JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
26 July 2023 (*)
(EU trade mark – Opposition proceedings – Application for EU word mark CAMEL CROWN – International registration of the earlier figurative mark camel active – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Joined Cases T‑562/21 and T‑590/21,
Worldwide Brands, Inc. Zweigniederlassung Deutschland, established in Cologne (Germany), represented by J.L. Gracia Albero, E. Cebollero González and B. Tomás Acosta, lawyers,
applicant in Case T‑562/21,
Guangdong Camel Apparel Co. Ltd, established in Foshan (China), represented by C. Bercial Arias and F. Codevelle, lawyers,
applicant in Case T‑590/21,
v
European Union Intellectual Property Office (EUIPO), represented, in Case T‑562/21, by D. Walicka and V. Ruzek, acting as Agents, and, in Case T‑590/21, by D. Walicka,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court in Case T‑562/21, being
Guangdong Camel Apparel Co. Ltd, established in Foshan, represented by C. Bercial Arias and F. Codevelle,
and
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court in Case T‑590/21, being
Worldwide Brands, Inc. Zweigniederlassung Deutschland, established in Cologne, represented by J.L. Gracia Albero,
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, D. Petrlík and S. Kingston (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure, in particular the decision of 11 November 2022 joining Cases T‑562/21 and T‑590/21 for the purposes of the oral part of the procedure and of the decision closing the proceedings,
further to the hearing on 15 February 2023,
gives the following
Judgment
1 By their actions under Article 263 TFEU, the applicant in Case T‑562/21, Worldwide Brands, Inc. Zweigniederlassung Deutschland, and the applicant in Case T‑590/21, Guangdong Camel Apparel Co. Ltd, each seek the partial annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2021 (Joined Cases R 159/2020-5 and R 184/2020-5) (‘the contested decision’).
Background to the dispute
2 On 29 March 2018, Guangdong Camel Apparel filed an application for registration of an EU trade mark with EUIPO pursuant to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
3 Registration as a mark was sought for the word sign CAMEL CROWN.
4 The goods in respect of which registration was sought are in, inter alia, Classes 18, 24, 25 and 28 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 18: ‘Animal skins; imitation leather; purses; game bags [hunting accessories]; school bags; travelling trunks; backpacks; pocket wallets; bags for climbers; handbags; travelling bags; travelling bags [leatherware]; suitcases; haversacks; garment bags for travel; valises; sports bags; shoulder bags; credit card cases; business card cases; luggage tags; leather trimmings for furniture; leather laces; leather straps; reins for guiding children; garment bags for travel made of leather; briefcases; wrist mounted purses; labels of leather; suitcases with wheels; umbrellas; alpenstocks; mountaineering sticks; canes; walking stick seats; walking stick handles; leather leads; saddlery of leather; whips; covers for animals; harness fittings; dog collars; dog coats; reusable shopping bags; attaché cases; bags for campers; suitcase handles; chain mesh purses; luggage; trunks [luggage]; key cases; slings for carrying infants; pouch baby carriers; parasols’;
– Class 24: ‘Woven fabrics; fabrics for textile use; cotton cloths; lining fabric for footwear; fabric for footwear; linings [textile]; gauze [cloth]; silk fabrics for printing patterns; woollen fabric; spun silk fabrics; gauze fabric; linen [fabric]; furnishing and upholstery fabrics; non-woven textile fabrics; labels of textile; wall hangings of textile; felt; towels of textile; handkerchiefs of textile; face towels of textile; cloths for removing make-up; bath towels; dish towels for drying; household linen; bedspreads; quilts; mattress covers; travelling rugs [lap robes]; sheets [textile]; eiderdowns [down coverlets]; bed linen; ticks [mattress covers]; mosquito nets; pillowcases; sleeping bag liners; pillow shams; bed blankets; diaper changing cloths for babies; blankets for household pets; sleeping bags for babies; baby buntings; sleeping bags; table linen, not of paper; coasters of textile; covers for cushions; door curtains; cloth flags; sail cloth’;
