JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
23 September 2011 (*)
(Community trade mark – Opposition proceedings – Application for a Community figurative mark ‘see more’ – Earlier national word marks CMORE – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑501/08,
NEC Display Solutions Europe GmbH, established in Munich (Germany), represented by P. Munzinger, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by W. Verburg, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
C More Entertainment AB, established in Stockholm (Sweden), represented by R. Almaraz Palmero, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 28 August 2008 (Case R 1388/2007-4) relating to opposition proceedings between C More Entertainment AB and NEC Display Solutions Europe GmbH,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the Court on 18 November 2008,
having regard to the response of OHIM lodged at the Registry of the Court on 1 April 2009,
having regard to the response of the intervener lodged at the Registry of the Court on 27 February 2009,
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, to give a ruling without an oral procedure pursuant to Article 135a of the Rules of Procedure of the Court,
gives the following
Judgment
Background to the dispute
1 On 20 September 2004, the applicant, NEC Display Solutions Europe GmbH, filed an application for registration of a Community trade mark with 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 following figurative sign:
3 The goods in respect of which the applicant applied for registration of the mark come within Class 9 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 to the following description: ‘Computers and computer accessories, namely computer monitors’.
4 The Community trade mark application was published in Community Trade Marks Bulletin No 22/2005 of 30 May 2005.
5 On 18 July 2005, the intervener, C More Entertainment AB, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) to registration of the trade mark applied for. That notice of opposition was brought against all the goods in Class 9 covered by the mark applied for and based on a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009), between the mark applied for and the following earlier marks:
– The Danish word mark CMORE, registered on 18 May 2004 under reference VR 200401590, in particular for goods in Class 9 and corresponding to optical apparatus and instruments; data processing equipment and computers;
– The Finnish word mark CMORE, registered on 29 October 2004 under the number 231366, in particular for goods in Class 9 and corresponding to optical apparatus and instruments; data processing equipment and computers.
6 On 29 June 2007, the Opposition Division upheld the opposition for all of the goods at issue and rejected the application for a Community mark.
7 On 27 August 2007, the applicant filed an appeal with OHIM pursuant to Articles 57 and 62 of Regulation No 40/94 (now Articles 58 and 64 of Regulation No 207/2009) against the Opposition Division’s decision.
8 By decision of 28 August 2008 (‘the contested decision’), the Fourth Board of Appeal of OHIM found that there was a likelihood of confusion between the trade mark applied for and the earlier marks for the goods in Class 9 covered by the trade mark application. Firstly, the Board of Appeal found that the relevant public consisted of the general public of Denmark and Finland who generally showed an average level of attention. Next, it considered that the goods covered by the earlier marks were identical to those covered by the trade mark application. As regards the comparison of the signs, the Board of Appeal pointed out that visually there was a low degree of similarity between the marks at issue, in so far as they did not contain the same number of letters and the mark applied for comprised a stylised depiction of a screen represented by a blue casing surrounding the word ‘see’. The Board of Appeal also considered that the dominant element of the contested mark, namely the verbal element ‘see more’ was phonetically and conceptually identical to the earlier marks CMORE. Taking account of the visual similarly and the phonetical and conceptual identity between the marks at issue, as well as the fact that the goods were identical, the Board of Appeal found that a likelihood of confusion between the marks could not be excluded.
Forms of order sought by the parties
9 The applicant claims that the Court should:
– annul the contested decision;
– reject the opposition;
– order OHIM to pay the costs, including those incurred by the applicant before the Board of Appeal;
– order the intervener to pay the costs.
10 OHIM and the intervener contend that the Court should:
– dismiss the application;
– order the applicant to pay the costs, including those incurred by OHIM.
Law
11 In its single plea in law alleging infringement of Article 8(1)(b) of Regulation No 40/94, the applicant claims that the Board of Appeal erred in finding that there was a likelihood of confusion between the marks at issue. The applicant submits, in essence, that the signs at issue are dissimilar because none of their verbal or figurative elements are the same and the figurative element of its mark contributes to establishing a sufficient distinction between the signs at issue. In the applicant’s view, the marks at issue are visually as well as phonetically and conceptually dissimilar. It also maintains that the Board of Appeal erred in considering that the relevant public is composed of the general public and considering that the goods at issue are identical.
12 OHIM and the intervener dispute the applicant’s arguments.
13 Under Article 8(1)(b) of Regulation No 40/94, 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, the earlier trade mark and the identity or similarity of the goods or services covered by the two marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier mark. In addition, under Article 8(2)(a)(i) and (ii) of Regulation No 40/94 (now Article 8(2)(a)(i) and (ii) of Regulation No 207/2009), earlier trade marks means Community trade marks and 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.
