fashion sector. In its view, in such a sector, the differences between the marks will be clearly perceived, recognised and remembered by consumers.
26 As OHIM observes in its defence, the case-law cited by the applicant is of no relevance, since the goods at issue in the case in question were motor vehicles, in respect of which — by reason of the high cost and highly technological nature of such goods — the relevant consumer displays a particularly high degree of attentiveness.
27 It follows from case-law that the degree of attentiveness of consumers when purchasing goods in Classes 18 and 25 is no more than average (see, to that effect, judgments of 19 June 2012 in H.Eich v OHIM — Arav (H.EICH), T‑557/10, EU:T:2012:309, paragraph 22, and 19 April 2013 in Hultafors Group v OHIM — Società Italiana Calzature (Snickers), T‑537/11, EU:T:2013:207, paragraph 23).
28 Therefore, the Board of Appeal was right to conclude that, with regard to the goods in Classes 18 and 25 covered by the marks in question, the relevant public, composed of average consumers in the European Union, was reasonably well informed and reasonably observant and circumspect.
The comparison of the goods
29 In the contested decision, the Board of Appeal found that the goods in Classes 18 and 25 covered by the mark applied for were identical to those in the same classes covered by the earlier trade mark.
30 It can be seen from the case-file that the opposition was based, in particular, on the earlier trade mark, which covered — inter alia — goods in Class 18 corresponding to the following description: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery’ and goods in Class 25 corresponding to the following description: ‘Clothing, footwear, headgear’. The aforementioned goods are identical to the goods in Classes 18 and 25 covered by the mark applied for (see paragraph 3 above).
31 Therefore, it must be held that the Board of Appeal was right to conclude that the goods which it had compared were identical.
The comparison of the signs
32 As a preliminary point, it should be noted — as OHIM has in its response — that the Board of Appeal focused on the Italian public in order to carry out a comparison of the marks in question, even if it did not explicitly say so in the contested decision. Where the earlier trade mark is a Community trade mark and the relevant territory for assessing the likelihood of confusion is thus the whole of the European Union, registration must be refused, taking into account the unitary character of the Community trade mark, even where the ground for refusal obtains in only part of the European Union (judgment of 3 March 2004 in Mülhens v OHIM — Zirh International (ZIRH), T‑355/02, ECR, EU:T:2004:62, paragraphs 34 to 36).
33 In general, the applicant considers that the Board of Appeal incorrectly assessed the similarity of the signs in question by taking into consideration only the element ‘tricolori’ of the earlier trade mark, thereby disregarding the significance of the element ‘frecce’ which is — according to the applicant — the dominant element in the earlier trade mark, since it is situated at the beginning of the sign, thereby attracting consumers’ attention. The applicant also notes that the word ‘frecce’, which means ‘arrows’ in Italian, has distinctive character, whereas the element ‘tricolori’ should have been regarded as a minor, negligible addition, being an adjective supplementing the description of the main element. Lastly, the applicant considers that a correct assessment of the similarity of the marks at issue should have led the Board of Appeal to find that those marks were dissimilar, as was recognised by the Opposition Division in two decisions relating to other proceedings between the applicant and its opponent.
34 First, the contested decision does not state that the Board of Appeal regarded the word ‘tricolori’ as the dominant element of the earlier trade mark. Instead, it held that there was a certain degree of visual and phonetic similarity between the signs in question, since the words ‘trecolore’ and ‘tricolori’ and the sounds produced in many languages when pronouncing them were almost identical (paragraphs 27 and 28 of the contested decision). It should also be noted that, having concluded that there was a certain degree of similarity between the signs in question, the Board of Appeal held that the degree of similarity was rather low in the present case, as it implicitly stated in its overall assessment of the likelihood of confusion by indicating that a lesser degree of similarity between the marks could be offset by a greater degree of similarity between the goods (paragraph 35 of the contested decision).
35 Secondly, although the applicant maintains that the word ‘frecce’ is the dominant element in the earlier trade mark on the ground that, being situated at the beginning of that mark, it is immediately perceived by consumers and is more likely to attract their attention, it must be pointed out that the fact that a term is situated at the beginning of a mark cannot, even if that term is more likely than the terms which follow it to attract the relevant public’s attention, result in that term dominating the overall impression conveyed to that public by a composite trade mark for the purposes of the judgment of 12 June 2007 in OHIM v Shaker (C‑334/05 P, ECR, EU:C:2007:333, paragraph 41 and the case-law cited) by virtue of that fact alone. Furthermore, a finding that there is a dominant element in a composite trade mark cannot lead to the assessment of the similarity of the marks at issue being carried out solely on the basis of that element unless all the other components of the composite trade mark are negligible (see, to that effect, judgment in OHIM v Shaker, cited above, EU:C:2007:333, paragraph 42), which the applicant has neither established nor clearly argued in the present case.