– Class 25: ‘Underwear; sweaters; shirts; short-sleeve shirts; ready-made linings [parts of clothing]; breeches for wear; trousers; overcoats; knitwear [clothing]; vests; coats; skirts; sports jerseys; sports singlets; pullovers; dresses; topcoats; jackets [clothing]; parkas; leather coats; tee-shirts; skorts; leggings [trousers]; waterproof jackets; waterproof pants; camisoles; boxer shorts; dressing gowns; tights; sweat-absorbent underwear; waistcoats; slips [underclothing]; bodies [underclothing]; wind coats; down jackets; shirts for infants, babies, toddlers and children; football uniforms; light-reflecting jackets; light-reflecting coats; body suits; warm-up suits; snow suits; singlets; sports jackets; knitted underwear; jerseys [clothing]; babies pants [underwear]; layettes [clothing]; bibs, not of paper; babies trousers; shoes for babies; wet suits for water-skiing; cycling shorts; bathing caps; bathing trunks; swimming trunks; swimsuits; clothing for gymnastics; karate uniforms; leotards; raincoats; ponchos; dance costumes; football boots; football shoes; gymnastic shoes; studs for football boots; ski boots; footwear; bath slippers; boots; half-boots; lace boots; goloshes; galoshes; slippers; beach shoes; wooden shoes; sandals; shoes; sports shoes; boots for sport; valenki [felted boots]; ankle boots; non-slip soles for footwear; tips for footwear; boot uppers; inner soles; footwear uppers; spats; gaiters; trouser straps; gaiter straps; heelpieces for footwear; welts for footwear; soles for footwear; heels; running shoes; track and field shoes; mountaineering shoes; rain boots; insoles for footwear; climbing shoes; hiking boots; footwear for women; riding shoes; boots for motorcycling; caps [headwear]; hats; ear muffs [clothing]; headbands [clothing]; hosiery; stocking suspenders; pantyhose; socks; gloves [clothing]; muffs [clothing]; ski gloves; shawls; neckties; scarves; veils; mantillas; kerchiefs; pocket squares; mufflers [neck scarves]; turbans; braces for clothing [suspenders]; belts [clothing]; girdles; leather belts [clothing]; albs; shower caps; sleep masks; eyeshades as headwear’;
– Class 28: ‘Games; apparatus for games; handheld game consoles; protective films adapted for screens for portable games; ring games; marbles for games; kites; counters [discs] for games; slides [playthings]; dolls; toy masks; gyroscopes and flight stabilizers for model aircraft; scooters [toys]; flying discs [toys]; toy vehicles; remote-controlled toy vehicles; scale model vehicles; toy furniture; shoes for dolls; musical toys; toy robots; tricycles for infants [toys]; checkers [games]; bingo cards; playing cards; balls for games; billiard table cushions; billiard balls; bowling apparatus and machinery; hockey sticks; golf bags, with or without wheels; rackets; badminton shuttlecocks; billiard cues; stationary exercise bicycles; body-building apparatus; body-training apparatus; chest expanders [exercisers]; rollers for stationary exercise bicycles; dumb-bells; hang gliders; spring bars for exercising; bows for archery; archery implements; archery targets; baseball bats; baseball bat cases; golf balls; nets for sports; fitted protective covers specially adapted for sports equipment, namely, golf club, tennis racket, skis; soft tennis balls; rubber baseballs; sleds [sports articles]; edges of skis; machines for physical exercises; bindings for alpine skis; darts; barbells; surfboards; ski edges; sole coverings for skis; skis; climbers’ harness; toy gliders; skateboards; surfboard leashes; trampolines; yoga straps; waterskis; ski sticks; ski poles; kendo bamboo swords; relay batons; boards used in the practice of water sports; yoga blocks; play swimming pools; inflatable pool toys; boxing gloves; shin guards [sports articles]; fencing gloves; baseball gloves; elbow guards for athletic use; knee guards for athletic use; protective paddings [parts of sports suits]; gloves for golf; swimming jackets; skating boots with skates attached; roller skates; ice skates; in-line roller skates; snowshoes; bowling gloves; ice skate blades; rugby gloves; protective supports for shoulders and elbows [sports articles]; kendo plastrons; catchers’ masks; toy Christmas trees; artificial fishing bait; rods for fishing; landing nets for anglers; floats for fishing; fish hooks; lures for hunting or fishing; fishing tackle; fishing lines; reels for fishing; creels [fishing traps]; gut for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; scent lures for hunting or fishing; fish cages for use in recreational fishing; fishing rod holders; fishing sinkers; camouflage tape used in hunting; nets for sports’.
5 On 11 September 2018, Worldwide Brands filed a notice of opposition to registration of the mark applied for. After partial withdrawal of the opposition on 25 January 2019, the opposition remained directed against the goods in Classes 18, 24, 25 and 28 referred to in paragraph 4 above.
