JUDGMENT OF THE COURT (Fifth Chamber)
6 September 2012 (*)
(Appeal – Community trade mark – Regulation (EC) No 40/94 – Article 8(1)(b) – Likelihood of confusion – Word mark ‘U.S. POLO ASSN.’ – Opposition by the holder of the earlier word mark ‘POLO-POLO’)
In Case C‑327/11 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 June 2011,
United States Polo Association, established in Lexington (United States), represented by P. Goldenbaum, Rechtsanwältin,
appellant,
the other party to the proceedings being:
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of M. Safjan, President of the Chamber, M. Ilešič (Rapporteur) and M. Berger, Judges
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having regard to the written procedure and further to the hearing on 24 April 2012,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its appeal, United States Polo Association (‘United States Polo’) asks the Court to set aside the judgment of the General Court of the European Union of 13 April 2011 in Case T‑228/09 United States Polo Association v OHIM – Textiles CMG (U.S. POLO ASSN.) (‘the judgment under appeal’), by which that Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 20 March 2009 (Case R 886/2008-4) (‘the contested decision’) concerning opposition proceedings between Textiles CMG SA (‘Textiles CMG’) and United States Polo.
Legal context
2 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) was repealed by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which entered into force on 13 April 2009. Nevertheless, in view of the time at which the events occurred, the present case remains governed by Regulation No 40/94.
3 Article 8(1) of Regulation No 40/94 provided:
‘(1) Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:
...
(b) 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 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.’
Background to the dispute
4 On 31 August 2005, United States Polo filed an application for registration of a Community trade mark at OHIM, under Regulation No 40/94. The trade mark for which registration was sought is the word sign ‘U.S. POLO ASSN.’.
5 The goods in respect of which registration was sought are in Classes 9, 20, 21, 24 and 27 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of Registration of Marks, as revised and amended, and correspond, for Class 24, to the following description: ‘Textiles, in particular bed sheets, pillowcases, flat sheets, terry towels, beach towels, blankets, bedspreads, cushion covers, quilts, table cloths, table mats, table runners, wallpaper (included in class 24)’.
6 On 18 May 2006, Textiles CMG filed a notice of opposition, pursuant to Article 42 of Regulation No 40/94, to registration of the mark at issue in respect of the goods in Class 24 referred to in paragraph 5 above.
7 The opposition was based on Spanish registration No 2179234 of the earlier word mark POLO-POLO and on Community registration No 4322971 of the earlier word mark POLO-POLO.
8 The Spanish mark POLO-POLO had been filed on 6 August 1998 and registered on 20 September 1999 for goods in Class 24 corresponding to the following description: ‘bed sheets, table linen, eiderdown, textile table and bed clothing’. The Community mark POLO-POLO had been filed on 4 March 2005 and registered on 30 May 2006 for goods in Class 24 corresponding to the following description: ‘Textiles, textile goods not included in other classes, bed and table linen’ and services in Classes 35 and 39.
9 The opposition was based solely on the Class 24 goods covered by the earlier national and Community registrations and was directed against the goods in the same class covered by the application for registration of the Community mark.
10 The ground relied upon in support of that opposition was that referred to in Article 8(1)(b) of Regulation No 40/94.
11 By decision of 17 April 2008, the Opposition Division of OHIM upheld Textiles CMG’s opposition.
12 On 11 June 2008, United States Polo filed a notice of appeal with OHIM, pursuant to Articles 57 to 62 of Regulation No 40/94, against that decision.
13 By the contested decision, the Fourth Board of Appeal of OHIM dismissed that appeal. It took the view, after comparing the mark applied for with only the earlier Community mark, that the Opposition Division had been right to allow the opposition since there was a likelihood of confusion on the part of the relevant public between the marks at issue in respect of the goods in Class 24. First, the goods in Class 24 covered by the earlier Community mark were identical to those covered by the Community mark applied for. Second, the signs at issue were visually, phonetically and conceptually similar. In conclusion, the Board of Appeal found that, in view of the identity of the goods in question and the visual, phonetic and conceptual similarities between the signs at issue, there was a likelihood of confusion on the part of the relevant public, namely the average consumer in the European Union, who might have only an imperfect recollection of the earlier mark POLO-POLO.
