JUDGMENT OF THE GENERAL COURT (Third Chamber)
15 October 2013 (*)
(Community trade mark – Opposition proceedings – Application for Community word mark LIFECYCLE – Earlier national word mark LIFECYCLE – Partial refusal of registration by the Board of Appeal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 – Obligation to state reasons – Article 75 of Regulation No 207/2009)
In Case T‑379/12,
Electric Bike World Ltd, established in Southampton (United Kingdom), represented by S. Malynicz, Barrister,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by L. Rampini, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Brunswick Corp., established in Lake Forest, Illinois (United States of America),
ACTION brought against the decision of the First Board of Appeal of OHIM of 16 May 2012 (Case R 2308/2011‑1), relating to opposition proceedings between Brunswick Corp. and Electric Bike World Ltd,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the General Court on 21 August 2012,
having regard to the response lodged at the Registry of the General Court on 13 December 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 14 September 2009, the applicant, Electric Bike World Ltd, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under 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 in respect of which registration was sought is the word sign LIFECYCLE.
3 The goods in respect of which registration was sought fall within Classes 12, 18 and 25 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 12: ‘Vehicles; apparatus for locomotion by land, air or water; bicycles, electric bicycles; motorised bicycles; parts, fittings and accessories for any of the aforementioned goods’;
– Class 18: ‘Leather and imitations of leather and goods made of these materials and not included in other classes; trunks and travelling bags; bags, sports bags, tote bags, duffle bags, backpacks, rucksacks, knapsacks, waist bags, wallets, purses; luggage; key fobs; umbrellas’; and
– Class 25: ‘Clothing, footwear, headgear’.
4 The Community trade mark application was published in Community Trade Marks Bulletin No 50/2009 of 30 November 2009.
5 On 24 February 2010, Brunswick Corp. filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009, to registration of the trade mark applied for in respect of the goods in Classes 12, 18 and 25 referred to in paragraph 3 above.
6 The opposition was based on the earlier Spanish word mark LIFECYCLE, filed on 2 September 1988, registered on 5 March 1991 and covering goods in Class 28 corresponding to the following description: ‘machines for physical exercises, gymnastic and sporting articles’.
7 The grounds relied on in support of the opposition were those referred to in Article 8(1)(b) of Regulation No 207/2009.
8 The applicant asked Brunswick Corp. to provide proof of use of the earlier trade mark.
9 On 13 September 2011, the Opposition Division of OHIM, on the one hand, found that the evidence submitted by Brunswick Corp. showed that the earlier trade mark had been used for ‘exercise bikes’, which corresponded to the category of goods ‘machines for physical exercises’ for which that trade mark was registered. The Opposition Division took the view that it was impossible to create further sub-categories of ‘machines for physical exercises’, and found that Brunswick Corp. had shown genuine use of that trade mark in relation to ‘machines for physical exercises’. On the other hand, the Opposition Division rejected the opposition in its entirety, on the ground that there was no likelihood of confusion on the part of the Spanish public.
10 On 8 November 2011, Brunswick Corp. filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division so far as concerned the goods in Class 12 referred to in paragraph 3 above.
11 By decision of 16 May 2012 (‘the contested decision’), the First Board of Appeal of OHIM, firstly, annulled the decision of the Opposition Division in so far as it had rejected the opposition for the following goods in Class 12 ‘vehicles; apparatus for locomotion by land or water; bicycles, electric bicycles; motorised bicycles; parts, fittings and accessories for any of the aforementioned goods’ and rejected the Community trade mark application for those goods and, secondly, dismissed the appeal for the other goods in Class 12 covered by the trade mark applied for.
