Judgment of the General Court (First Chamber) of 15 March 2016 —
Nezi v OHIM — Etam (E)
(Case T‑645/13)
Community trade mark — Opposition proceedings — Application for Community figurative mark E — Earlier Community figurative mark E — Relative grounds for refusal — Likelihood of confusion — Reputation — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009
1. Community trade mark — Decisions of the Office — Principle of equal treatment — Principle of sound administration — OHIM’s previous decision-making practice — Principle of legality — Need for a strict and complete examination in each particular case (see paras 42, 43)
2. 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 59, 60)
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 — Similarity between the goods or services in question — Complementary nature of the goods or services (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 71, 83-85, 89)
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 — Figurative marks E and E (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 91, 99-101, 109, 110)
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 — Similarity of the marks concerned — Criteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see para. 93)
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 — Protection of well-known earlier mark extended to dissimilar goods or services — Conditions — Detriment to the distinctive character or repute of the earlier mark — Taking unfair advantage of the distinctive character or repute of the earlier mark (Council Regulation No 207/2009, Art. 8(5)) (see paras 113, 114)
7. Community trade mark — Appeals procedure — Appeal against a decision of the Opposition Division of OHIM — Examination by the Board of Appeal — Scope — Facts and evidence not produced in support of the opposition within the period prescribed for that purpose — Account taken — Discretion of the Board of Appeal — Absence of any provision to the contrary (Council Regulation No 207/2009, Art. 76(2)) (see paras 121-123)
Re:
| ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 3 October 2013 (Case R 329/2013-4), relating to opposition proceedings between Etam SAS and Mrs Evcharis Nezi. |
Operative part
The Court:
2. | | Dismisses the cross-claim; |
3. | | Orders Mrs Evcharis Nezi and Etam SAS each to bear half of the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), and each to pay their own costs. |