The proceedings before the General Court and the judgment under appeal
14 By application lodged at the Registry of the General Court on 11 June 2009, United States Polo brought an action for annulment of the contested decision.
15 In support of its action, United States Polo relied on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 40/94. It contended, first, that the Board of Appeal of OHIM failed to apply principles established by the settled case-law of the Court of Justice and the General Court and, second, that the Board of Appeal was wrong to find that the marks at issue were visually, phonetically and conceptually similar and that there was therefore a likelihood of confusion.
16 The General Court rejected that plea in law as unfounded.
17 After recalling, in paragraphs 20 to 22 of the judgment under appeal, the case-law on the likelihood of confusion with an earlier mark, the General Court proceeded to analyse the relevant public, compare the goods and signs at issue and analyse the likelihood of confusion.
18 With regard to the relevant public, the General Court found, in paragraph 26 of the judgment under appeal, that the Board of Appeal was right to hold that the relevant public was composed of average consumers in the European Union who do not demonstrate a high level of attention.
19 Concerning the similarity of the goods, the General Court stated, in paragraph 27 of the judgment under appeal, that United States Polo has not disputed the Board of Appeal’s finding that the goods covered by the marks at issue are identical.
20 As regards the similarity of the signs at issue, the General Court pointed out, in paragraphs 28 and 29 of the judgment under appeal, the settled case-law of the Court on visual, phonetic and conceptual similarities between two marks. Moreover, the Court referred, in paragraph 30 of the judgment under appeal, to case-law according to which the comparison of the marks in question must be made by examining each of those marks as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite mark may not, in certain circumstances, be dominated by one or more of its components. Lastly, the General Court explained that, according to settled case-law, it is only if all the other components of the mark are negligible that assessment of the similarity can be carried out solely on the basis of the dominant element.
21 However, the General Court rejected, in paragraph 33 of the judgment under appeal, United States Polo’s argument that the contested decision was based on the dominant character of the word ‘polo’ and that the Board of Appeal of OHIM made its assessment by comparing the signs at issue in the light of that one element. The General Court observed, in that regard, that the Board of Appeal had taken into consideration all the elements of the mark applied for, but had held that the initials ‘U.S.’ and the abbreviation ‘ASSN.’ were not sufficient to remove a certain amount of similarity between the signs at issue.
22 The General Court subsequently proceeded, in paragraphs 35 to 50 of the judgment under appeal, to compare the signs at issue visually, phonetically and conceptually.
23 So far as concerns, in the first place, the visual similarity of the signs at issue, the General Court took the view, in paragraph 36 of the judgment under appeal, that the fact that the earlier Community mark is made up of two occurrences of the word ‘polo’, linked by a hyphen, did not itself prevent visual comparison of the two signs, nor was it such as to exclude any visual similarity between the signs at issue. It then rejected, in paragraph 37 of the judgment under appeal, United States Polo’s argument that the beginning of the mark applied for – the initials ‘U.S.’ – is the part that particularly attracts the relevant public’s attention on the ground that the acronym, which stands for the United States of America, would be perceived by the non-English speaking section of the relevant public, ‘at most as relating to the geographical origin of the goods, and cannot therefore be regarded as being particularly distinctive’.