12 In particular, the Board of Appeal compared the goods ‘vehicles; apparatus for locomotion by land, air or water; bicycles, electric bicycles; motorised bicycles; parts, fittings and accessories for any of the aforementioned goods’ in Class 12, covered by the trade mark applied for, with exercise bikes and rowing machines, included, amongst others, in the goods ‘machines for physical exercises’ in Class 28 covered by the earlier trade mark. It concluded that certain goods mentioned above in Class 12, namely, the goods ‘vehicles; apparatus for locomotion by land or water; bicycles, electric bicycles; motorised bicycles; parts, fittings and accessories for any of the aforementioned goods’ and the goods ‘machines for physical exercises’, firstly, have physical exercise as their common purpose, since human-powered vehicles such as bicycles and sculls (boats) are commonly used for exercise and recreational purposes, secondly, display similarities as regards their nature and, thirdly, may be sold in the same sports shops. Those goods are, therefore, at least slightly similar. That low degree of similarity is offset by the identity of the signs at issue and, therefore, there is, for those goods, a likelihood of confusion between the trade mark applied for and the earlier trade mark on the part of the Spanish public. On the other hand, as regards the goods ‘apparatus for locomotion by air; parts, fittings and accessories for any of the aforementioned goods’, the Board of Appeal found that these were dissimilar to the goods ‘machines for physical exercises’ and that, therefore, there was no likelihood of confusion.
Forms of order sought
13 The applicant claims that the Court should:
– annul the contested decision;
– order OHIM and Brunswick Corp. to pay the costs.
14 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
15 In support of its action, the applicant relies on two pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation No 207/2009 and the second, infringement of Article 75 of that regulation.
16 By its first plea, the applicant claims that the Board of Appeal infringed Article 8(1)(b) of Regulation No 207/2009 in so far as it found that the goods ‘electric bicycles; motorised bicycles’ in Class 12, covered by the trade mark applied for, were similar to exercise bikes, included in the goods ‘machines for physical exercises’ in Class 28 covered by the earlier trade mark.
17 By its second plea, the applicant claims that the Board of Appeal did not satisfy its obligation to state reasons, as provided for in Article 75 of Regulation No 207/2009, in so far as it did not provide any specific reasoning as regards the similarity between, on the one hand, the goods ‘electric bicycles; motorised bicycles’ in Class 12 covered by the trade mark applied for and, on the other, the exercise bikes included in the goods ‘machines for physical exercises’ in Class 28 and covered by the earlier trade mark.
18 OHIM disputes the applicant’s arguments.
19 It is apparent from the application as a whole that, by its two pleas in law, the applicant is seeking to challenge the Board of Appeal’s findings concerning the goods ‘electric bicycles; motorised bicycles’ only.
Preliminary observations
20 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 or services 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. In addition, under Article 8(2)(a)(ii) of Regulation No 207/2009, the term ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the Community trade mark.
21 According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to that same line of 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, in particular the interdependence of the similarity of the signs and that of the goods or services covered (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).
22 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the trade marks at issue are identical or similar and that the goods or services that they cover are identical or similar. Those conditions are cumulative (see Case T‑316/07 Commercy v OHIM – easyGroup IP Licensing (easyHotel) [2009] ECR II‑43, paragraph 42 and the case-law cited).
23 According to settled case-law, in assessing 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).
24 In the present case, the Board of Appeal stated, in the contested decision, that, firstly, the relevant territory for analysing the likelihood of confusion was the Kingdom of Spain; secondly, the relevant public comprised both the general public and specialised public, such as fitness clubs, reasonably well-informed and reasonably observant and circumspect; and, thirdly, the degree of attentiveness of consumers had to be regarded as being slightly higher than average given that the goods concerned were relatively expensive. These findings of the Board of Appeal, which are not disputed by the parties, must be upheld.
25 It is also not disputed that, as the Board of Appeal stated in the contested decision, the signs at issue are identical.
26 Concerning the comparison of the goods in question, as has been stated in paragraph 12 above, the Board of Appeal, inter alia, observed in paragraphs 20 to 25 of the contested decision that the goods ‘machines for physical exercises’ covered by the earlier trade mark were slightly similar to the goods ‘vehicles; apparatus for locomotion by land or water; bicycles, electric bicycles; motorised bicycles; parts, fittings and accessories for any of the aforementioned goods’ covered by the trade mark applied for.