14 It is settled case-law that the risk that the public may believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraph 30 and case-law cited).
15 That global assessment implies some interdependence between the factors taken into account and, in particular, between the similarity of the marks and that 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‑234/06 P Il Ponte Finanziaria v OHIM [2007] ECR I‑7333, paragraph 48, and Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 25).
16 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 in question by the consumer of the goods at issue 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 40/94 exists in part of the Community (see, to that effect, 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 case-law cited).
17 The Board of Appeal’s assessment as to the likelihood of confusion between the signs at issue must be examined in the light of the foregoing considerations.
The relevant public
18 In accordance with 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 case-law cited).
19 First, the applicant disputes the Board of Appeal’s assessment of the relevant public. In the applicant’s view, given the nature of the goods concerned, namely computers and computer accessories such as monitors, which are not everyday consumer items, the public is composed of attentive and knowledgeable consumers.
20 However, it must be noted that, although it is true that the goods covered by the trade marks at issue are computers and products closely linked to them and are aimed at a public which has a more or less detailed knowledge of computers and is familiar with the use of electronic equipment, the fact remains that, at the present time, the supply and consumption of such goods and their distribution among a wide public are such that they cannot be regarded as confined to a restricted and specialised circle of consumers, even though they cannot all be defined as mass consumer goods. Similarly, although it is true that some of the goods and services concerned are likely, by their degree of sophistication and their cost, to be the subject of a more careful purchasing decision, that is not the case with all the goods in question (see, to that effect, Case T‑352/02 Creative Technology v OHIM – Vila Ortiz (PC WORKS) [2005] ECR II‑1745, paragraph 25, and judgment of 22 May 2008 in Case T‑205/06 NewSoft Technology v OHIM – Soft (Presto! BizCard Reader), not published in the ECR, paragraph 35).
21 Therefore, the Board of Appeal was correct to hold that the relevant public was composed of average consumers reasonably well informed and reasonably observant and circumspect.
22 It is, moreover, common ground that the earlier marks are national marks registered in Denmark and in Finland. Consequently, as is apparent from paragraph 12 of the contested decision, the assessment must be limited to the territory of those States for assessing the likelihood of confusion.
Comparison of the goods
23 According to settled case-law, in order to assess the similarity between the goods or services concerned, all the relevant features of the relationship between them should be taken into account. Those features 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 case-law cited).
24 The applicant takes the view that the goods on which the opposition is based are not identical since the earlier marks had been registered for computers, which are storage devices different to the monitors for which the applicant applied for registration. As regards optical apparatus and instruments, they refer to goods which have nothing to do with monitors.
25 OHIM responds that the applicant’s argument is inadmissible as it was raised for the first time before the General Court.
26 As regards the admissibility of the argument as to the comparison of the goods, it must be recalled that, in accordance with case-law of the Court of Justice, where the General Court is hearing a dispute concerning the assessment by the Board of Appeal of the likelihood of confusion between two signs, the General Court has jurisdiction to review the Board of Appeal’s assessment of the similarity of the goods at issue, even if that point is not specifically disputed by the applicant, since the General Court cannot be bound by an incorrect assessment of the facts by the Board of Appeal (see, to that effect, Case C‑16/06 P Les Éditions Albert René v OHIM [2008] ECR I‑10053, paragraphs 47 and 48, and judgment of 2 June 2010 in Case T‑35/09 Procaps v OHIM – Biofarma (PROCAPS), not published in the ECR, paragraph 59).
27 As regards the comparison of the goods, it must be noted that the earlier marks were registered for certain goods in Class 9, and in particular for computers, goods which also form the subject-matter of the applicant’s trade mark application. The applicant also sought registration of its mark for computer accessories, in particular for monitors, in Class 9. Clearly computer accessories –particularly monitors – and computers are complementary goods and are goods for which the earlier marks had been registered.
28 In those circumstances, the assessment of the Board of Appeal must be upheld, in accordance with settled case-law that goods or services are complementary where there is a close connection between them, in the sense that one is indispensable or important for the use of the other and therefore consumers may think that responsibility for the production of those goods or provision of those services lies with the same undertaking (see Case T‑316/07 Commercy v OHIM – easyGroup IP Licensing (easyHotel) [2009] ECR II‑43, paragraphs 57 and 58 and case-law cited).