6 The opposition was based on the international registration designating the European Union of 5 July 2017, reproduced below:
7 The goods in respect of which protection in the European Union was granted are in Classes 9, 14, 18 and 25 and correspond, inter alia, for each of those classes, to the following description:
– Class 9: ‘Eyeglasses, sunglasses, binoculars; cases, chains, cords, lenses and frames for glasses’;
– Class 14: ‘Precious metals and their alloys and goods in precious metals or coated therewith (included in this class); jewellery, precious stones; horological and chronometric instruments and cases therefor; watch straps; key rings’;
– Class 18: ‘Leather and leather imitations, as well as products therefrom (included in this class); backpacks, school bags, satchels, shopping bags, book bags, shoulder bags, hand bags, waist bags, travelling bags, wallets, coin purses and purses, key cases, trunks and suitcases; umbrellas, parasols and walking sticks; animal skins, hides; whips; harness and saddlery’;
– Class 25: ‘Clothing, footwear, headgear’.
8 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.
9 On 22 November 2019, the Opposition Division partially upheld the opposition, namely for the following goods which it regarded as identical or similar to varying degrees to the goods covered by the earlier mark:
– Class 18: all the applied for goods except for: ‘leather trimmings for furniture; leather laces; walking stick handles; suitcase handles’;
– Class 24: ‘woven fabrics; fabrics for textile use; cotton cloths; lining fabric for footwear; fabric for footwear; linings [textile]; gauze [cloth]; silk fabrics for printing patterns; woollen fabric; spun silk fabrics; gauze fabric; linen [fabric]; furnishing and upholstery fabrics; non-woven textile fabrics; felt; diaper changing cloths for babies; blankets for household pets; sleeping bags for babies; baby buntings; sail cloth’;
– Class 25: all the applied for goods except for: ‘ready-made linings [parts of clothing]; non slip soles for footwear; tips for footwear; boot uppers; footwear uppers; gaiter straps; trouser straps; heelpieces for footwear; welts for footwear; soles for footwear; heels’;
– Class 28: all the applied for goods except for: ‘games; apparatus for games; handheld game consoles; protective films adapted for screens for portable games; ring games; marbles for games; kites; counters [discs] for games; slides [playthings]; dolls; toy masks; gyroscopes and flight stabilizers for model aircraft; scooters [toys]; flying discs [toys]; toy vehicles; remote-controlled toy vehicles; scale model vehicles; toy furniture; shoes for dolls; musical toys; toy robots; tricycles for infants [toys]; checkers [games]; bingo cards; playing cards; toy gliders; play swimming pools; inflatable pool toys; toy Christmas trees’.
10 On 20 and 22 January 2020, Guangdong Camel Apparel and Worldwide Brands, respectively, filed notices of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
11 By the contested decision, the Board of Appeal partially upheld the respective appeals of Guangdong Camel Apparel and Worldwide Brands.
12 The Board of Appeal found that, contrary to what the Opposition Division had decided, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 for the following goods, which it found to be identical and similar to varying degrees in respect of the goods covered by the earlier mark:
– Class 18: ‘leather trimmings for furniture; leather laces; walking stick handles; suitcase handles’;
– Class 24: ‘labels of textile’;
– Class 25: ‘ready-made linings [parts of clothing]; non-slip soles for footwear; tips for footwear; boot uppers; footwear uppers; gaiter straps; trouser straps; heelpieces for footwear; welts for footwear; soles for footwear; heels’.
13 Moreover, contrary to what the Opposition Division had decided, the Board of Appeal found that, in respect of the following goods which it regarded as dissimilar to those covered by the earlier mark, a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 was ruled out:
– Class 24: ‘sail cloth’;
– Class 28: ‘balls for games; billiard table cushions; billiard balls; bowling apparatus and machinery; hockey sticks; rackets; badminton shuttlecocks; billiard cues; stationary exercise bicycles; body-building apparatus; body-training apparatus; chest expanders [exercisers]; rollers for stationary exercise bicycles; dumb-bells; hang gliders; spring bars for exercising; bows for archery; archery implements; archery targets; baseball bats; baseball bat cases; golf balls; nets for sports; fitted protective covers specially adapted for sports equipment, namely, golf club, tennis racket, skis; soft tennis balls; rubber baseballs; sleds [sports articles]; edges of skis; machines for physical exercises; bindings for alpine skis; darts; barbells; surfboards; ski edges; sole coverings for skis; skis; climbers’ harness; skateboards; surfboard leashes; trampolines; yoga straps; waterskis; ski sticks; ski poles; kendo bamboo swords; relay batons; boards used in the practice of water sports; yoga blocks; roller skates; ice skates; in-line roller skates; ice skate blades; artificial fishing bait; rods for fishing; landing nets for anglers; floats for fishing; fish hooks; lures for hunting or fishing; fishing tackle; fishing lines; reels for fishing; creels [fishing traps]; gut for fishing; bite indicators [fishing tackle]; bite sensors [fishing tackle]; scent lures for hunting or fishing; fish cages for use in recreational fishing; fishing rod holders; fishing sinkers; camouflage tape used in hunting; nets for sports’.