24 The General Court also rejected the arguments put forward by United States Polo in respect of the differences between the two signs in terms of their length, structure and number of letters. In that regard, the General Court held as follows in paragraph 38 of the judgment under appeal:
‘(38) … the applicant’s arguments that the signs at issue are distinguishable in that they are of different lengths and have different structures, and in particular in that the mark applied for is composed of seven different letters whilst the earlier Community mark is composed of only three, provide no basis for considering that there is no visual similarity between those signs since, first, they contain the word “polo” and, second, the other two elements of the mark applied for are short, being initials and an abbreviation, and have no meaning as such. Those factors are capable of giving that word an independent distinctive role in the mark applied for considered overall. Therefore, as stated in the contested decision, the relevant public is in a position visually to recognise the mark applied for by the element that it has in common with the earlier Community mark.’
25 In the light of those arguments, the General Court held, at paragraph 39 of the judgment under appeal, that the Board of Appeal of OHIM was right to find that the signs at issue were visually similar to a medium degree.
26 So far as concerns, in the second place, the phonetic similarity between the two signs, the General Court held as follows in paragraphs 40 and 41 of the judgment under appeal:
‘(40) At the phonetic level, the fact that the earlier Community mark is in particular made up of a single word, repeated, provides no basis for considering that there is no similarity between the signs at issue, even if it is not disputed that such repetition of a single word is likely to produce a particular impression. In each of those signs the word “polo” is the only element that will be pronounced with separate syllables, although [United States Polo] has not demonstrated that when it is pronounced that word is accentuated differently in the earlier Community mark, as it maintained at the hearing. Moreover, as the elements [“U.S.”] and [“ASSN.”] in the mark applied for are perceived as an acronym or abbreviations by the English‑speaking section of the relevant public, as the Board of Appeal found, they will be pronounced by that public letter by letter, or even left unsaid by the majority of that public. Lastly, the fact that those signs contain a different number of syllables and letters is secondary on the phonetic level, due to the presence in the mark applied for of the elements [“U.S.”] and [“ASSN.”], which will be pronounced letter by letter or simply left unsaid.
(41) The Board of Appeal was therefore right to hold that the signs at issue were phonetically similar to a medium degree.’
27 In the third place, with regard to the conceptual similarity of the signs, the General Court rejected United States Polo’s argument that the Board of Appeal limited its conceptual comparison of the signs only to the word ‘polo’, understood as a sport, and wrongly failed to take into account the distinctive character of the elements ‘U.S.’ and ‘ASSN.’ appearing in the Community mark applied for. In that regard, the General Court reiterated that the element ‘U.S.’, which corresponds to the acronym ‘US’, ‘will be perceived by the non-English-speaking section of the relevant public at most as relating to the geographical origin of the goods, and cannot therefore be regarded as being particularly distinctive’. So far as concerns the element ‘ASSN.’, the General Court took the view that United States Polo had not shown that the meaning of that abbreviation would be perceived by the non‑English-speaking section of the relevant public. Therefore, for a section of the relevant public that element cannot be regarded as having any particular conceptual connotation and, therefore, cannot be considered to be sufficiently distinctive as to remove all conceptual similarity between the signs at issue. The General Court also rejected, in paragraphs 46 and 47 of the judgment under appeal, United States Polo’s argument that the relevant public perceives, in the mark applied for, the name of an American institution in the field of the sport of polo, as well as the argument that the word ‘polo’ has several meanings in Spanish. The Board of Appeal of OHIM was therefore right to find that the signs at issue were conceptually similar to a medium degree.
28 In the light of the foregoing, the General Court found, in paragraph 50 of the judgment under appeal, that the Board of Appeal was also right to find that the signs at issue were similar to a medium degree.
29 Next, the General Court proceeded, in paragraphs 51 and 52 of the judgment under appeal, to analyse the likelihood of confusion between the signs at issue, stating the following:
‘(51) A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and that of the goods or services concerned. Accordingly, a lesser degree of similarity between the goods or services designated may be offset by a greater degree of similarity between the marks and vice versa. In the present case, the Court finds that the goods covered by the marks at issue are identical and that the respective signs of those marks are similar to a medium degree.