27 In order to assess the similarity of the goods in question, the Board of Appeal compared, inter alia, bicycles, covered by the trade mark applied for, with exercise bikes, included in the goods ‘machines for physical exercises’ covered by the earlier trade mark. From that comparison, the Board of Appeal found that bicycles displayed similarities to exercise bikes so far as concerned their nature, their intended purpose and their distribution channels. More specifically, as regards their nature, the Board of Appeal took the view that both bicycles and exercise bikes were likely to consist of similar, if not identical, constituent parts, such as the saddle, the pedals, the chain and the handlebars. As regards their intended purpose, the Board of Appeal found that exercise bikes were used indoors for the purposes of physical exercise, while bicycles were also commonly used for such purposes. Lastly, exercise bikes could be sold in the same sports shops as bicycles.
28 The applicant disputes the Board of Appeal’s assessment as to the existence of similarities between the products in question only so far as concerns electric or motorised bicycles. Thus, by its second plea in law, the applicant claims that the general reasoning in the contested decision, based on the comparison of bicycles, covered by the trade mark applied for, and exercise bikes, included in the goods ‘machines for physical exercises’ covered by the earlier trade mark, cannot cover electric or motorised bicycles since the latter cannot be regarded as forming a homogenous group with bicycles. Indeed, by its first plea in law, the applicant claims that, in any event, the Board of Appeal should have concluded that there was no similarity between electric or motorised bicycles and exercise bikes and that, therefore, there was no likelihood of confusion with regard to those goods, despite the identity of the signs at issue.
29 In those circumstances, it is necessary to examine, first, the second plea in law, alleging insufficient reasoning, and then the first plea in law, alleging an error in the assessment of the existence of a likelihood of confusion, in particular so far as concerns the comparison of the goods in question.
Second plea
30 Under Article 75 of Regulation No 207/2009, ‘[d]ecisions of [OHIM] shall state the reasons on which they are based’. The obligation to state reasons, as thus laid down, has the same scope as that which derives from Article 296 TFEU, as consistently interpreted in the case-law, according to which the statement of reasons must disclose, in a clear and unequivocal manner, the reasoning of the author of the measure, in such a way as to enable, on the one hand, interested parties to ascertain the reasons for the measure adopted, to enable them to protect their rights, and, on the other, the European Union judicature to exercise its power to review the legality of the decision (see Case C‑447/02 P KWS Saat v OHIM [2004] ECR I‑10107, paragraphs 64 and 65, and Joined Cases T‑124/02 and T‑156/02 Sunrider v OHIM – Vitakraft-Werke Wührmann and Friesland Brands (VITATASTE and METABALANCE 44) [2004] ECR II‑1149, paragraphs 72 and 73 and the case-law cited).
31 In that context, a decision relating to the existence of a likelihood of confusion between conflicting trade marks, as referred to in Article 8(1)(b) of Regulation No 207/2009, having regard to the goods or services covered by them, must state reasons in respect of each of those goods or services. However, the competent authority may use only general reasoning in respect of all the goods and services concerned if they are interlinked in a sufficiently direct and specific way, to the point where they form a sufficiently homogenous category or group (see, by analogy, order in Case C‑282/09 P CFCMCEE v OHIM [2010] ECR I‑2395, paragraphs 37, 38 and 40 and the case-law cited, and judgment of 30 November 2011 in Case T‑123/10 Hartmann v OHIM (Complete), not published in the ECR, paragraphs 15, 16 and 18).
32 It must, first of all, be pointed out that, as the case file before OHIM shows, electric bicycles and motorised bicycles, like regular bicycles, have two wheels, a saddle, handlebars, a chain and pedals. However, unlike regular bicycles, electric or motorised bicycles also have an engine, whether electric or not.
33 In addition, it is a matter of common knowledge that regular bicycles are necessarily human-powered, by pedalling, and are, therefore, commonly used, besides for transportation, for the purposes of exercise and recreation, which the applicant does not dispute.