14 The appeals were dismissed as to the remainder and, consequently, the Opposition Division’s decision was upheld in respect of the other goods.
Forms of order sought
Case T‑562/21
15 Worldwide Brands claims that the Court should:
– partially annul the contested decision to the extent that the Board of Appeal upheld the appeal of Guangdong Camel Apparel and dismissed its appeal;
– order EUIPO and Guangdong Camel Apparel to pay the costs, including those incurred before the Opposition Division and the Board of Appeal.
16 EUIPO contends that the Court should:
– dismiss the action;
– order Worldwide Brands to pay the costs.
17 Guangdong Camel Apparel contends that the Court should:
– dismiss the action;
– order Worldwide Brands to pay the costs.
Case T‑590/21
18 Guangdong Camel Apparel claims that the Court should:
– partially annul the contested decision to the extent that the Board of Appeal refused registration of the mark applied for on the ground that there was a likelihood of confusion between the signs at issue;
– order EUIPO and Worldwide Brands to pay the costs.
19 EUIPO contends that the Court should:
– dismiss the action;
– order Guangdong Camel Apparel to pay the costs.
20 Worldwide Brands contends that the Court should:
– dismiss the action;
– order Guangdong Camel Apparel to pay the costs, including those incurred before the Opposition Division and the Board of Appeal.
Law
21 In support of its action in Case T‑562/21, Worldwide Brands relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/2001. It disputes the findings of the Board of Appeal concerning the comparison of the goods. EUIPO, supported by Guangdong Camel Apparel, contends that Worldwide Brands’ arguments should be rejected.
22 In Case T‑590/21, Guangdong Camel Apparel raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It disputes the findings of the Board of Appeal concerning, first, the comparison of the goods and, secondly, the comparison of the signs at issue. Supported by Worldwide Brands, EUIPO contends that the plea should be rejected.
23 Article 8(1)(b) of Regulation 2017/2001 provides that, 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 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.
24 According to settled case-law, 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. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
25 For the purposes of applying Article 8(1)(b) of Regulation 2017/2001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
26 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 at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/2001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
The relevant public
27 The Board of Appeal stated that the relevant public in respect of which the likelihood of confusion had to be assessed was the European Union as a whole and that it would examine the perception of the Spanish-speaking and English-speaking publics. Next, it noted that the relevant public consisted of the public at large and that some of the goods were also aimed at a professional public. As regards the level of attention of the relevant public, the Board of Appeal found that account had to be taken of the level of attention of the consumer who forms part of the public at large, varying in this case from average to high.
28 Those assessments are not disputed by the applicants.
The comparison of the goods
As regards the goods in Class 18
– ‘Leather trimmings for furniture; leather laces’
29 In paragraphs 48 and 51 of the contested decision, the Board of Appeal found that the ‘leather trimmings for furniture’ and the ‘leather laces’ of the mark applied for were identical or similar to the goods covered by the earlier mark.
30 In Case T‑590/21, Guangdong Camel Apparel disputes the Board of Appeal’s assessment, arguing that the purpose, method of use, distribution channels, relevant public and manufacturers of the goods in question are different. It submits that the goods covered by the mark applied for are made by specialist undertakings as furniture or footwear components. The goods in question are, moreover, neither complementary nor in competition with each other.
31 However, the Board of Appeal was fully entitled to find, in paragraph 48 of the contested decision, that the ‘leather trimmings for furniture’ and the ‘leather laces’ of the mark applied for were identical to the following goods in Class 18 covered by the earlier mark: ‘leather and leather imitations, as well as products therefrom (included in this class)’.
32 Where the goods covered by the earlier mark include the goods covered by the trade mark application, those goods are considered to be identical (see judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraphs 34 to 38 and the case-law cited).
– ‘Walking stick handles; suitcase handles’
33 In paragraphs 52 to 53 of the contested decision, the Board of Appeal found that the ‘walking stick handles’ and the ‘suitcase handles’ covered by the mark applied for were similar to the goods covered by the earlier mark.
34 In Case T‑590/21, Guangdong Camel Apparel disputes the Board of Appeal’s assessment, arguing that the purpose, method of use, distribution channels, relevant public and manufacturers of the goods in question are different. It submits also in that context that the goods covered by the mark applied for are made by specialist undertakings as walking stick and suitcase components. It alleges that the goods in question are, moreover, neither complementary nor in competition with each other.