(52) In the light of the fact that the goods covered by the marks at issue will be purchased by average consumers in the European Union and that, as the Board of Appeal found, consumers will not generally pay particular attention when buying this type of goods, the similarity of the signs at issue creates a likelihood of confusion, including the likelihood of association, between those marks within the European Union.’
30 The General Court rejected the various arguments and evidence put forward by United States Polo in order to challenge that finding.
31 Thus it rejected the United States Polo’s reference to opposition proceedings B 959 884 and B 1 021 254 between United States Polo and Textiles CMG concerning, respectively, registration of the word sign ‘U.S. Polo Association’ and registration of the figurative sign ‘U.S. POLO ASSN. since 1890’, designating goods in the same class as those covered by the mark applied for. In that regard, the General Court pointed out, in paragraph 54 of the judgment under appeal, in particular that decisions concerning registration of a sign as a Community mark which the Boards of Appeal of OHIM are called on to take under Regulation No 40/94 are adopted in the exercise of circumscribed powers and are not a matter of discretion and that, accordingly, the question whether a sign may be registered as a Community mark must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of a previous practice of OHIM.
32 As for United States Polo’s argument that average consumers in the European Union are familiar with its name since it is the proprietor of Community marks designating goods in Classes 14, 18 and 25, the General Court accepted, in paragraph 56 of the judgment under appeal, that it could not be entirely excluded that, in certain cases, the coexistence of earlier marks on the market might reduce the likelihood of confusion. However, it noted that that possibility could be taken into consideration only if, at the very least, during the proceedings before OHIM concerning relative grounds for refusal, the applicant for the Community mark had duly demonstrated that such coexistence was based upon the absence of any likelihood of confusion, on the part of the relevant public, between the earlier marks upon which it relied and the earlier mark on which the opposition was based, and provided that the earlier marks in question and the marks at issue are identical. However, the Court held that, in the present case, despite the fact that during the administrative proceedings United States Polo produced a list of the various earlier Community marks of which it is the proprietor, in support of the assertion that those registrations coexisted on the market with the opponent’s earlier mark, it was not adequately established that the likelihood of confusion between the marks at issue had been reduced.
33 The General Court also stated, in paragraph 58 of the judgment under appeal, that although United States Polo claimed that the relevant public was aware of the fact that there are many names of polo clubs and other institutions in the field of polo which have already been registered as trade marks, in particular for goods in Classes 24 and 25, it had not provided any evidence to that effect.
34 Lastly, the General Court rejected, in paragraph 59 of the judgment under appeal, United States Polo’s argument that Textiles CMG was able to file the earlier Community mark, even though the well-known POLO mark existed and was owned by a third undertaking. Since it was not raised before either the Opposition Division or the Board of Appeal of OHIM, the argument was declared inadmissible.
35 In the light of the foregoing, the General Court held, in paragraph 60 of the judgment under appeal, that the Fourth Board of Appeal of OHIM was correct in finding that there was a likelihood of confusion between the marks at issue and, therefore, dismissed United States Polo’s action.
Forms of order sought before the Court of Justice
36 United States Polo claims that the Court should:
– set aside the judgment under appeal and annul the contested decision; and
– order OHIM to pay the costs.
37 OHIM contends that the appeal should be dismissed and that United States Polo be ordered to pay the costs.
The appeal
38 In support of its appeal, United States Polo relies on a single ground of appeal, divided into four parts, alleging infringement of Article 8(1)(b) of Regulation No 40/94.
The first part of the ground of appeal
Arguments of the parties
39 By the first part of its ground of appeal, United States Polo claims that the General Court erred in law by considering, in paragraph 38 of the judgment under appeal, that the element ‘POLO’ has an independent distinctive function in the mark applied for.
