JUDGMENT OF THE GENERAL COURT (Third Chamber)
4 June 2013 (*)(1)
(Community trade mark – Opposition proceedings – Application for Community word mark BETWIN – Earlier Community figurative mark b’Twin – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑514/11,
i-content Ltd Zweigniederlassung Deutschland, established in Berlin (Germany), represented by A. Nordemann, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Decathlon SA, established in Villeneuve-d’Ascq (France),
ACTION brought against the decision of the First Board of Appeal of OHIM of 30 June 2011 (Case R 1816/2010‑1), relating to opposition proceedings between Decathlon SA and i-content Ltd Zweigniederlassung Deutschland,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 28 September 2011,
having regard to the response lodged at the Court Registry on 29 November 2011,
having regard to the written questions put to OHIM by the Court and the reply to those questions, lodged at the Court Registry on 4 October 2012,
having regard to the applicant’s observations on that reply, lodged at the Court Registry on 30 October 2012,
having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur and pursuant to Article 135a of the Rules of Procedure of the Court, to give a ruling without an oral procedure,
gives the following
Judgment
Background to the dispute
1 On 1 October 2008, the applicant, i-content Ltd Zweigniederlassung Deutschland, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2 The trade mark for which registration was sought is the word sign BETWIN.
3 The goods in respect of which registration was applied for fall within, inter alia, Classes 25, 26 and 28 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 Classes 25 and 28, the only classes relevant for this action, to the following description:
– Class 25: ‘Wet suits; footwear; uniforms; belts [clothing]; boxer shorts; soles for footwear; golf shoes; slacks; wedding dresses; cardigans; sweat-bands; rain boots; baseball caps; rainwear; Tennis shoes; lingerie; collars; stockings; outerclothing; blousons; ear muffs; briefs; gymnastic shoes; motorists’ clothing; turbans; gaiters; braces; woolly hats; nightwear; headgear; tips for footwear; bandanas (scarves); ready-made clothing; sports shoes; underwear; golf shirts; layettes; beach shoes; trench coats; berets; trainers; leather clothing; ladies’ dresses; negligees; bath sandals; corselets; waistcoats; leather shoes; bow ties; bath slippers; sleeping masks; hat frames (skeletons); studs for football boots (shoes); bathrobes; caps; breeches (for wear); money belts [clothing]; lingerie; brassieres; chasubles; skull caps; fittings of metal for shoes and boots; cuffs; cap peaks; slippers; leggings; knitwear [clothing]; dressing gowns; sports shoes; tuxedos; pyjamas; mules; shorts; overcoats for men and women; shoes for bicycles; handkerchiefs; wet suits for water skiing; heels; leggings; snow suits; dresses; pullovers; petticoats; layettes (clothing); blazers; leotards; sweatshirts; underwear; shirts; sneakers; clothing for children; beach clothes; teddies [undergarments]; trousers; smocks; parkas; galoshes; maillots; ties; socks and stockings; clothing for gymnastics; underwear; girdles; lace boots; kimonos; stuff jackets [clothing]; sports shirts; bathing caps; clothing, footwear, headgear; bikinis; jogging suits; polo shirts; ski pants; suits; garters; shoes; iron fittings for shoes; windbreakers; bathing trunks; mountaineering boots; scarves, sashes for wear; football boots; hats; mantles; studs for football boots [shoes]; veils [clothing]; ski boots; skirts; clothing made from imitations of leather; masquerade costumes; gloves; sweaters; blouses; riding boots; clothing; swimming costumes; furs [clothing]; moccasins; mantillas; jump suits; dungarees; stoles; ski boots; athletic footwear; raincoats; breeches [for wear]; ski suits; sun visors; headbands; hoods; scarves; boots; peignoirs; jackets; visors; corsets; carnival costumes; inner soles; nightshirts; underwear; undershirts; ascots; dress handkerchiefs; overshoes; t-shirts; underpants; tracksuits; bodices (lingerie); sandals; singlets; cyclists’ clothing; jeans; sleepwear; overcoats; leg warmers; coats; pyjamas (am); tights; shower caps; sports jackets; Men’s socks; aprons; detachable collars; Bermuda shorts; beachwear; wristbands; fishermen’s smocks (fishing vests); mittens; ankle boots; mittens’;
– Class 28: ‘Billiard cues; inflatable swimming pools for recreational use; jungle gyms (play equipment); fencing masks; tennis nets; swim fins; skating boots with skates attached; stuffed plush animals; inline skates; sport balls; toy vehicle tracks; netballs; exercisers (expanders); apparatus for gymnastics; starting blocks (for sports); masts for surfboards; swimming pools [toys]; dumb-bells; air pistols [toys]; shuttlecocks; hand-held electronic video games; billiard tables; spring boards (sporting articles); ski bindings; coin-operated billiard tables; toy vehicles; table tennis bats; toy models; fencing gauntlets; soccer balls; electronic hand-held game units; counters for games; paragliders; elbow guards [sports articles]; elbow pads (sporting articles); billiard cues; draughtboards; archery implements; jump ropes; checkers [games]; tables for indoor football; hang gliders; playground apparatus; body-building apparatus; Bags adapted for carrying sporting articles; shin guards [sports articles]; nets for sports; protective pads (sports equipment); mechanical action toys; playthings, except playthings for pets; golf gloves; water skis; Bowling balls; paintballs; weightlifting belts (sporting articles); jigsaws; surf skis; archery implements; fencing weapons; electronic games; toy balloons; dice; novelties for parties, dances (party favours); hand-held electronic games; game cards; pinball-type games; masts for surfboards; fishing tackle; balls for games; rubber action balls; inflatable mattresses for recreational use; paddle ball games; ice skates; boxing gloves; cups for dice; printing toys; foils for fencing; billiard table cushions; question sets for board games; volley balls; bingo card; model aircraft; skittles; dominoes; decorative wind socks; pinball machines; ski covers; skill and action games; nets for ball games; parlour games; slot machines, automatic; pinball machines (coin or non-coin operated); landing nets for anglers; punching balls; paragliders; snowshoes; kickboard flotation devices for recreational use; scale model aeroplanes; golf clubs; soccer goals; squash rackets; tables for indoor football; swimming floats; balls for games; bats for games; shin guards (sporting articles); card games; skateboards; ski poles; flying disks; playing balls; games; surfboards; cups for dice; dolls; tables for table tennis; skittles (games); golf balls; bob-sleighs; remote-control vehicles (toys); ski and snowboard bags, shaped; roulette wheels; camouflage screens (sporting articles); knee pads (sporting articles); wrist and ankle weights for exercise; quoits; darts; clay pigeon traps; scale-model vehicles; sledges; climbing belts (sporting articles); slot machines, automatic; chess; toy masks; puzzles; manually-operated exercise equipment; stuffed toys; golf bags; hand-held computer games; darts; appliances for gymnastics; toy aircraft; sailboards; protective paddings [parts of sports suits]; ski bindings; tossing disc toys; softball bats; clay pigeons (targets); baseball gloves; bats; skis; harpoon guns (sporting articles); tappets; teddy bears; hand held video games; starting blocks for sport; billiard balls; baseball bats; gymnastic parallel bars; electronically-operated toy motor vehicles; battery operated toys; softball gloves; gymnastic and sporting articles not included in other Classes; straps for surfboards; gaming chips; targets; stuffed toy bears; inflatable toys; roller skates, in-line skates; board games; swings; kites; stationary exercise bicycles; knee guards [sports articles]; model cars’.