Comparison of the signs
29 According to settled case-law, the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs in question, must be based on the overall impression given by the signs, bearing in mind, inter alia, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this 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 case-law cited).
30 Assessment of the similarity between two marks means more than taking just one component of a compound trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks at issue as a whole, which does not mean that the overall impression conveyed to the relevant public by a compound trade mark may not, in certain circumstances, be dominated by one or more of their components (see OHIM v Shaker, paragraph 41 and case-law cited). It is only if all the other components of the mark are negligible that the assessment of 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 is the case where this component is likely to dominate, by itself, the image of that mark which the relevant public keeps in mind, with the result that all the other components of the mark make a negligible contribution to the overall impression created by it (Nestlé v OHIM, paragraph 43).
31 Furthermore, 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 (Case T‑359/02 Chum v OHIM – Star TV (STAR TV) [2005] ECR II‑1515).
32 In the present case, the applicant claims that visually the earlier marks CMORE and its application for a figurative mark comprising the word element ‘see more’ have no word or figurative elements in common. In its view, the figurative element of its mark, that is to say the stylised monitor, represents the dominant part of the contested mark which attracts consumers’ attention. In addition, in so far as account must be taken of the distinctive elements of the signs at issue, the applicant observes that the word ‘more’ is not distinctive for the goods at issue, which precludes the conclusion that the signs are similar.
33 In that regard, it must be noted that the word ‘see’, written in grey, is surrounded by a casing in blue representing a screen. The word ‘more’ is next to the screen in the same shade of blue. If, as the applicant claims, the figurative element is capable of attracting relevant consumers’ attention, it is mainly because it highlights the words ‘see more’ by its graphic design and the colours used. Contrary to the applicant’s contention, the casing representing a screen in blue is a decorative element which cannot be regarded as the dominant element of the mark applied for but which highlights the verbal element ‘see more’.
34 In those circumstances, it must be held, as the Board of Appeal did, that the verbal elements ‘see more’, due to the graphic element which highlights them, are likely to dominate the overall impression of the product which the mark applied for creates in the mind of the relevant public.
35 That conclusion cannot be called into question by the applicant’s assertion that the word ‘more’ has no distinctive character. It should be borne in mind, that weak distinctive character of an element of a compound mark does not necessarily imply that that element cannot constitute a dominant element where – owing, in particular, to its position in the sign or its size – it may make an impression on consumers and be remembered by them (Case T‑153/03 Inex v OHIM – Wiseman (representation of a cowhide) [2006] ECR II‑1677, paragraph 32, and Case T‑7/04 Shaker v OHIM – Limiñana y Botella (Limoncello della Costiera Amalfitana shaker) [2008] ECR II‑3085, paragraph 44).
36 The applicant also maintains that, visually, the signs at issue are of different length, consisting of different numbers of words and letters, only four of which are identical and in the same position (more). The applicant submits that consumers pay more attention to the initial part of marks than to their final part. The applicant concludes that the signs at issue are visually dissimilar.
37 First, as regards the visual comparison of the signs at issue, it must be noted that the number of letters in ‘see more’ and ‘cmore’, respectively composed of seven and five letters, is different. In addition, clearly the initial parts of the two signs at issue are dissimilar in that the mark applied for begins with the word ‘see’ whereas the earlier mark starts with the letter ‘c’.
38 Although, as the applicant maintains, the consumer normally attaches more importance to the first part of words (see, to that effect, Joined Cases T‑183/02 and T‑184/02 El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR) [2004] ECR II‑965, paragraph 81), which in this case are dissimilar, it should be noted that that does not, on any view, apply in all cases nor call into question the principle that the examination of the similarity of trade marks must take into account the overall impression produced by them (see judgment of 7 October 2010 in Case T‑244/09 Accenture Global Services v OHIM – Silver Creek Properties (acsensa), not published in the ECR, paragraph 23 and case-law cited).
39 In addition, while the specific figurative features of the element ‘see more’ enable it to be differentiated from the earlier marks, they should nevertheless not be taken into consideration, since the earlier marks are word marks and nothing prevents them from being used in different scripts, even in a form comparable to that used by the mark applied for (see judgment of 29 October 2009 in Case T‑386/07 Peek & Cloppenburg v OHIM – Redfil (Agile), not published in the ECR, paragraph 27 and case-law cited).
40 Despite the visual differences which have been noted, it should however be pointed out that the word ‘more’ is present in the final part of the two signs at issue, so that the Board of Appeal correctly considered that the marks at issue present, despite the differences, a low degree of similarity.