34 Although it is true that electric or motorised bicycles can be powered with the assistance of an engine, it cannot be denied that, where they have pedals, like non-motorised bicycles, they may also be human-powered, by pedalling. Indeed, the applicant does not claim that electric or motorised bicycles cannot be human-powered.
35 It cannot be denied that electric or motorised bicycles are, like any vehicle, used for the purposes of transportation. However, as they are vehicles powered, at least partially, by human effort, it must be concluded that they can also be used for the purposes of physical exercise, like non-motorised bicycles. It is precisely that dual nature, which enables their use either with the assistance of the engine, or without, by human power by pedalling, that differentiates electric or motorised bicycles and distinguishes them from motorcycles or scooters, which are designed exclusively for the purposes of transportation and cannot be used for the purposes of physical exercise.
36 As is apparent from paragraphs 26 and 27 above, the Board of Appeal’s assessment as to the similarity between the goods ‘vehicles; apparatus for locomotion by land or water; bicycles, electric bicycles; motorised bicycles; parts, fittings and accessories for any of the aforementioned goods’ covered by the trade mark applied for and the goods ‘machines for physical exercises’ covered by the earlier trade mark, was based, in particular, on considerations relating to the existence of similarities between bicycles and exercise bikes. The factors taken into account in that regard by the Board of Appeal were, primarily, the constituent features of bicycles, namely, the saddle, the pedals, the chain and the handlebars, and the fact that they were capable of being used for the purposes of physical exercise.
37 Clearly, the features of bicycles on which the Board of Appeal based its assessment also define electric or motorised bicycles (see paragraphs 32 to 35 above). Firstly, the latter are, from a technical point of view, bicycles, even though they may be powered by an engine as well as being human-powered by pedalling. Secondly, both bicycles and electric or motorised bicycles are highly similar as regards their nature inasmuch as they have the same constituent parts, the difference being the presence or otherwise of an engine. Thirdly, since all of these types of bicycles are used, at least partially, with human power, they may be regarded as having the common purpose, besides transportation, of physical exercise.
38 Based on the strong similarities between bicycles and electric or motorised bicycles with regard to the factors on which the Board of Appeal based its assessment as to the similarity between bicycles and exercise bikes, it must be held that regular bicycles, electric bicycles and motorised bicycles do form part of a homogenous group, as referred to in the case-law (see paragraph 31 above), such that the reasoning in the contested decision regarding the comparison between bicycles and exercise bikes is also capable of covering electric or motorised bicycles. Accordingly, the Board of Appeal was entitled to confine itself to general reasoning for bicycles and electric or motorised bicycles.
39 It follows that, contrary to the applicant’s claims, the contested decision contains an adequate statement of reasons concerning electric or motorised bicycles and, therefore, the Board of Appeal has fulfilled its obligation to state reasons, as provided for in Article 75 of Regulation No 207/2009. Accordingly, the second plea in law cannot be upheld.
First plea
40 The first plea in law alleges an error in the assessment of the existence of a likelihood of confusion, in particular, so far as concerns the comparison of the goods in question.
Comparison of the goods
41 The applicant claims that, unlike bicycles, electric or motorised bicycles are not similar to exercise bikes. Those goods, firstly, do not have the same intended purpose, since electric or motorised bicycles serve primarily for transportation while exercise bikes are designed for physical exercise. Secondly, those goods are different in nature inasmuch as electric or motorised bicycles are equipped with an engine, unlike exercise bikes, which are necessarily human-powered. Thirdly, those goods are not sold in the same sports shops.
42 A preliminary point to note is that, as the Board of Appeal has stated in the contested decision, the goods ‘machines for physical exercises’ in Class 28, are machines designed for the purposes of physical exercise and include, inter alia, exercise bikes. Their use is primarily intended to improve physical fitness, general health and well-being. Machines for physical exercises are often designed to make it possible to simulate the body movements that are necessary to propel human-powered vehicles. Thus, an exercise bike simulates the movement of a cyclist on a bicycle.