36 The dual fact that the word ‘frecce’ has distinctive character in view of its meaning for the Italian public, on which the Board of Appeal focused when comparing the marks (see paragraph 32 above) and that the word ‘tricolori’ is merely an adjective supplementing the description of the main element is not a sufficient basis for holding that the first of those terms is the dominant element of the earlier trade mark and that the second is negligible. It cannot therefore be claimed that the Board of Appeal erred in law in not comparing the signs at issue solely on the basis of the element ‘frecce’ of the earlier trade mark.
37 Thirdly, although the applicant relies on two Opposition Division decisions adopted in the context of other proceedings between itself and Aeronautica Militare — Stato Maggiore in order to argue that the Board of Appeal’s assessment regarding the similarity of the signs in question was incorrect, it must be pointed out that, since the principles of equal treatment and sound administration must be reconciled with observance of the principle of legality, a person who files an application for registration of a sign as a trade mark cannot rely, to his advantage and in order to secure an identical decision, on a possibly unlawful act committed to his benefit in other proceedings (see, to that effect, judgment of 10 March 2011 in Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, ECR, EU:C:2011:139, paragraphs 75 and 76). Moreover, for reasons of legal certainty and, indeed, of sound administration, the examination of any trade mark application must be stringent and full, in order to prevent trade marks from being improperly registered (judgment in Agencja Wydawnicza Technopol v OHIM, cited above, EU:C:2011:139, paragraph 77). That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (judgment in Agencja Wydawnicza Technopol v OHIM, cited above, EU:C:2011:139, paragraph 77). The applicant’s argument must therefore be rejected in so far as it is based on two previous decisions of the Opposition Division.
The visual similarity of the signs in question
38 In the contested decision, the Board of Appeal concluded that there was some visual similarity between the signs in question in so far as they shared the letter groups ‘tr’ and ‘color’, the word ‘trecolore’ which constitutes the mark applied for being almost identical to the word ‘tricolori’ which forms part of the earlier trade mark.
39 The applicant states that the sign Trecolore does not contain any element which is identical or similar to the element ‘frecce’ of the earlier trade mark, which contains sixteen characters as opposed to the nine in the mark applied for, and that the visual dissimilarity is increased by the visual difference between the vowels of the marks in question.
40 OHIM disputes the applicant’s arguments.
41 It is true that the mark applied for does not contain any element which is identical or similar to the element ‘frecce’ that appears in the earlier trade mark. However, the fact remains that the single word which constitutes the mark applied for comprises seven of the nine letters of the second word of that earlier trade mark, including, in particular, the first two letters. Furthermore, as the Board of Appeal found, it can be seen from an examination of the signs in question that there is a significant similarity between the terms ‘trecolore’ and ‘tricolori’ which is not undermined by the visual difference between the vowels.
42 The Board of Appeal was therefore right to conclude that there was a certain degree of visual similarity between the signs in question.
The phonetic similarity of the signs in question
43 In the contested decision, the Board of Appeal held that the pronunciation of the signs in question is the same as regards the sounds resulting from the letter groups ‘tr’ and ‘color’ and that, to that extent, those signs are phonetically similar, even if the pronunciation differs as regards the first element of the earlier trade mark, which is not present in the mark applied for, and as regards the vowel sequence of the shared element in the two marks. However, the Board of Appeal concluded that, in view of the fact that the sounds produced in many languages when pronouncing ‘trecolore’ and ‘tricolori’ are almost identical, there was some phonetic similarity between the marks at issue.
44 The applicant submits that the sign Trecolore does not contain any element which is identical or similar to the element ‘frecce’ as the signs in question differ considerably in terms of pronunciation, duration, rhythm and intonation. The signs also differ in terms of their length — six and three syllables respectively — and vowel arrangement, as the signs share only two of the six vowels from the earlier trade mark. The applicant considers that, even assuming that the pronunciation can be said to be similar, such similarity can be observed only between the second element of the earlier trade mark and the word ‘trecolore’, which differ due to their vowels, generally the most important elements in a word.
45 OHIM disputes the applicant’s arguments.
46 Although the Board of Appeal acknowledged that the first element of the earlier trade mark did not appear in the mark applied for, that the words ‘trecolore’ and ‘tricolori’ did not contain the same vowels and that it is common ground that the signs in question also differ in terms of their length (whether measured in characters, letters or syllables), it must be found that there is a phonetic similarity between those signs. First, the pronunciation of the signs in question is the same as regards the sounds resulting from the letter groups ‘tr’ and ‘color’, meaning that, to that extent, they are identical. Secondly, as the Board of Appeal noted, the pronunciation of the words ‘trecolore’ and ‘tricolori’ in numerous languages would produce an almost identical phonetic impression. Thirdly, the absence of the word ‘frecce’ in the mark applied for has no impact on the assessment of the degree of phonetic similarity, given the similarity between the phonetic impression resulting from the pronunciation of the mark applied for and that resulting from the pronunciation of the second element of the earlier trade mark.
47 Therefore, it must be found that there is an average level of phonetic similarity between the signs in question, rather than a certain degree of similarity as was held by the Board of Appeal.