35 However, the Board of Appeal’s assessment that those goods are similar to an average degree to the ‘walking sticks’ and the ‘suitcases’ covered by the earlier mark on account of the complementary relationship that exists between those goods must be upheld.
36 According to the case-law, in assessing the similarity of the goods and services at issue, all the relevant factors relating to those goods and services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and 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 judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
37 In particular, complementary goods are those which are closely connected in the sense that one is essential or significant for using the other so that consumers may think that the same company is responsible for manufacturing those goods (see judgment of 11 May 2011, Flaco-Geräte v OHIM – Delgado Sánchez (FLACO), T‑74/10, not published, EU:T:2011:207, paragraph 40 and the case-law cited).
38 However, the only purpose of a walking stick handle or a suitcase handle is to be used on a walking stick or a suitcase. ‘Walking stick handles’ and ‘suitcase handles’ may be sold with the ‘walking sticks’ and the ‘suitcases’ of the earlier mark as complementary items and are intended for use with a walking stick or a suitcase. Consequently, some consumers perceive there to be a close connection between ‘walking stick handles’ and ‘suitcase handles’, on the one hand, and ‘walking sticks’ and ‘suitcases’ on the other, and they may therefore be led to think that the same undertaking is responsible for manufacturing those goods.
39 In that regard, the judgment of 27 October 2005, Editions Albert René v OHIM – Orange (MOBILIX) (T‑336/03, EU:T:2005:379, paragraph 61), relied on by Guangdong Camel Apparel, cannot call into question this conclusion.
40 In that judgment, it was held that the mere fact that a particular good is used as a part, element or component of another does not suffice in itself to show that the finished goods containing those components are similar since, in particular, their nature, intended purpose and the customers for those goods may be completely different. In the present case, a ‘walking stick handle’ or a ‘suitcase handle’ is not only a part, element or component of a walking stick or a suitcase. As has been pointed out in paragraph 38 above, those goods are necessarily intended to complete walking sticks and suitcases, which are thus essential to the goods, and vice versa.
41 Accordingly, it is necessary to reject Guangdong Camel Apparel’s arguments concerning the comparison of the goods in Class 18.
As regards the goods in Class 24
– ‘Labels of textile’
42 In paragraph 58 of the contested decision, the Board of Appeal found that the ‘labels of textile’ of the mark applied for were similar to an average degree to the ‘bags’ of various kinds and the ‘suitcases’ of the earlier mark in Class 18.
43 In Case T‑590/21, Guangdong Camel Apparel disputes that assessment, arguing that the nature, purpose and method of use of the goods in question are different.
44 In that regard, it must be observed that the Board of Appeal correctly found that the ‘labels of textile’ were similar to an average degree to the ‘bags’ and the ‘suitcases’ of the earlier mark. The ‘labels of textile’ may be used for identification purposes on the ‘bags’ of various kinds and on the ‘suitcases’ of the earlier mark. In such a situation, they are therefore complementary to those ‘bags’ and ‘suitcases’ in accordance with the case-law referred to in paragraph 37 above, in addition to being available in the same sales outlets and being sold and distributed alongside the ‘bags’ and the ‘suitcases’ of the earlier mark.
45 Accordingly, Guangdong Camel Apparel’s argument disputing the similarity of the ‘labels of textile’ with the goods covered by the earlier mark must be rejected.
– ‘Towels of textile; face towels of textile; bath towels; household linen’
46 In paragraphs 59 and 66 of the contested decision, the Board of Appeal found that the ‘towels of textile; face towels of textile; bath towels; household linen’ of the mark applied for in Class 24 and the ‘clothing’ of the earlier mark in Class 25 were dissimilar.
47 Worldwide Brands claims that the ‘clothing’ of the earlier mark encompasses goods such as bath robes and that, therefore, they have the same nature, the same purpose and are in competition with the ‘towels of textile; face towels of textile; bath towels; household linen’ covered by the mark applied for.
48 However, as the Court held in paragraph 48 of the judgment of 15 October 2020, Body Attack Sports Nutrition v EUIPO – Sakkari (Sakkattack) (T‑788/19, not published, EU:T:2020:484), it cannot be assumed that the general category of ‘clothing, footwear, headgear’ in Class 25, covered by the earlier mark, necessarily covers specific goods such as bath robes. In the present case, the earlier mark did not cover bath robes and, consequently, Worldwide Brands’ arguments concerning the similarity between bathrobes, on the hand, and ‘towels of textile; face towels of textile; bath towels; household linen’, on the other, are ineffective.