40 The General Court thus disregarded the principles laid down by the Court of Justice in Case C‑120/04 Medion [2005] ECR I‑8551. That judgment can by no means be construed as establishing a general rule that any element of normal distinctiveness shared by two marks is to be regarded as having an independent distinctive role in a composite sign. That would amount to acknowledging that any word with normal distinctiveness included in an earlier mark could be relied on to oppose the registration of a mark composed of this common element and any other elements which are short and less distinctive than the common element, even if this common element does not dominate the overall impression. United States Polo contends, moreover, that the mark applied for does not include the earlier mark, unlike the case which gave rise to the judgment in Medion.
41 OHIM submits that the first part of the ground of appeal is manifestly unfounded since, in the present case, the General Court did not apply the principles laid down in Medion. Although the General Court makes reference, in paragraph 30 of the judgment under appeal, to the concept of an independent distinctive role, it nevertheless examined each of the marks at issue as a whole. The fact that the General Court found that the element ‘POLO’ was the more distinctive element of the mark applied for does not mean that the other elements were completely disregarded.
42 OHIM further submits that, even if the present case had to be examined from the perspective of the principles laid down in Medion, the outcome of the case would remain the same. In that regard, OHIM claims that, if the judgment in Medion applies where the common element is regarded as less distinctive, those principles apply, a fortiori, where the common element is regarded as more distinctive. It adds that the principles laid down by the Court in Medion may apply even to facts that are not identical to those of that case. Lastly, OHIM notes that the higher degree of distinctive character of an element in a composite sign and the assessment as to whether that element has an ‘independent distinctive role’ constitute, in any event, findings of fact which may not be made the subject of appeal.
Findings of the Court
43 Under Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of an earlier mark, the mark applied for is not to be registered if, because of its identity with or similarity to the earlier mark and the identity or similarity of the goods or services covered by the marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. Such a likelihood of confusion includes the likelihood of association with the earlier mark.
44 In that regard, it is apparent from settled case-law that the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (see, in particular, Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 34; Case C‑498/07 P Aceites del Sur-Coosur v Koipe [2009] ECR I‑7371, paragraph 46; and Case C‑317/10 P Union Investment Privatfonds v UniCredito Italiano [2011] ECR I‑0000, paragraph 45).
45 It is also apparent from settled case-law that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. 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, in particular, Medion, paragraph 28; Case C‑206/04 P Mülhens v OHIM [2006] ECR I‑2717, paragraph 19; and OHIM v Shaker, paragraph 35).
46 However, in paragraphs 30 and 31 of Medion, the Court held that, beyond the usual case where the average consumer perceives a mark as a whole, it is quite possible that in a particular case an earlier mark used by a third party in a composite sign including the name of the company of the third party still has an independent distinctive role in the composite sign, without necessarily constituting the dominant element. In such a case, the overall impression produced by the composite sign may lead the public to believe that the goods or services in question come, at the very least, from companies which are linked economically, in which case the likelihood of confusion must be held to be established.
47 The first part of the ground put forward by United States Polo in support of its appeal should be examined in the light of those principles.
48 In that regard, it must be noted, at the outset, that the judgment under appeal contains no explicit reference to the judgment in Medion.
49 The General Court referred, in paragraphs 28 and 30 of the judgment under appeal, to the case-law as noted in paragraphs 44 and 45 above. On the basis of those considerations, the General Court visually, phonetically and conceptually compared the signs at issue and carried out a global assessment of the likelihood of confusion.
50 Admittedly, the General Court found, in paragraph 38 of the judgment under appeal, in its visual comparison of the signs at issue, that the word ‘POLO’ has an independent distinctive role in the mark applied for, when considered overall, and that, therefore, the relevant public is in a position visually to recognise the mark applied for by the element that it has in common with the earlier Community mark.
51 However, contrary to United States Polo’s claim, the General Court’s finding in paragraph 38 of the judgment under appeal does not show that it disregarded the principles laid down by the Court of Justice in Medion. In that paragraph, far from taking the view that the circumstances of the present case constituted a particular case such as that referred to in paragraph 30 of Medion, the General Court merely pointed out that the element ‘POLO’ had more distinctive character in the word sign applied for, and had an impact on the visual similarity of the signs at issue, when considered overall.