The conceptual similarity of the signs in question
48 In the contested decision, the Board of Appeal took account of the fact that the words constituting the earlier trade mark mean ‘three-coloured arrows’ in Italian, that the word ‘tricolori’ will be associated with the Italian flag and that the mark applied for might be perceived as a misspelling of the expression ‘tre colori’, meaning ‘three colours’ in Italian. In view of the reference to three colours and, thus, the Italian flag, the Board of Appeal concluded that the signs in question were conceptually similar for the Italian-speaking public.
49 According to the applicant, the Board of Appeal erred in taking account of only the element ‘tricolori’ in order to assess the conceptual similarity of the signs in question. Given the meaning of the word ‘frecce’, it is unlikely that the earlier trade mark would be associated with the Italian flag or with any other flag. The applicant states that the earlier trade mark will be associated with the identically-named acrobatic demonstration team of the Italian Air Force, but the same will not be true of the mark applied for. It submits that Italian-speaking consumers will associate the earlier trade mark with the image of arrows without establishing a connection with the trade mark Trecolore. It also argues that the conceptual differences are such as to offset the visual and phonetic similarities.
50 OHIM disputes the applicant’s arguments.
51 If it is true that, as the applicant claims, the expression ‘frecce tricolori’ refers to the acrobatic demonstration team of the Italian Air Force and that, accordingly, the earlier trade mark will certainly be associated — at least by the Italian public — with that group, such a finding permits the assumption that — at least for that public — the earlier trade mark will be associated with the Italian flag which is also (in a stylised form) an element of the Community figurative mark and the national figurative mark on which the opponent also based its opposition (see paragraph 6 above). As regards the mark applied for — Trecolore — the applicant does not challenge the Board of Appeal’s assessment that the Italian public may perceive that mark as the result of a misspelling of the Italian expression ‘tre colori’ and thus as indirectly referring to a flag, more specifically that of Italy. Such an assessment appears entirely plausible and cannot be called in question by the mere assertion that the relevant public will not associate the mark applied for with the acrobatic demonstration team of the Italian Air Force.
52 It must therefore be found that there is a conceptual similarity between the signs in question, it being necessary to reject the argument that the conceptual differences between the signs are such as to offset their visual and phonetic similarities, since the mark applied for refers to the same concept as that conveyed by the earlier trade mark, in the present case, three colours and, consequently, the Italian flag.
The likelihood of confusion
53 For the purposes of assessing the likelihood of confusion, the Board of Appeal first of all held that, in the absence of any evidence of use of the earlier trade mark or of distinctiveness acquired through use, it was necessary to ascribe normal distinctiveness to that mark. Next, it held, having regard to the fact that the goods in question were identical and that there was a certain degree of similarity between the marks at issue, that the use of similar trade marks in respect of such goods was likely to cause confusion among reasonably attentive consumers, and, accordingly, upheld the opposition with regard to the goods in Classes 18 and 25.
54 Having regard to the nature of the goods and services concerned, which fall within the fashion sector, the applicant notes that: (i) consumers display a high level of attention when purchasing those goods or services; (ii) the relevant public is that of the European Union; (iii) the marks at issue are of average distinctiveness; and (iv) the signs in question are dissimilar, which rules out any likelihood of confusion. The applicant submits that consumers will not confuse a sign which conveys a fairly simple word combination with a sign which has no clear or specific meaning.
55 OHIM disputes the applicant’s arguments.
56 First, regarding the composition of the relevant public and its level of attention, the Board of Appeal, as stated in paragraphs 24 to 28 above, rightly concluded that the relevant public was composed of average consumers in the European Union and that that public was reasonably well informed and reasonably observant and circumspect. Consequently, it is necessary to reject the applicant’s arguments in that regard.
57 Secondly, in maintaining that the marks at issue are of average distinctiveness, the applicant is not in a position to call in question the legality of the contested decision. The assessment carried out by the Board of Appeal must be upheld.
58 Thirdly, it can be seen from paragraphs 38 to 52 above that, contrary to the applicant’s assertions, the Board of Appeal was right to consider that the signs in question were similar to a certain degree.
59 Fourthly, the argument that consumers will not confuse a sign which conveys a fairly simple word combination with a sign which has no clear or specific meaning cannot alter the finding, referred to in paragraph 58 above, that there is a certain degree of similarity between the signs in question.
60 Therefore, the Board of Appeal was right to conclude in the contested decision that there was a likelihood of confusion between the marks at issue.
61 Consequently, the single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009 must be rejected and, accordingly, the action must be dismissed in its entirety as unfounded, without it being necessary to give a ruling on the admissibility of the head of claim seeking the rejection of the opposition.
Costs
62 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 form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders CBM Creative Brands Marken GmbH to pay the costs.
Dittrich | Schwarcz | Tomljenović |
Delivered in open court in Luxembourg on 7 October 2015.
[Signatures]