4 The Community trade mark application was published in Community Trade Marks Bulletin No 49/2008 of 9 December 2008.
5 On 9 March 2009, Decathlon SA filed a notice of opposition to registration of the mark applied for, pursuant to Article 42 of Council Regulation No 40/94 (now Article 41 of Regulation No 207/2009), in respect of the goods referred to in paragraph 3 above.
6 The opposition was based inter alia on the earlier Community figurative mark, lodged on 13 March 2008, under number 6780951, and registered on 11 May 2011, which is reproduced below:
7 The goods covered by the earlier mark are, inter alia, in Classes 25 and 28 and correspond, for each of those Classes, to the following description:
– Class 25: ‘Clothing, footwear (except orthopaedic footwear) and headgear, sportswear, headbands, wristbands, footwear (except orthopaedic footwear), sporting footwear, lace-up shoes, footwear with hook and loop fastenings, shoe covers, headgear, caps, hats, underwear, jackets, gloves (clothing), waterproof clothing, socks, shorts, tee-shirts, jumpers, tracksuits, singlets’;
– Class 28: ‘Gymnastic and sporting articles (other than clothing, footwear and mats)’.
8 The ground relied on in support of the opposition was that specified in Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009).
9 On 21 July 2010, the Opposition Division upheld the opposition in part by rejecting the Community trade mark application in respect of all the goods in Classes 25 and 28, but by granting the application in respect of the goods in Class 26.
10 On 21 September 2010, the applicant filed an appeal with OHIM, under Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
11 By decision of 30 June 2011 (‘the contested decision’), the First Board of Appeal of OHIM dismissed the appeal. In particular, it considered that, given the type of goods at issue, the relevant public consisted of the public at large. With respect to the comparison of the goods, the Board of Appeal noted that the parties had not contested the Opposition Division’s conclusion. The Board of Appeal therefore endorsed the Opposition Division’s analysis as regards, first, the dissimilarity between the goods in Class 26 covered by the mark applied for and the goods in Classes 25 and 28 covered by the earlier mark and, second, the identity of the goods in Class 25 covered by the mark applied for and the earlier mark and the identity of or similarity between the goods in Class 28 covered by the mark applied for and the earlier mark. With respect to the visual comparison, the Board of Appeal found that the signs at issue were visually similar. It also considered that the marks were phonetically identical and conceptually similar. It therefore concluded that the signs at issue were similar because the visual dissimilarities, which are due to the figurative element of the earlier mark, could not counterbalance the phonetic identity and the visual and conceptual similarities. Considering globally the likelihood of confusion, the Board of Appeal took the view that there was such a likelihood among the relevant public of the European Union as regards the contested goods in Classes 25 and 28.
Forms of order sought
12 The applicant claims that the Court should:
– annul the decision contested;
– reject the opposition;
– order OHIM to pay the costs.
13 OHIM contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay the costs.
Law
Admissibility of the applicant’s second head of claim
14 It is necessary to examine the admissibility, contested by OHIM, of the applicant’s second head of claim seeking rejection of the opposition. OHIM submits that that head of claim is inadmissible since in reality the applicant is asking by that head of claim that an order be issued from the Court to OHIM, which is not within the powers of the Court.
15 This argument cannot succeed. Contrary to OHIM’s submissions, in reality that head of claim asks the Court to take the decision which, in the applicant’s submission, the Board of Appeal should have taken when it was seised of the case. It is apparent from the second sentence of Article 64(1) of Regulation No 207/2009 that the Board of Appeal may annul the decision of the OHIM department which was responsible for the contested decision and exercise any power within the competence of that department, in the present case rule on the opposition and reject it. Consequently, that measure falls within those which may be taken by the General Court in the exercise of its power to alter decisions under Article 65(3) of Regulation No 207/2009 (see, to that effect, Case T‑504/09 Völkl v OHIM – Marker Völkl (VÖLKL) [2011] ECR II‑0000, paragraph 40 and the case-law cited).
16 The applicant’s second head of claim is therefore admissible.
The application for annulment
17 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
18 OHIM disputes the merits of that plea.
19 As set out in Article 8(1)(b) of Regulation No 207/2009, 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 because of the identity or similarity of the goods covered by the two 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.
20 According to settled case-law, the risk that the public may believe that the goods in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods in question 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 designated (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraphs 30 to 33 and the case-law cited).