52 It follows, first, that, despite its finding in paragraph 38 of the judgment under appeal, the General Court did not apply the principles laid down in Medion concerning the independent distinctive role that an element may have in a mark and, secondly, that it did indeed carry out an overall assessment of the marks at issue, taking into account all factors relevant to the circumstances of the present case.
53 The first part of the ground of appeal must, therefore, be rejected as unfounded.
The second part of the ground of appeal
Arguments of the parties
54 By the second part of its ground of appeal, United States Polo complains that the General Court attributed exclusive and excessive importance to the common element ‘POLO’.
55 By doing so, the General Court disregarded the settled case-law according to which the comparison of the marks at issue must be made by examining each of those marks as a whole. The General Court, in paragraphs 45 and 46 of the judgment under appeal, stressed the weak distinctive character of the elements ‘U.S.’ and ‘ASSN.’ in the mark applied for, whereas, according to settled case‑law, it is only if all the other components of the mark are negligible – and not just of weak distinctive character – that assessment of the similarity can be carried out solely on the basis of the dominant element. United States Polo points out that that case-law applies, a fortiori, because the General Court found that the element ‘POLO’ is not dominant in the mark applied for.
56 OHIM submits, by contrast, that the General Court took full account of the other elements in the mark applied for and examined in exhaustive detail their relative importance for the overall impression of the signs at issue. In so far as United States Polo criticises the General Court’s assessment of the similarities between the marks at issue, OHIM notes that that assessment was of a factual nature which is not therefore, save where the facts and evidence are distorted, a question of law subject to review by the Court on appeal.
Findings of the Court
57 In accordance with settled case-law, in the context of consideration of the likelihood of confusion, assessment of the similarity between two marks means more than taking just one component of a composite mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite mark may not, in certain circumstances, be dominated by one or more of its components (see Medion, paragraph 29, and OHIM v Shaker, paragraph 41). Nevertheless, it is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (see OHIM v Shaker, paragraph 42).
58 In the present case, it does not appear from the judgment under appeal that, for the purposes of assessing the similarity of the signs at issue, the General Court considered that, in the mark applied for, the element ‘POLO’ was of exclusive importance or that the assessment was carried out solely on the basis of that element.
59 Even though the General Court found, in paragraphs 44 and 45 of the judgment under appeal, that the elements ‘U.S.’ and ‘ASSN.’ were not particularly distinctive, it is apparent from those paragraphs that it took full account of those elements and examined their relative importance for the overall impression of the signs at issue. Accordingly, in paragraph 45, the General Court found, as regards the element ‘U.S.’, that ‘although that element constitutes an additional element of conceptual differentiation in relation to the earlier Community mark, the acronym US cannot be considered to be sufficiently distinctive to remove all conceptual similarity between the signs at issue’. In the same paragraph, the General Court held, so far as concerns the element ‘ASSN.’, that it cannot be considered to be sufficiently distinctive to remove all conceptual similarity between the signs at issue.
60 In those circumstances, United States Polo’s argument that the General Court failed to carry out its comparison of the marks at issue by examining each of those marks as a whole is unfounded.
61 Moreover, in so far as United States Polo is seeking to call into question the manner in which the General Court weighed up those criteria, it should be noted that the analysis carried out by the General Court in that regard is factual in nature.
62 Under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted – and no allegation to that effect has been made in the present case – constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, Aceites del Sur-Coosur v Koipe, paragraph 78, and Case C‑254/09 P Calvin Klein Trademark Trust v OHIM [2010] ECR I‑7989, paragraph 49 and the case-law cited).
