Judgment of the General Court (Second Chamber) of 10 February 2015 —
Boehringer Ingelheim International v OHIM — Lehning entreprise
(ANGIPAX)
(Case T‑368/13)
Community trade mark — Opposition proceedings — Application for Community word mark ANGIPAX — Earlier Community word mark ANTISTAX — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009
1. 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 (Council Regulation No 207/2009, Art. 65) (see para. 18)
2. Community trade mark — Appeals procedure — Action before the EU judicature — Legality of the decision of a Board of Appeal adjudicating in opposition proceedings — Challenge by the adducing of new facts — Not permissible — Account taken, for the purposes of interpreting EU law, of EU national or international case-law not cited before the OHIM bodies — Lawfulness (Council Regulation No 207/2009, Art. 65) (see para. 20)
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 24-28, 82)
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 — Word marks ANGIPAX and ANTISTAX (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 31, 47, 60-63, 94, 95)
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 — Assessment of the likelihood of confusion — Attention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 38-46)
6. Community trade mark — Appeals procedure — Action before the EU judicature — Procedure concerning grounds for refusal to register — Challenge concerning the comparison of goods or services not raised before the Board of Appeal — No modification of the factual or legal framework of the dispute brought before the Board of Appeal (Rules of Procedure of the General Court, Art. 135(4); Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 52, 53, 55)
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 between the goods or services in question — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 58)
8. Community trade mark — Procedural provisions — Examination of the facts of the Office’s own motion — Scope — No obligation to prove matters within common knowledge — Dispute before the General Court (Council Regulation No 207/2009, Art. 76(1)) (see paras 89, 90)
Re:
| ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 29 April 2013 (Case R 571/2012-5), relating to opposition proceedings between Boehringer Ingelheim International GmbH and Lehning entreprise SARL. |
Operative part
The Court:
2. | | Orders Boehringer Ingelheim International GmbH to pay the costs, including the expenses necessarily incurred by Lehning entreprise SARL for the purposes of the proceedings before the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM). |