41 Second, regarding the phonetic comparison, it must be noted that, contrary to what the applicant argues, the number of syllables and the pronunciation of the terms ‘seemore’ and ‘cmore’ are similar in English.
42 The applicant takes the view that the Board of Appeal erroneously held that the relevant public in Denmark and Finland pronounces the marks at issue following English phonetic rules. In that respect, as noted by OHIM, in the area of computer products the average consumer is familiar with the use of English terms (see, to that effect, Presto! BizCard Reader, paragraph 56), particularly as the terms ‘cmore’ and ‘see more’ are in common use in English and the relevant public will immediately perceive them as being terms from that language. In addition, it is well known that as knowledge of English is widespread in Denmark and Finland, the terms ‘cmore’ and ‘see more’ will be pronounced according to English phonetics (see, to that effect, judgment of 26 November 2008 in Case T‑435/07 New Look v OHIM (NEW LOOK), not published in the ECR, paragraph 23).
43 Even if, as the applicant claims, the sign CMORE, owing to the combination of letters, were pronounced according to the Danish and Finnish phonetic rules, that cannot call the preceding conclusion into question, as the letter ‘c’ and the word ‘more’ will be immediately perceived by the relevant public as coming from English terminology.
44 The applicant also submits that the verbal element of its mark is descriptive of the goods applied for. Even if the verbal element of the mark applied for could be considered to be descriptive, the relevant public, when referring to that mark, will nevertheless pronounce exclusively its word element, notwithstanding the Community case-law according to which the public does not consider a descriptive element of a compound mark as the distinctive and dominant element in the overall impression produced by that mark (see Presto! Bizcard Reader, paragraph 56 and case-law cited).
45 Therefore, the Board of Appeal was correct to find that the marks at issue were phonetically identical.
46 Third, as regards the conceptual comparison, it must be noted that, where they are linked to computers and computer accessories, the signs CMORE and SEE MORE will be understood by the average consumer as ‘to see more’. The applicant wrongly claims that the Board of Appeal did not explain the basis of its assessment of the conceptual similarity. It follows, in fact, from paragraph 17 of the contested decision that the Board of Appeal considered that the marks at issue would be perceived by a significant part of consumers as a fanciful play on words referring to the same concept ‘see more’. According to the Board of Appeal, the term ‘cmore’ will also be understood as a misspelling of the expression ‘see more’, in particular as, in the context of SMS exchanges on mobile phones, it is common usage that certain letters are replaced by numbers and/or abbreviations.
47 Since the two signs at issue contain the word ‘more’ and the letter ‘c’ of the earlier marks, CMORE will probably be associated by a significant part of the general public in Denmark and Finland with an abbreviation or misspelling of the verb ‘to see’ in English in view of the common practice of sending SMS, the Board of Appeal correctly considered that the relevant public would perceive, in the signs at issue, the concept as ‘see more’.
48 It cannot be held, as the applicant maintains, that it follows from Community case-law that conceptual similarity must be based on the visual perception of the mark and not on the phonetic similarity. Indeed, it has been held that despite a low degree of visual similarity and a certain phonetic similarity, it can nevertheless be considered that conceptually signs at issue are similar (judgment of 25 June 2010 in Case T‑407/08 MIP Metro v OHIM – CBT Comunicación Multimedia (Metromeet) [2010] ECR II‑0000, paragraphs 36 to 41). Moreover, it should be pointed out that, although there will not necessarily always be a likelihood of confusion where two signs are found to be only phonetically similar, it is nevertheless conceivable that the marks’ phonetic similarity alone could create a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94. However, it should be recalled that the existence of such a likelihood must be established as part of a global assessment of the conceptual, visual and phonetic similarities between the signs at issue and that the assessment of any phonetic similarity is only one of the relevant factors for the purpose of that global assessment (see judgment of 10 December 2008 in Case T‑290/07 MIP Metro v OHIM – Metronia (METRONIA), not published in the ECR, paragraph 56 and case-law cited).
49 In the light of the foregoing, the Board of Appeal was right to conclude that, from the point of view of the relevant public, there is a low degree of visual similarity between the marks at issue and that they are phonetically and conceptually identical.
The likelihood of confusion
50 A global assessment of the likelihood of confusion implies some interdependence between the relevant factors, and in particular a low degree of similarity between the goods or services covered may be offset by a high degree of similarity between the marks, and vice versa (see, by analogy, Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 17).