63 The second part of the ground of appeal must therefore be rejected as partly unfounded and partly inadmissible.
The third part of the ground of appeal
Arguments of the parties
64 By the third part of its ground of appeal, United States Polo claims that the General Court failed to fully take into account all circumstances of the case and, in particular, the repetition of the element ‘POLO’ in the earlier sign ‘POLO‑POLO’. The earlier mark ‘POLO-POLO’, viewed as a whole, does not have a meaning in any European Union language and, therefore, the General Court’s conceptual comparison of the two signs is vitiated by error.
65 OHIM submits that the third part of the ground of appeal is inadmissible or manifestly unfounded. To the extent that the importance that the General Court attributed to the repetition of the word ‘POLO’ was an assessment of a factual nature, which is not, save where the facts and evidence are distorted, subject to review by the Court on appeal, the third part of the ground of appeal is inadmissible. In any event, even if it is found that United States Polo has implicitly pleaded such a distortion, OHIM contends that the General Court duly took into account the repetition of the word ‘POLO’ and drew appropriate conclusions therefrom.
Findings of the Court
66 With regard to the third part of the ground of appeal, it must be found that United States Polo’s arguments are intended to show that the General Court’s assessment of the repetition of the element ‘POLO’ in the earlier sign ‘POLO-POLO’ and its impact on the conceptual comparison of the two signs was incorrect.
67 As has been pointed out in paragraph 62 above, an appeal lies on points of law only and the General Court thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence, save where they have been distorted.
68 Since United States Polo has not alleged any distortion of the facts or evidence submitted to the General Court, the third part of the ground of appeal must be rejected as inadmissible.
The fourth part of the ground of appeal
Arguments of the parties
69 By the fourth part of its ground of appeal, United States Polo claims that the General Court’s reasoning is inconsistent and contradictory in its assessment of the elements ‘U.S.’ and ‘ASSN.’ and of their impact on the similarities between the signs at issue, and that those inconsistencies and contradictions led to an incorrect assessment of the likelihood of confusion.
70 While the General Court held, in paragraph 37 of the judgment under appeal, that the element ‘U.S.’ will be perceived by the relevant public as relating to a geographical region, it went on to find, in paragraph 38, that the elements ‘U.S.’ and ‘ASSN.’ have no particular meaning. Furthermore, with regard to the element ‘ASSN.’ the General Court wrongly accepted that it would be overlooked by the relevant public on the ground that they might not understand the meaning of the abbreviation.
71 OHIM submits that the fourth part of the ground of appeal is of a factual nature and is, therefore, manifestly inadmissible. In any event, United States Polo’s allegations are unfounded, since the General Court correctly compared the signs at issue both conceptually and for the purposes of the overall assessment of the likelihood of confusion.
Findings of the Court
72 So far as concerns the fourth part of the ground of appeal concerning the General Court’s assessment of the elements ‘U.S.’ and ‘ASSN.’ and of their impact on the similarities between the signs at issue, it must be stated that the appeal is, in reality, asking the Court to substitute its own assessment of the facts for that of the General Court.
73 The General Court’s findings on the relevant public’s perception of the element ‘U.S.’, in paragraphs 37 and 38 of the judgment under appeal, and in respect of the meaning of the element ‘ASSN.’, in paragraph 45 of that judgment, constitute findings of fact which are not subject to review by the Court on appeal, save where they have been distorted, as was pointed out in paragraph 62 above.
74 Since no distortion of the facts or evidence has been alleged, the Court is not competent to carry out an assessment of them. Accordingly, the fourth part of the ground of appeal must be rejected as unfounded.
75 Having regard to the foregoing considerations, the appeal must be dismissed as partly unfounded and partly inadmissible.
Costs
76 Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since OHIM has applied for costs to be awarded against United States Polo and the latter has been unsuccessful, United States Polo must be ordered to pay the costs.
On those grounds, the Court (Fifth Chamber) hereby:
1. Dismisses the appeal;
2. Orders United States Polo Association to pay the costs.
[Signatures]