– ‘Sail cloth’
49 In paragraphs 63 and 64 of the contested decision, the Board of Appeal noted, in essence, that the ‘sail cloth’ in Class 24 covered by the mark applied for differed from the ‘leather and leather imitations’ in Class 18 covered by the earlier mark.
50 Worldwide Brands submits that, since ‘sail cloth’ is manufactured from a wide variety of materials, the fact that it may be used for the manufacture of sails does not rule out that it has the same purpose as ‘leather and leather imitations’, namely to be used for manufacturing other goods.
51 It should be noted, as EUIPO and Guangdong Camel Apparel did, that the purpose of the ‘sail cloth’ in Class 24, covered by the mark applied for, on the one hand, and that of the ‘leather and leather imitations’ in Class 18, covered by the earlier mark, on the other, is different. ‘Sail cloth’ is used to manufacture sails and must, consequently, be capable of capturing and redirecting wind in order to move a sailing boat. By contrast, ‘leather and leather imitations’ do not have that purpose.
52 Moreover, there is nothing in the file making it possible to claim that ‘leather and leather imitations’ are suited to the conditions, in particular, weather conditions, to which ‘sail cloth’ is subjected and that average consumers therefore regard it as normal that ‘sail cloth’ is manufactured in that material.
53 As regards the use of the goods in question, even though ‘sail cloth’ is sometimes used to manufacture other goods, as are ‘leather and leather imitations’, this is not their main use.
– Home textiles serving practical or ornamental purposes
54 In paragraphs 59 and 62 of the contested decision, the Board of Appeal found that the home textiles serving practical or ornamental purposes, namely the ‘wall hangings of textile; handkerchiefs of textile; cloths for removing make-up; dish towels for drying; bedspreads; quilts, mattress covers; travelling rugs [lap robes]; sheets [textile]; eiderdowns [down coverlets]; bed linen; ticks [mattress covers]; mosquito nets; pillowcases; sleeping bag liners; pillow shams; bed blankets; sleeping bags; table linen, not of paper; coasters of textile; covers for cushions; door curtains; cloth flags’ covered by the mark applied for, on the one hand, and the ‘clothing, footwear and headgear’ of the earlier mark, on the other, were dissimilar.
55 Worldwide Brands argues that there is a market trend whereby home textiles serving practical or ornamental purposes come from the same undertakings as those which sell the ‘clothing, footwear and headgear’ covered by the earlier mark. It submits that those goods may be sold by the same distributors under the same mark and that they may therefore be perceived by the public as having the same origin.
56 In that respect, it should be noted that the nature and purpose of home textiles serving practical or ornamental purposes are different to those of the ‘clothing, footwear and headgear’ in Class 25 covered by the earlier mark. The latter are intended, inter alia, to protect the body against the elements, whereas the former serve to decorate the home and to make domestic life enjoyable or comfortable.
57 As for Worldwide Brands’ arguments, alleging a partial overlap as regards the origin and the distribution channels of those goods, it suffices to recall that, in examining the similarity between goods, consumers must consider it usual that the goods are sold under the same trade mark, which normally implies that a large number of the producers or distributors of the goods are the same (judgment of 12 February 2015, Compagnie des montres Longines, Francillon v OHIM – Cheng (B), T‑505/12, EU:T:2015:95, paragraph 60).
58 In that respect, marginal phenomena cannot, without other supporting evidence, lead the Court to take the view that two categories of goods are manufactured by the same undertakings and share the same distribution channels (judgment of 4 June 2013, i-content v OHIM – Decathlon (BETWIN), T‑514/11, not published, EU:T:2013:291, paragraph 38).
59 In the present case, even though some manufacturers and some stores, respectively, do produce and offer both ‘wall hangings’, ‘linens’, ‘curtains’, among other things, as well as ‘clothing, footwear and headgear’, the applicant does not show that this is a common commercial practice, rather than a marginal phenomenon and that a large part of the respective manufacturers or distributors of those goods are the same. Moreover, the Board of Appeal was fully entitled to find that sales outlets which offer the goods in question at the same time are often large retail stores, in which specific goods are sold in specialist and separate departments.
60 In the light of the above, Worldwide Brands’ arguments raised in Case T‑562/21 concerning the goods in Class 24 must be rejected.
As regards the goods in Class 25
– ‘Ready-made linings [parts of clothing]’
61 In paragraph 68 of the contested decision, the Board of Appeal found that the ‘ready-made linings [parts of clothing]’ covered by the mark applied for displayed at least an average degree of similarity with the ‘clothing’ covered by the earlier mark.