43 In addition, as the case file before OHIM shows, an exercise bike is a stationary device having a saddle, pedals, a chain and a type of handlebars, resembles a bicycle without wheels and is used indoors for the purposes of physical exercise by pedalling.
44 In view of the features of electric or motorised bicycles and exercise bikes as they are set out in paragraphs 32 to 35 and 43 above respectively, it must be held that, so far as concerns, firstly, their nature, those goods display similarities inasmuch as they have many identical or similar parts, such as the saddle, the pedals, the chain and the handlebars. Thus, both electric or motorised bicycles and exercise bikes resemble regular bicycles, visually and structurally. That circumstance may lead the relevant public to regard their design as based on the same know-how and that they may, therefore, be manufactured by the same undertakings or by economically-linked undertakings.
45 The fact that electric or motorised bicycles are equipped with an engine is, as the applicant rightly observes, a factor that distinguishes them from exercise bikes. However, that difference does not in any way change the fact that those goods have, as set out in the paragraph above, many similar or identical features so far as concerns their nature.
46 Secondly, as to their intended purpose, it has already been pointed out in paragraph 35 above that, like regular bicycles, electric or motorised bicycles may be used not only for transportation purposes but also for physical exercise. Exercise bikes, for their part, are designed exclusively for the purposes of physical exercise. It follows that physical exercise, the exclusive intended purpose of exercise bikes, is among the intended purposes of electric or motorised bicycles. There is, therefore, a similarity between those goods so far as concerns their intended purpose. That similarity is not called into question by the mere fact, put forward by the applicant, that an electric or motorised bicycle is not substitutable for an exercise bike inasmuch as it would not be possible to install a flywheel on an electric bicycle or mount it on rollers indoors to improve physical fitness.
47 The applicant also submits that electric or motorised bicycles are more similar to motorcycles, mopeds and scooters than to exercise bikes. It cannot be denied that electric or motorised bicycles (as indeed regular bicycles) display certain similarities to motorcycles, mopeds and scooters, both as regards their constituent parts, such as the saddle, two wheels and handlebars, and as regards their intended purpose of transportation. However, that circumstance does not affect the fact that regular, electric or motorised bicycles also display similarities to exercise bikes as regards both their constituent parts and their intended purpose of physical exercise.
48 It follows from the foregoing observations that electric or motorised bicycles, like regular bicycles, display similarities to exercise bikes as regards their nature and intended purpose. Those factors prove to the requisite standard the existence of at least a slight similarity between electric or motorised bicycles and exercise bikes. It must be held, therefore, that the Board of Appeal was correct to find that those goods were at least slightly similar.
49 As has already been observed in paragraph 27 above, in the contested decision, the Board of Appeal also took account of the possibility of bicycles and exercise bikes being sold in the same sports shops. The applicant disputes that finding so far as concerns electric or motorised bicycles, arguing that it is wrong and that it is not supported by any evidence.
50 In this connection, it must be noted that, under Article 76(1) of Regulation No 207/2009, ‘in proceedings relating to relative grounds for refusal of registration, the [examination by OHIM] shall be restricted … to the facts, evidence and arguments provided by the parties and the relief sought’. According to settled case-law, that provision relates, inter alia, to the factual basis of decisions of OHIM, that is, the facts and evidence on which those decisions may validly be based. Thus, the Board of Appeal, when hearing an appeal against a decision terminating opposition proceedings, may base its decision only on the facts and evidence submitted by the parties. However, the restriction of the factual basis of the examination by the Board of Appeal does not preclude it from taking into consideration facts which are well known, that is, facts which are likely to be known by anyone or which may be learnt from generally accessible sources (see Case T‑185/02 Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO) [2004] ECR II‑1739, paragraphs 28 and 29, and judgment of 13 June 2012 in Case T‑542/10 XXXLutz Marken v OHIM – Meyer Manufacturing (CIRCON), not published in the ECR, paragraph 38).