21 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 which they cover are identical or similar. Those conditions are cumulative (Case T‑316/07 Commercy v OHIM – easyGroup IP Licensing (easyHotel) [2009] ECR II‑43, paragraph 42 and the case-law cited).
22 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it should be noted that, for a Community trade mark not to be registered, it suffices that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 207/2009 exists in part of the European Union (see, by analogy, Joined Cases T‑81/03, T‑82/03 and T‑103/03 Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and Others) [2006] ECR II‑5409, paragraph 76 and the case-law cited).
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) [2007] ECR II‑449, paragraph 42 and the case-law cited).
24 In the present case, the Board of Appeal found, in paragraph 17 of the contested decision, that, since the earlier mark is a Community trade mark, the territory where the likelihood of confusion must be examined is the European Union. Moreover, given the type of goods at issue, it took the view that the public in relation to whom the likelihood of confusion must be assessed is the public at large.
25 That assessment by the Board of Appeal, which is not called in question by any material in the case‑file and which, moreover, the applicant does not contest, must be upheld.
The comparison of the goods
26 According to settled case-law, in order to assess the similarity of the goods in question, all the relevant factors relating to those goods should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see Case T‑443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [2007] ECR II‑2579, paragraph 37 and the case-law cited).
27 The Board of Appeal upheld the Opposition Division’s findings that the goods at issue in Classes 25 and 28 covered by the mark applied for and the earlier mark are identical or similar. It is therefore necessary to examine the Opposition Division’s analysis, set out in paragraph 10 of the contested decision, in accordance with the case‑law according to which, when the Board of Appeal confirms a lower-level decision of OHIM in its entirety, that decision, together with its statement of reasons, forms part of the context in which the Board of Appeal’s decision was adopted, which is known to the parties and enables the Court to carry out fully its judicial review as to whether the Board of Appeal’s assessment was well founded (Case T‑304/06 Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart) [2008] ECR II‑1927, paragraph 47). With respect to the contested goods in Class 25, the Opposition Division concluded that, as the earlier mark is registered, among others, for the class heading in Class 25, it is deemed to cover all goods that are to be classified in Class 25 and that, therefore, the contested goods in that class are identical. As regards the contested goods in Class 28, the Opposition Division took the view that ‘gymnastic and sporting articles (other than clothing, footwear and mats)’, covered by the mark applied for, are protected identically by the earlier mark. The Opposition Division took the view that the other contested goods in Class 28 are various kinds of sporting and gymnastic articles and various games and playthings. In that regard, the Opposition Division took the view that, since the earlier mark protects ‘gymnastic and sporting articles’, the goods covered by that mark are similar to all the goods covered by the mark applied for, because they share the same purpose, the same distribution channels and the same end users.
28 With respect to the goods in Class 25, the applicant does not contest the Board of Appeal’s analysis. Since there is nothing in the case‑file which calls into question the identity of the goods at issue so far as concerns that class, the Board of Appeal’s analysis must be upheld with respect to those goods.
29 It is necessary to draw a distinction as regards the goods in Class 28.
30 First, it is necessary to examine the applicant’s argument that there are substantial differences between ‘gymnastic and sporting articles (other than clothing, footwear and mats)’, covered by the earlier mark, and a category of articles consisting of toys, games and playthings, covered by the mark applied for.
31 In that regard, the applicant refers to the goods in Class 28 covered by the mark applied for corresponding to the following description: ‘inflatable swimming pools for recreational use; jungle gyms (play equipment); stuffed plush animals; swimming pools [toys]; air pistols [toys], hand-held electronic video games; toy vehicles; toy models; electronic hand-held game units; counters for games; checkers [games]; playground apparatus; mechanical action toys; playthings, except playthings for pets; electronic games; toy balloons; dice; novelties for parties, dances (party favours); hand-held electronic games; game cards; pinball-type games; cups for dice; printing toys; question sets for board games; bingo card; model aircraft; skittles; dominoes; decorative wind socks; pinball machines; skill and action games; parlour games; slot machines, automatic; pinball machines (coin or non-coin operated); scale model aeroplanes; card games; flying disks; playing balls; games; cups for dice; dolls; skittles (games); remote-control vehicles (toys); quoits; darts; clay pigeon traps; scale‑model vehicles; sledges; slot machines, automatic; chess; toy masks; puzzles; stuffed toys; hand-held computer games; darts; toy aircraft; tossing disc toys; clay pigeons (targets); tappets; teddy bears; hand‑held video games; electronically-operated toy motor vehicles; battery operated toys; gaming chips; targets; stuffed toy bears; inflatable toys; board games; swings; kites; model cars’.
32 The applicant submits that gymnastic and sporting articles, on the one hand, and toys, games and playthings as listed in paragraph 31 above, on the other hand, are different goods. Moreover, in its submission, they are usually not sold in the same specialist stores: gymnastic and sporting articles are sold in sports stores and special sports departments of department stores, whereas toys, games and playthings are usually sold in toy stores or the toy departments of department stores. The applicant adds that gymnastic and sporting articles, on the one hand, and toys, games and playthings, on the other hand, are also usually manufactured and distributed by different companies. Large manufacturers of gymnastic and sporting articles like Adidas, Puma or Nike usually do not also manufacture and distribute toys, games and playthings, while large toy manufacturers, like Mattel, Hasbro, Bandai, Lego, Playmobil or Steiff do not manufacture and distribute any gymnastic and sporting articles. The applicant infers from this that it should have been obvious to the Board of Appeal that there are substantial differences between gymnastic and sporting articles, on the one hand, and toys, games and playthings, on the other hand, which must lead to the conclusion that there is at most a low degree of similarity.
33 In that regard, it must be observed that the Opposition Division’s analysis, which was upheld by the Board of Appeal, with respect to the similarity between gymnastic and sporting articles (category to which the goods in Class 28 covered by the earlier mark belong) and toys, games and playthings (category to which the goods in Class 28 covered by the mark applied for and identified in paragraph 31 above belong) is based, in essence, on several factors: the same purpose of those goods, the fact that they share the same distribution channels and that the end users are the same.