62 In Case T‑590/21, Guangdong Camel Apparel disputes that assessment of the Board of Appeal, submitting that, although the goods covered by the mark applied for are parts for clothing, they do not however have anything in common with the ‘clothing’ covered by the earlier mark which refers to ready-to-wear items. According to Guangdong Camel Apparel, they therefore clearly differ in nature, purpose and method of use. Furthermore, the goods do not coincide in their manufacturers and end users, as the goods covered by the mark applied for are not aimed at the public at large, but rather at manufacturers of clothing. The goods also do not share the same distribution channels.
63 In that respect, it should be observed that the Board of Appal correctly found that the ‘ready-made linings [parts of clothing]’ covered by the mark applied for were similar to an average degree to the ‘clothing’ covered by the earlier mark, relying on the fact that those linings are finished goods, which complement unlined clothing and allow the wearer to wear a garment with or without lining. In accordance with the case-law referred to in paragraph 37 above, those goods, since they may be an integral part of the ‘clothing’ covered by the earlier mark, are closely connected to that clothing in the sense that they are essential and significant for the use of the ‘clothing’ covered by the earlier mark. Therefore, consumers may think that the same undertaking is responsible for manufacturing those goods. They also share the same relevant public and the same distribution channels.
– ‘Non slip soles for footwear; tips for footwear; boot uppers; footwear uppers; trouser straps; gaiter straps; heelpieces for footwear; welts for footwear; soles for footwear; heels’
64 In paragraphs 67 to 71 of the contested decision, the Board of Appeal found that the ‘non slip soles for footwear; tips for footwear; boot uppers; footwear uppers; trouser straps; gaiter straps; heelpieces for footwear; welts for footwear; soles for footwear; heels’ covered by the mark applied for were similar to an average degree to the ‘clothing’ and the ‘footwear’ covered by the earlier mark.
65 In Case T‑590/21, Guangdong Camel Apparel disputes that assessment of the Board of Appeal, submitting that, although the goods covered by the mark applied for are parts for footwear or for clothing, they do not have anything in common with the ‘footwear’ or the ‘clothing’ covered by the earlier mark which refer to ready-to-wear items. Accordingly, Guangdong Camel Apparel claims that those goods differ in nature, purpose and method of use. Furthermore, they do not coincide in their manufacturers and end users, as the goods covered by the mark applied for are not aimed at the public at large, but rather at manufacturers of clothing and footwear. The goods also do not share the same distribution channels.
66 As regards, first of all, ‘trouser straps’ and ‘gaiter straps’, it must be held, as the Board of Appeal found, that those two types of goods are sold as finished goods to the public at large as accessories, respectively, to ‘clothing’ and to ‘footwear’ and they must, for that reason, be regarded as complementary to those goods.
67 In paragraph 69 of the contested decision, the Board of Appeal was fully entitled to find that ‘trouser straps’ were often used by urban cyclists to fasten trousers and to prevent them from being caught in the chain or flapping at the ankle. Consequently, ‘trouser straps’ are used with, and are directly attached to the ‘clothing’ covered by the earlier mark, they may be manufactured by the same undertakings and sold to the same consumers in the same stores. Those goods are, therefore, similar to an average degree.
68 The Board of Appeal also correctly noted, in paragraph 70 of the contested decision, that those considerations applied by analogy to the ‘gaiter straps’ applied for, which serve to attach gaiters to protect feet, ankles and the lower leg from rain, snow or debris during a hike or a walk. It correctly added that, most often, gaiters were used as a shield against moisture while hiking or walking (in rain or snow) and that, consequently, ‘gaiter straps’, just like gaiters, were used with the ‘footwear’ covered by the earlier mark and directly attached to it. All of those goods may, moreover, be manufactured by the same undertakings and sold to the same consumers in the same stores.
69 As regards, next, ‘non slip soles for footwear’, ‘tips for footwear’, ‘boot uppers’, ‘footwear uppers’, ‘heelpieces for footwear’, ‘welts for footwear’, ‘soles for footwear’ and ‘heels’, they are semi-finished goods used in making ‘footwear’ or parts used in the repair of ‘footwear’, and they have, as the Board of Appeal was fully entitled to find, a complementary relationship. Those goods serve no other purpose than to be integrated into the ‘footwear’ covered by the earlier mark. They are therefore essential for the use of the ‘footwear’ covered by the earlier mark, which makes it possible to conclude that all of the goods in question have a functional complementarity.
70 In addition, Guangdong Camel Apparel’s argument that the consumers of the goods in question are different must be rejected. Contrary to that party’s claims, the fact that the ‘non slip soles for footwear’, ‘tips for footwear’, ‘boot uppers’, ‘footwear uppers’, ‘heelpieces for footwear’, ‘welts for footwear’, ‘soles for footwear’ and ‘heels’ covered by the mark applied for will generally be purchased by professionals or by undertakings of the footwear manufacturing sector does not exclude the possibility that those professionals are also purchasers of ‘footwear’.