51 Furthermore, the visual, phonetic or conceptual aspects of the marks at issue do not always have the same weight and it is accordingly appropriate to examine the objective conditions under which the marks may be present on the market, since the extent of the similarity or difference between the marks at issue may depend, in particular, on their inherent qualities or the conditions under which the goods or services covered by the marks are marketed. If the goods covered by the mark in question are usually sold in self-service stores where consumers choose the goods themselves and must therefore rely primarily on the image of the trade mark applied to the goods, a visual similarity between the signs will as a general rule be more important. If, on the other hand, when they are marketed, the goods are primarily sold orally, greater weight will usually be attributed to any phonetic similarity between the signs (Joined Cases T‑117/03 to T‑119/03 and T‑171/03 New Look v OHIM − Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection) [2004] ECR II‑3471, paragraph 49, and the judgment of 23 January 2008 in Case T‑106/06 Demp v OHIM – Bau How (BAUHOW), not published in the ECR, paragraph 44).
52 The applicant complains that the Board of Appeal did not consider that the phonetic similarity of the marks at issue is of less importance in this case in the assessment of the likelihood of confusion, as the goods at issue are marketed in such a way that, when making a purchase, the relevant public’s perception of the mark designating those goods is usually visual.
53 However, although computers and computer accessories are in fact sold to consumers ‘as seen’ on shelves in self-service, an oral discussion of the characteristics of the goods and their mark is also likely to take place at the time of purchase. Besides, those goods could be advertised orally, on radio or by other consumers. Therefore, in the assessment of the likelihood of confusion, the phonetic identity between the marks at issue, is, in this case, at least as important as their visual similarity (judgment of 15 September 2009 in Case T‑446/07 Royal Appliance International v OHIM – BSH Bosch und Siemens Hausgeräte (Centrixx), not published in the ECR, paragraph 60).
54 The applicant also maintains that the registered marks, since the signs are liable to be descriptive for the goods for which they are registered, cannot override a later mark which contains one of those descriptive elements. The applicant maintains that the mark CMORE was registered by the Danish and Finnish trademark offices only as a combination of the letter ‘c’ and the word ‘more’ and as being fanciful. Otherwise indirect trademark protection would be granted to descriptive words, which would clearly breach Article 4 of Regulation No 40/94. The applicant also claims that the earlier marks have no enhanced degree of distinctiveness.
55 In that respect, it should be recalled that the sole fact that the earlier word mark has been registered as a national or international trade mark does not prevent it from being largely descriptive or, in other words, from having only a weak intrinsic distinctive character in relation to the goods and services it covers (judgments of 13 October 2009 in Case T‑146/08 Deutsche Rockwool Mineralwoll v OHIM – Redrock Construction (REDROCK), not published in the ECR, paragraph 26, and of 17 February 2011 in Case T‑10/09 Formula One Licensing v OHIM – Global Sports Media (F1-LIVE) [2011] ECR II‑0000, paragraph 46).
56 In this context, the validity of an international or national trade mark may not be called into question in proceedings for registration of a Community trade mark, but only in cancellation proceedings brought in the Member State concerned (see Limoncello della Costiera Amalfitana shaker, paragraph 26 and case-law cited).
57 Without examining the question whether the sign CMORE is descriptive for the relevant public, the Court notes that even in a case involving a mark of weak distinctive character there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see Case T‑134/06 Xentral v OHIM – Pages jaunes (PAGESJAUNES.COM) [2007] ECR II‑5213, paragraph 70 and case-law cited). Although the distinctive character of the earlier mark must be taken into account when assessing the likelihood of confusion, it is only one factor among others involved in that assessment (see, to that effect, Limoncello della Costiera Amalfitana shaker, paragraph 56 and case-law cited).
58 Furthermore, the degree of similarity between the goods covered by the marks at issue in this case and the degree of similarity between those marks, considered cumulatively, are sufficiently high to be able to conclude that there is a likelihood of confusion, irrespective of the degree of distinctiveness of the earlier mark.
59 In the light of all the foregoing, the Court considers that the Board of Appeal did not err in finding that the likelihood of confusion could not be excluded.
60 It follows that the action must be dismissed as unfounded, and there is no need to adjudicate on the applicant’s second head of claim which seeks to have the Court reject the intervener’s opposition to registration of the trade mark applied for.
Costs
61 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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 (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders NEC Display Solutions Europe GmbH to pay the costs.
Papasavvas | Vadapalas | O’Higgins |
Delivered in open court in Luxembourg on 23 September 2011.
[Signatures]