34 With respect to the Opposition Division’s argument that the category of gymnastic and sporting articles is generally aimed at the same users as toys, games and playthings, it must be stated that, since the goods at issue at are aimed at the public at large, such an assertion does not constitute a significant factor in assessing the similarity between the goods (see, to that effect, Case T‑169/03 Sergio Rossi v OHIM – Sissi Rossi (SISSI ROSSI) [2005] ECR II‑685, paragraph 56).
35 As regards the alleged identical purpose or intended purpose of the goods at issue, it must be stated that neither the contested decision nor the Opposition Division’s decision contains any information in that regard. In reply to the written questions put by the Court, OHIM submitted that there is a certain fluid transition between sporting articles, on the one hand, and games, on the other. OHIM explained inter alia that sporting articles can be used for games and that certain games can also be sporting articles. OHIM added that many sporting articles are offered in simplified form as playthings, such as balls, rackets, nets or other equipment. In its submission, it may be difficult to make a distinction in individual cases.
36 That line of argument is not convincing, since a certain fluid transition between two categories of goods is not a sufficient condition for a finding that the goods concerned have the same intended purpose for the purposes of the case-law set out in paragraph 26 above. Even if it cannot be ruled out that, for certain gymnastic and sporting articles, on the one hand, and certain toys, games and playthings, on the other, a link can be drawn in so far as certain sporting articles can be used for games and certain games can also be sporting articles, in the absence of precise information from the OHIM bodies as to the specific goods concerned and as regards the manner in which those goods might be affected, such an assumption does not call in question the fact that the intended purpose of those two categories of goods is essentially different. Even if, by their nature, those two categories of goods are meant to entertain the public, they also serve other purposes. As the applicant rightly submits, gymnastic and sporting articles are intended to train the body through physical exercise, whereas toys, games and playthings are intended first and foremost to entertain their users.
37 With respect to the question whether the two categories of goods at issue share the same distribution channels, OHIM states before the Court that it is possible that gymnastic and sporting articles may be aimed at children in the form of toys or other playthings, or be produced as complementary products for games, so that they can be produced by the same undertakings and offered through the same distribution channels.
38 However, such marginal phenomena cannot, without other evidence in support, lead the Court to take the view that those two categories of goods share the same distribution channels. As the applicant submits, they are categories of goods which are generally manufactured by specialist undertakings and are sold in specialist stores. Admittedly, like all types of other goods, they can now be found in large retail stores. However, in such sales points, both gymnastic and sporting articles and toys, games and playthings are sold in specialist departments which, even though they may be close, are none the less separate.
39 It follows from the foregoing that, contrary to the Opposition Division’s conclusion, endorsed by the Board of Appeal, the toys, games and playthings mentioned in paragraph 31 above are not similar to ‘gymnastic and sporting articles (other than clothing, footwear and mats)’ covered by the earlier mark. The contested decision is thus vitiated by an error in that regard.
40 Second, it must be stated that the applicant does not contest that the goods in Class 28 covered by the mark applied for, other than the toys, games and playthings mentioned in paragraph 31 above, constitute various kinds of gymnastic and sporting articles which are identical or similar to ‘gymnastic and sporting articles (other than clothing, footwear and mats)’ covered by the earlier mark. With respect to the goods in Class 28 covered by the mark applied for, other than the toys, games and playthings mentioned in paragraph 31 above, it is therefore necessary to validate the Opposition Division’s finding, which was upheld by the Board of Appeal, that the goods are similar or even identical.
41 With the exception of the goods in Class 28 mentioned in paragraph 31 above, it is therefore necessary to uphold the Board of Appeal’s finding that the goods in Classes 25 and 28 covered by the marks at issue are identical or similar.
The comparison of the signs
42 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of marks by the average consumer of the goods in question plays a decisive role in the global assessment of that likelihood. In that regard, 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 [2007] ECR I‑4529, paragraph 35 and the case-law cited).
43 The 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 (see OHIM v Shaker, paragraph 41 and the case-law cited). 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 (OHIM v Shaker, paragraph 42, and judgment of 20 September 2007 in Case C‑193/06 P Nestlé v OHIM, not published in the ECR, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public keep in their minds, so that all the other components are negligible in the overall impression created by that mark (Nestlé v OHIM, paragraph 43).
44 The applicant submits, in essence, that the Board of Appeal failed to take account of certain visual, phonetic and conceptual differences between the two marks at issue.
45 In the present case, the Board of Appeal found at paragraph 19 of the contested decision that the contested mark is a word mark, and the earlier mark a complex mark. It found that, within that earlier mark, the dominant element is the expression ‘b’twin’, since the figurative element consisting of a cyclist riding on a bicycle which is represented by the capital letter ‘T’ is only of low distinctive character for some of the goods at issue, in particular sporting goods, because it establishes a connection with cycling.
46 That analysis must be upheld. With respect to the earlier mark, it should be borne in mind that the average consumer will more readily refer to the goods in question by citing the name of the mark so that the word element prevails over the figurative element (see, to that effect, Case T‑312/03 Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE) [2005] ECR II‑2897, paragraph 37). Moreover, the figurative element in the present case is of an abstract nature which does not make it possible easily to identify it as representing a cyclist. The figurative element within the earlier mark must therefore be considered either to be descriptive for the goods of the mark applied for connected with sports, or to be meaningless for the other goods. Accordingly, it is necessary to focus, for the purposes of the comparison with the word mark applied for, on the word element of the earlier composite mark, even if, in the light of the case-law recalled in paragraph 43 above, the figurative element cannot be ignored, as indeed the Board of Appeal recognised in paragraph 19 of the contested decision.
47 With respect, in the first place, to the visual comparison of the signs, the Board of Appeal found, in paragraph 20 of the contested decision, that the signs coincide as a result of the letters ‘b’, ‘t’, ‘w’, ‘i’ and ‘n’ and that the word element ‘b’twin’ of the earlier mark is wholly comprised in the sign BETWIN. The Board of Appeal concluded from this that there is visual similarity between the signs.
