Judgment of the General Court (Eighth Chamber) of 22 October 2015 —
Enosi Mastichoparagogon v OHIM — Gaba International (ELMA)
(Case T‑309/13)
Community trade mark — Opposition proceedings — International registration designating the European Community — Word mark ELMA — Earlier Community word mark ELMEX — Refusal to register — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009
1. Community trade mark — Appeals procedure — Action before the EU judicature — Modification of the terms of the dispute as brought before the Board of Appeal — Not permissible (Rules of Procedure of the General Court (1991), Art. 135(4); Council Regulation No 207/2009, Art. 65) (see para. 15)
2. Community trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Exclusion (Rules of Procedure of the General Court (1991), Art. 135(4); Council Regulation No 207/2009, Art. 65) (see para. 16)
3. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 23-26, 68)
4. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 28-30)
5. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Word marks ELMA and ELMEX (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31-33, 69-71)
6. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 39, 40)
7. Community trade mark — Definition and acquisition of the Community trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 53-57)
Re:
| ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 26 March 2013 (Case R 1539/2012-4) relating to opposition proceedings between Gaba International Holding GmbH and Enosi Mastichoparagogon Chiou. |
Operative part
The Court:
2. | | Orders Enosi Mastichoparagogon Chiou to pay the costs. |