51 In the present case, it is a matter of common knowledge that both regular bicycles and electric or motorised bicycles can be sold in sports shops that also market machines for physical exercises, such as exercise bikes. Accordingly, the Board of Appeal was entitled to mention that fact as a matter of common knowledge without providing other evidence to support it. It follows that the applicant’s argument must be rejected as unfounded.
52 In any event, even if that argument were well founded, it is not capable of affecting the assessment that electric or motorised bicycles and exercise bikes are at least slightly similar. The similarities between electric or motorised bicycles and exercise bikes, as set out in paragraphs 44 to 48 above, are sufficient to establish at least a slight similarity between those goods. Consequently, even if the Board of Appeal was wrong to find that those goods could be sold in the same sports shops, that circumstance would not be sufficient to call into question its assessment as to the existence of a similarity between those goods and would not, therefore, be sufficient, on its own, to warrant annulment of the contested decision (see, to that effect, Case T‑222/09 Ineos Healthcare v OHIM – Teva Pharmaceutical Industries (ALPHAREN) [2011] ECR II‑183, paragraphs 33 and 35 and the case-law cited). Accordingly, the applicant’s argument must, in any event, be disregarded as ineffective.
53 Therefore, contrary to what the applicant claims, the Board of Appeal’s assessment that the electric or motorised bicycles covered by the trade mark applied for are slightly similar to the exercise bikes included in the goods ‘machines for physical exercises’ covered by the earlier trade mark is not vitiated by any error.
Likelihood of confusion
54 The global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, 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 the goods or services covered may be offset by a high degree of similarity between the trade marks, and vice versa (Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 17, and 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 74).
55 In the present case, the Board of Appeal found that, in accordance with the principle of interdependence, the low degree of similarity between, on the one hand, certain goods falling within Class 12 and covered by the trade mark applied for, namely, electric or motorised bicycles, and the exercise bikes that are amongst the goods ‘machines for physical exercises’ covered by the earlier trade mark, on the other, is offset by the identity of the signs at issue, so that despite consumers’ higher degree of attentiveness, there is a likelihood of confusion between the trade mark applied for and the earlier trade mark on the part of the relevant public in respect of those goods.
56 The applicant disputes that assessment so far as concerns electric or motorised bicycles, on the ground that the Board of Appeal was wrong to find that there was a similarity between those goods and the goods covered by the earlier trade mark and, in particular, exercise bikes. Given that the existence of a likelihood of confusion under Article 8(1)(b) of Regulation No 207/2009 presupposes at least some degree of similarity between the goods in question, the applicant submits that, in the absence of any similarity between the goods concerned, it is irrelevant, in the circumstances, that the signs at issue are identical.
57 As has been pointed out in paragraph 53 above, the Board of Appeal correctly found that the goods in question, namely, electric or motorised bicycles on the one hand, and exercise bikes on the other, were slightly similar. It follows that, contrary to what the applicant claims, there is, in the present case, some degree of similarity between the goods in question.
58 Having regard to the case-law cited in paragraph 54 above, that low degree of similarity between the goods in question can be offset by the existence of a high degree of similarity between the signs at issue. In the present case, it is not disputed that the signs at issue are identical (see paragraph 25 above). In those circumstances, the existence of even a slight similarity between electric or motorised bicycles, covered by the trade mark applied for, and exercise bikes, included in the goods ‘machines for physical exercises’, covered by the earlier trade mark, may give rise to a likelihood of confusion between those trade marks on the part of the relevant public for those goods.
59 Consequently, the Board of Appeal did not err in concluding that there was a likelihood of confusion between the trade mark applied for and the earlier trade mark so far as concerns the goods ‘electric bicycles; motorised bicycles’ and the goods ‘machines for physical exercises’.
60 Having regard to all of the foregoing, the first plea must be rejected and the application dismissed in its entirety.
Costs
61 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
62 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 (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Electric Bike World Ltd to pay the costs.
Delivered in open court in Luxembourg on 15 October 2013.
[Signatures]