48 In that regard, the applicant submits that, if one considers the overall impression of the earlier mark, it is obvious that its figurative elements are meant to emphasise the letters and word elements in a certain way. The applicant states that the lower-case letter ‘b’ is followed by an apostrophe, which itself is followed by a capital letter ‘T’. This capital letter ‘T’ receives additional attention by the drawing of a cyclist ‘sitting’ on the ‘T’ as if on a bicycle. Because of the additional lower-case letters ‘w’ ‘i’ and ‘n’ which follow the capital letter ‘T’, the visual impression of the earlier mark is that of a ‘b’ which is separated by an apostrophe and which is followed by the separate word ‘twin’. In contrast, in the applicant’s submission, the mark applied for consists of a single word, ‘betwin’, which appears as one word although in its overall impression the average consumer will notice that it is composed of two syllables, namely ‘bet’ and ‘win’. The applicant concludes that the Board of Appeal was wrong to consider that there is visual similarity.
49 As regards the visual comparison, it must be recalled, first of all, that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see Case T‑359/02 Chum v OHIM – Star TV (STAR TV) [2005] ECR II‑1515, paragraph 43 and the case-law cited).
50 Next, the Court observes, as, in essence, the Board of Appeal did, that the presence, in the two signs at issue, of the letters ‘b’, ‘t’, ‘w’, ‘i’ and ‘n’ in the same order, and the fact that the sequence of those letters of which the mark applied for is composed is wholly comprised in the sign BETWIN, are considerations which justify the conclusion that the signs are visually similar, despite the presence of some differentiating elements between the marks at issue, namely the replacement of the ‘e’ by an apostrophe and the presence of the figurative element surrounding the capital letter ‘T’ in the earlier mark. The applicant acknowledges itself that the figurative element of the earlier mark accentuates the word element ‘twin’.
51 With respect, in the second place, to the phonetic comparison, the Board of Appeal found, in paragraph 21 of the contested decision that, since the signs at issue consist of English words, they will be pronounced in accordance with the rules of the English language, in particular as the English word ‘between’, in one word. The Board of Appeal also admitted that the signs at issue might be pronounced as the sequence of the words ‘be’ and ‘twin’ by a part of the relevant public, whilst taking the view that the English word ‘twin’ is less likely to be recognized by a majority of the relevant public in the European Union who will not be inclined to split the marks into two word elements, one of which is unknown to it. Lastly, the Board of Appeal found it very unlikely that a part of the relevant public in the European Union might pronounce the contested mark as the sequence of the English words ‘bet’ and ‘win’, because this interpretation has no relationship with the market sector at issue and the applicant did not give any convincing reasons in support of the argument that the message the mark conveys is ‘bet and win’. The Board of Appeal therefore concluded that the signs at issue are phonetically identical.
52 The applicant submits that the signs are phonetically different. With respect to the earlier mark, the applicant disputes the Board of Appeal’s analysis that the relevant public would not recognise the English word ‘twin’, and submits that that assessment is mere speculation without any basis in fact. In its submission, the English word ‘between’ is as much a part of the basic English vocabulary as the word ‘twin’, and certainly as much as the words ‘bet’ and ‘win’. The applicant submits, moreover, that in assessing the overall phonetic impression of the earlier mark, the Board of Appeal ignored the presence of the apostrophe. In the applicant’s submission, that apostrophe has the function of breaking the mark into two parts, namely into ‘b’ and ‘twin’, which is also emphasised by the graphic element. As the word ‘twin’ is clearly recognisable as this word and is never pronounced ‘tween’, the assessment of the Board of Appeal that the average consumer might pronounce the earlier mark as the English word ‘between’ is, in the applicant’s opinion, highly unlikely.
53 With respect to the mark applied for, the applicant observes that it is likely to be pronounced as one word with two syllables, ‘bet’ and ‘win’. In support of its argument that it is rather likely that the average consumer will recognize the words ‘bet’ and ‘win’, because those two words also are part of the basic English vocabulary and are certainly known to the average consumer, the applicant relies on the judgment in Case T‑258/09 i-content v OHIM (BETWIN) [2011] ECR II‑0000, paragraph 32). In that regard, it states that it is hard to understand why its Community trade mark application BETWIN was rejected, in respect of services designed to offer bets or games played for money, because that mark BETWIN was regarded as descriptive on the basis of the assumption that the relevant trade circles directly understood the hidden meaning behind the mark BETWIN as referring to the concept ‘bet and win’, while, in the present case, the Board of Appeal found that the mark BETWIN does not convey such a message. Lastly, in the applicant’s submission, it is unlikely that that the average consumer might pronounce the mark applied for as the English word ‘between’.
54 In that regard, first, it must be stated that the applicant correctly points out certain inconsistencies in the Board of Appeal’s reasoning. If one adopts the Board of Appeal’s analytical approach of pronunciation in accordance with the English language, which therefore involves taking into account the part of the relevant public which has at least some familiarity with that language, it cannot be concluded that the word elements of the marks at issue would be pronounced in a manner identical to that of the English word ‘between’. In that regard, the applicant is right to claim that the pronunciation of the ‘twin’ or ‘win’ part of the word elements will not be stressed, namely as in the terms ‘tween’ or ‘ween’. Such pronunciation can be envisaged only if one places oneself in the position of the - admittedly not insignificant - part of the relevant public with a very limited knowledge of the rules of pronunciation of the English language. Moreover, in that regard, it is also not possible to uphold the part of the Board of Appeal’s reasoning according to which the English word ‘twin’ is less likely to be recognised by a part of the relevant public. The applicant correctly states that ‘twin’ is as much a part of the basic English vocabulary as the words ‘between’, ‘bet’ or ‘win’. Furthermore, in the context of the phonetic comparison of the signs at issue, their meaning should be disregarded, since such considerations are relevant to the conceptual comparison which will be examined below. The arguments of the Board of Appeal and of the applicant in that regard, in particular the reference to the meaning of the mark applied for in the light of the judgment in BETWIN, will therefore be considered in the context of the conceptual comparison of the signs examined below.
55 Second, with respect to the pronunciation of the earlier mark, OHIM and the applicant rightly state that account should be taken of the apostrophe which separates the letter ‘b’ and the word ‘twin’. Because of the presence of the apostrophe, and because the first element is a single letter, it is indeed more likely than not that those two elements will be pronounced separately, with a short pause between them. The earlier sign will thus be pronounced, by the part of the relevant public having some familiarity with the English language and its pronunciation, as ‘be’ and ‘twin’, since those two elements are easily identifiable.
56 With respect to the mark applied for, it cannot be ruled out that a part of the relevant public having some familiarity with the English language will also pronounce it as ‘be’ ‘twin’, given that those words are clearly identifiable. As regards the applicant’s argument that the mark applied for will instead be pronounced as the sequence of the words ‘bet’ and ‘win’, even if such pronunciation cannot be ruled out, there is no evidence to suggest that, from a phonetic point of view, that pronunciation is more obvious than that which breaks down the composite term into two syllables, ‘be’ and ‘twin’. Lastly, with respect to the possibility of pronunciation in a manner identical to that of the English word ‘between’, it cannot be ruled out that a part of the relevant public, having only a basic knowledge of the English language and being less familiar with its rules of pronunciation, will pronounce the two signs at issue in that way, by pronouncing the letter ‘b’ or the word ‘be’ in the English way and by placing the stress on the ‘i’ when pronouncing ‘twin’. In any event, even on that assumption, the signs would be identical phonetically.
57 It follows from the foregoing that, even if the Board of Appeal found the signs to be phonetically identical on the assumption principally that they would both be pronounced as the English word ‘between’, an assumption to which it seems to have attached too much importance when viewed from the perspective of a public having at least a basic knowledge of the English language, it is clear, as OHIM contends, that the Board of Appeal, by acknowledging that part of the public might pronounce both signs as the sequence of the English words ‘be’ and ‘twin’, extended its finding that the signs at issue are phonetically identical to that latter assumption of how the signs would be pronounced. It follows that, in any event, the Board of Appeal’s conclusion that the signs are phonetically identical can be upheld, at least in relation to a not insignificant part of the relevant English‑speaking public.
58 With respect, in the third place, to the conceptual comparison of the signs, the Board of Appeal took the view in paragraph 22 of the contested decision that, taking into account that the word ‘between’ will be perceived in the two marks in dispute, they are conceptually similar. It added that the small figurative element of the earlier mark evoking a cyclist is the only element differentiating the signs conceptually. The Board also observed that if the terms at issue are both split into ‘be’ ‘twin’, they could both refer to the concept of ‘being twins’, which could be understood by the relevant English-speaking public, and concluded that, for this part of the public, the marks would be conceptually similar. It stated, lastly, that it does not share the applicant’s opinion that the mark applied for refers exclusively to gambling and winning (‘bet’ and ‘win’), especially in connection with the goods and services at issue. It therefore concluded that the signs at issue are similar from a conceptual point of view.
59 The applicant claims, in essence, that the average consumer will recognise the concept corresponding to the expression ‘be twin’ in the earlier mark, whereas that consumer will identify the concept corresponding to the association of the words ‘bet’ and ‘win’ in the case of the mark applied for. Given that the two meanings are entirely different from one another, the applicant claims that there is no conceptual similarity between the signs at issue. In its submission, the meaning of the English word ‘between’ is irrelevant for the purposes of the assessment of conceptual similarity.
60 In that regard, it should be observed first that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, he will break it down into word elements which, for him, suggest a concrete meaning or which resemble words known to him (see RESPICUR, paragraph 57 and the case-law cited).
61 In the present case, with respect, first, to whether the relevant public will understand both marks as referring to the English word ‘between’, the Court shares the applicant’s view that such an analysis is to a large extent irrelevant. As was observed above in the context of the phonetic analysis of the two marks, it is only the part of the relevant public which, whilst having a basic knowledge of the English language, will pronounce the word elements in question incorrectly and might pronounce them as the English word ‘between’. It seems doubtful that persons having such a low level of knowledge of the English language might therefore understand the meaning of the signs at issue as referring to that of the English word between. It is therefore likely that, for that part of the relevant public, which would not break down the marks at issue, conceptual comparison of the signs is not possible.
62 Second, it cannot, admittedly, be ruled out that a not insignificant part of the relevant public will break down the two marks at issue into two terms. With respect to the earlier mark, that part of the relevant public will understand that mark as referring to the English concept corresponding to the expression ‘be twin’ (being or be double/twin). As OHIM observes, it cannot be ruled out that part of the English-speaking public might see the letter ‘b’ followed by an apostrophe as being the equivalent of the English verbal element ‘be’ (being or be). Moreover, the word ‘twin’ (twin/double) will be easily understood. Lastly, the figurative element, which cannot be overlooked, is conducive to such an understanding of the mark, since the image of a bicycle brings to mind the concept of two wheels, and thus of duality.
63 Moreover, with respect to the mark applied for, it is entirely plausible that a not insignificant part of the relevant public will break down the term ‘betwin’ into the elements ‘be’ and ‘twin’, which have a specific meaning and resemble known words. In that case, the signs would coincide in their common reference to the notion of ‘being twin’ or of ‘be twin’ (being or be double/twin). Moreover, even consumers having a basic knowledge of the English language who would not perceive the letter ‘b’ followed by an apostrophe as being the equivalent of the English word ‘be’ will be able to spot and understand the common reference to the word ‘twin’ and will thus perceive conceptual similarity.
64 With respect, third, to the applicant’s argument that the mark applied for will be easily understood as referring to the English words ‘bet’ and ‘win’, thus essentially having the connotation of betting in order to win, in support of which it relies on the judgment in BETWIN, that argument cannot succeed. Contrary to the applicant’s claim, there is no evidence in the case‑file to permit the conclusion that it is more obvious that the mark applied for will be broken down into the words ‘bet’ and ‘win’, in relation to the goods covered, than into the words ‘be’ and ‘twin’.
65 Moreover, as regards the reference to the judgment in BETWIN, it does not support such an analysis in this particular case. It is true that, in paragraph 32 of that judgment, the Court upheld the Board of Appeal’s analysis according to which the mark BETWIN, taken as a whole, evokes the possibility of ‘betting and winning’ and that that combination is directly understandable by the relevant public. However, that analysis concerned the question whether the mark BETWIN is descriptive for services designed to offer bets or games played for money. As OHIM rightly observes, none of the goods covered by the marks at issue in the present case necessarily falls within that type of services, even in the case of the goods identified by the applicant in paragraph 31 above. That argument does not therefore make it possible to rule out the possibility that, for the goods covered, at least part of the relevant English-speaking public will understand the mark applied for as referring to the English words ‘be’ and ‘twin’.
66 Accordingly, the Board of Appeal was right to find that there exists between the marks at issue phonetic identity and visual and conceptual similarities which are not counterbalanced by visual dissimilarities. Consequently, it must be considered that the marks at issue are globally similar.
The likelihood of confusion
67 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 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 (Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 17, and VENADO with frame and Others, paragraph 74).
68 In paragraph 25 of the contested decision, the Board of Appeal found that the other party to the proceedings before the Board of Appeal had not claimed that the earlier mark had enhanced distinctiveness. The Board of Appeal took the view that there was a likelihood of confusion between the marks at issue among average consumers in the European Union in respect of the goods in Class 25 and Class 28, given the identity or similarity of the goods, combined with the similarity of the signs.
69 The applicant claims, with respect to the goods in Class 25 and in Class 28 which fall within the category of gymnastic and sporting articles, that, even if the goods concerned are identical or similar and there is a low level of similarity between the marks at issue in their visual and phonetic aspects, the differences between those marks outweigh those similarities. It relies, in particular, on their conceptual dissimilarity, since one mark means ‘be twin’ and the other one means ‘bet and win’, which the average consumer will immediately notice. Moreover, as regards the goods in Class 28 falling within the category of toys, games and playthings, the applicant submits that they are not similar or at most only similar to a low level to the goods in Classes 25 and 28 covered by the earlier mark, so that the average consumer would not confuse the marks at issue with each other, in view also of the low level of similarity of the goods and the dissimilarities or at least the low level of visual and phonetic similarities between the marks with differences emphasised by the concepts to which those goods refer.
70 In that regard, as was found in paragraph 41 above, it must be held that, with the exception of the goods falling within the toys, games and playthings in Class 28, covered by the mark applied for, which were identified in paragraph 31 above, the goods in Classes 25 and 28 covered by the marks at issue are partly identical and partly similar.
71 As regards the signs, they are globally similar, and it cannot moreover be ruled out that they are conceptually similar for a part of the relevant public which understands English. Contrary to what the applicant appears to claim, there is therefore no need to take account of the case-law that, in the context of a global assessment of the likelihood of confusion, conceptual differences between two signs can counteract phonetic and visual similarities between them, provided that, from the point of view of the relevant public, at least one of those signs has a clear and specific meaning, so that the public is capable of grasping it immediately (Case C‑16/06 P Éditions Albert René v OHIM [2008] ECR I‑10053, paragraph 98, and Case T‑292/01 Phillips-Van Heusen v OHIM – Pash Textilvertrieb und Einzelhandel (BASS) [2003] ECR II‑4335, paragraph 54).
72 Moreover, it must further be borne in mind, in the context of the global assessment of the likelihood of confusion between the two marks, that the differences owing to the presence, in the earlier mark, of the apostrophe and the stylised representation of a cyclist riding on a bicycle are not sufficiently important to put in question the visual, phonetic and conceptual similarities established.
73 Moreover, as regards the distinctiveness of the earlier mark, there is nothing in the case‑file to warrant the conclusion that it has enhanced distinctiveness. The impact of that factor on the analysis of the likelihood of confusion is therefore neutral.
74 In addition, even if it were necessary (i) to consider that the visual similarity was less significant than that found by the Board of Appeal and (ii) to find that, in respect of some of the goods covered by the marks in question in Classes 25 and 28, the visual aspect is more important at the time that those goods are purchased, the fact remains that the phonetic aspect is also still relevant to the assessment of the likelihood of confusion. Not only may the importance of certain visual dissimilarities be diminished by the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks at issue, and must rely on his imperfect recollection of them, but, in addition, the consumer may be prompted to choose goods from the categories in question in response to a television advertisement, for example, or because he has heard them being spoken about, in which cases he might retain the phonetic impression of the mark in question as well as the visual aspect (see, to that effect, judgment of 23 September 2009 in Case T‑99/06 Phildar v OHIM – Comercial Jacinto Parera (FILDOR), not published in the ECR, paragraph 82).
75 In view of the foregoing, it cannot be ruled out that at least a part of the English‑speaking public is likely to believe that, with the exception of the toys, games and playthings identified in paragraph 31 above, the goods concerned in Class 25 and in Class 28 covered by the marks at issue come from the same undertaking or, as the case may be, from economically‑linked undertakings. The Board of Appeal was therefore right to find that there was a likelihood of confusion between the earlier mark and the mark applied for in respect of those goods, without there being any need to establish whether that likelihood also existed in respect of the non‑English speaking part of the relevant public, as is apparent from the case-law referred to in paragraph 22 above.
76 However, as regards the toys, games and playthings identified in paragraph 31 above, the Court has held that the Board of Appeal’s finding that there is similarity between the goods as regards them is incorrect. None the less, OHIM contends before the Court that, even on the assumption that the degree of similarity between these goods is low, it would be necessary to conclude that there is a likelihood of confusion, given the similarity of the signs, and the application of the interdependence principle. It is apparent from paragraph 39 above that the Court was not able to identify any similarity, even to a low degree, between those goods and the goods covered by the mark applied for. Accordingly, since one of the cumulative conditions for the application of Article 8(1)(b) of Regulation No 207/2009 is not satisfied, it must be concluded that there is no likelihood of confusion between the marks at issue as regards the toys, games and playthings identified in paragraph 31 above.
77 Consequently, the applicant’s single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009 and, therefore, the application for annulment of the contested decision must be upheld in respect of the goods in Class 28 corresponding to the following description: ‘inflatable swimming pools for recreational use; jungle gyms (play equipment); stuffed plush animals; swimming pools [toys]; air pistols [toys], hand-held electronic video games; toy vehicles; toy models; electronic hand-held game units; counters for games; checkers [games]; playground apparatus; mechanical action toys; playthings, except playthings for pets; electronic games; toy balloons; dice; novelties for parties, dances (party favours); hand-held electronic games; game cards; pinball-type games; cups for dice; printing toys; question sets for board games; bingo card; model aircraft; skittles; dominoes; decorative wind socks; pinball machines; skill and action games; parlour games; slot machines, automatic; pinball machines (coin or non-coin operated); scale model aeroplanes; card games; flying disks; playing balls; games; cups for dice; dolls; skittles (games); remote-control vehicles (toys); quoits; darts; clay pigeon traps; scale‑model vehicles; sledges; slot machines, automatic; chess; toy masks; puzzles; stuffed toys; hand-held computer games; darts; toy aircraft; tossing disc toys; clay pigeons (targets); tappets; teddy bears; hand‑held video games; electronically-operated toy motor vehicles; battery operated toys; gaming chips; targets; stuffed toy bears; inflatable toys; board games; swings; kites; model cars’. It follows that the contested decision must be annulled in respect of those goods and that the application for annulment must be dismissed as to the remainder.
The application for alteration
78 With respect to the applicant’s head of claim that the Court should reject the opposition, it must be borne in mind that the power of the Court to alter decisions pursuant to Article 65(3) of Regulation No 207/2009 does not have the effect of conferring on the Court the power to carry out an assessment on which the Board of Appeal concerned has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (Case C‑263/09 P Edwin v OHIM [2011] ECR I‑0000, paragraph 72).
79 In the present case, the conditions for the exercise of the Court’s power to alter decisions as set out in the judgment in Edwin v OHIM are satisfied. It is apparent from the considerations set out in paragraphs 67 to 77 above that the Board of Appeal was required to find that, contrary to the view of the Opposition Division, there was no likelihood of confusion in respect of the goods in Class 28 corresponding to the following description: ‘inflatable swimming pools for recreational use; jungle gyms (play equipment); stuffed plush animals; swimming pools [toys]; air pistols [toys], hand-held electronic video games; toy vehicles; toy models; electronic hand-held game units; counters for games; checkers [games]; playground apparatus; mechanical action toys; playthings, except playthings for pets; electronic games; toy balloons; dice; novelties for parties, dances (party favours); hand-held electronic games; game cards; pinball-type games; cups for dice; printing toys; question sets for board games; bingo card; model aircraft; skittles; dominoes; decorative wind socks; pinball machines; skill and action games; parlour games; slot machines, automatic; pinball machines (coin or non-coin operated); scale model aeroplanes; card games; flying disks; playing balls; games; cups for dice; dolls; skittles (games); remote-control vehicles (toys); quoits; darts; clay pigeon traps; scale‑model vehicles; sledges; slot machines, automatic; chess; toy masks; puzzles; stuffed toys; hand-held computer games; darts; toy aircraft; tossing disc toys; clay pigeons (targets); tappets; teddy bears; hand‑held video games; electronically-operated toy motor vehicles; battery operated toys; gaming chips; targets; stuffed toy bears; inflatable toys; board games; swings; kites; model cars’. Consequently, it is necessary, by way of alteration of the contested decision, to annul the Opposition Division’s decision of 21 July 2010 and to reject the opposition in relation to the abovementioned goods.
Costs
80 According to Article 87(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the General Court may order that the costs be shared or that each party bear its own costs. In the present case, since the applicant’s action was successful only in respect of some of the goods covered by the mark applied for, it must be decided that each party will bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls the Decision of the First Board of Appeal of OHIM of 30 June 2011 (Case R 1816/2010‑1) so far as concerns the goods in Class 28 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, corresponding to the following description: ‘inflatable swimming pools for recreational use; jungle gyms (play equipment); stuffed plush animals; swimming pools [toys]; air pistols [toys], hand-held electronic video games; toy vehicles; toy models; electronic hand-held game units; counters for games; checkers [games]; playground apparatus; mechanical action toys; playthings, except playthings for pets; electronic games; toy balloons; dice; novelties for parties, dances (party favours); hand-held electronic games; game cards; pinball-type games; cups for dice; printing toys; question sets for board games; bingo card; model aircraft; skittles; dominoes; decorative wind socks; pinball machines; skill and action games; parlour games; slot machines, automatic; pinball machines (coin or non-coin operated); scale model aeroplanes; card games; flying disks; playing balls; games; cups for dice; dolls; skittles (games); remote-control vehicles (toys); quoits; darts; clay pigeon traps; scale‑model vehicles; sledges; slot machines, automatic; chess; toy masks; puzzles; stuffed toys; hand-held computer games; darts; toy aircraft; tossing disc toys; clay pigeons (targets); tappets; teddy bears; hand‑held video games; electronically-operated toy motor vehicles; battery operated toys; gaming chips; targets; stuffed toy bears; inflatable toys; board games; swings; kites; model cars’;
2. So far as concerns the goods mentioned in Article 1, annuls the Opposition Division’s decision of 21 July 2010 and rejects the opposition;
3. Dismisses the action as to the remainder;
4. Orders each party to bear its own costs.
Delivered in open court in Luxembourg on 4 June 2013.
[Signatures]