71 Those considerations make it possible to conclude that the Board of Appeal was fully entitled to find that the goods in question have, in accordance with the case-law cited in paragraph 37 above, a close connection, in addition to being produced by the same manufacturers and distributed by the same distribution channels.
72 Accordingly, it is necessary to reject Guangdong Camel Apparel’s arguments concerning the comparison of the goods in Class 25.
As regards the goods in Class 28
– Sporting and gymnastic articles
73 In paragraphs 78, 80 and 81 of the contested decision, the Board of Appeal found that the sporting and gymnastic articles in Class 28 covered by the mark applied for differed from the ‘clothing, footwear and headgear’ in Class 25 covered by the earlier mark.
74 In Case T‑562/21, Worldwide Brands maintains that sporting and gymnastic articles, on the one hand, and ‘clothing, footwear and headgear’ on the other, are at least similar to a low degree on account of the shared distribution channels, the shared relevant public and their shared manufacturers. According to that party, the relevant public of the goods in Classes 25 and 28 coincides, since sports enthusiasts normally acquire the specific garments and also the appliance and equipment necessary to practice the sport in question. Furthermore, since ‘clothing, footwear and headgear’ are necessary for practising a sport, all of the goods in question are close from the consumers’ perspective. The applicant relies on the judgment of 19 October 2017, Leopard v EUIPO – Smart Market (LEOPARD true racing) (T‑7/15, not published, EU:T:2017:731) in support of its argument.
75 In that respect, it should be noted, first, as the Board of Appeal did, that sporting and gymnastic articles differ in their nature, their purpose and their method of use from the ‘clothing, footwear and headgear’ covered by the earlier mark. ‘Clothing, footwear and headgear’, as has been stated in paragraph 56 above, serve to cover the human body, conceal it, adorn it and protect it against the elements. The sporting and gymnastic articles covered by the mark applied for, such as ‘roller skates’, ‘fishing rods’, ‘trampolines’ or ‘yoga straps’ are used for the enjoyment of their users or are intended to train the body through physical exercise (see, by analogy, concerning ‘balls for play; playing and throwing balls’, judgment of 29 January 2020, Aldi v EUIPO – Titlbach (ALTISPORT), T‑697/18, not published, EU:T:2020:14, paragraph 55).
76 Secondly, the sporting and gymnastic articles covered by the mark applied for and the general category of the clothing covered by the earlier mark are not interchangeable and they are therefore not in competition with each other.
77 Thirdly, although there is a connection between those goods, in the sense that it is necessary to be dressed when practising sport, that connection is not a close connection, such that a product is essential or, at least, important for the use of the other and which implies that consumers may think that the same undertaking is responsible for manufacturing those goods or supplying those services, within the meaning of the case-law cited in paragraph 25 above.
78 Fourthly, the fact that some retail establishments such as large stores or supermarkets sell both ‘clothing’ and sporting articles is insufficient to demonstrate a similarity, since those establishments offer a whole range of different products without consumers automatically attributing a common origin to them (see, to that effect, judgment of 26 October 2011, Intermark v OHIM – Natex International (NATY’S), T‑72/10, not published, EU:T:2011:635, paragraph 37 and the case-law cited). Furthermore, although Worldwide Brands claims that there are producers which manufacture both ‘clothing’ and sporting articles, it adduces no evidence capable of proving that that fact is a common commercial practice, rather than a marginal phenomenon, within the meaning of the case-law recalled in paragraphs 57 and 58 above.
79 Fifthly, the fact that purchasers of ‘clothing’ and sporting articles coincide is not indicative of the similarity between those goods. The group of consumers purchasing ‘clothing’ is extremely wide, since it covers practically all consumers (see, to that effect, judgment of 4 December 2019, Billa v EUIPO – Boardriders IP Holdings (Billa), T‑524/18, not published, EU:T:2019:838, paragraph 52).
80 Lastly, the judgment of 19 October 2017, LEOPARD true racing (T‑7/15, not published, EU:T:2017:731), relied on by Worldwide Brands, is not relevant in the present case, since it concerns a comparison between ‘clothing, footwear and headgear’ on the one hand, and ‘gymnastic and sporting articles not included in other classes’, on the other. In the present case, the mark applied for does not cover ‘gymnastic and sporting articles not included in other classes’, but specific, listed articles, which belong to a limited category of goods such as ‘balls for games’, ‘billiard table cushions’, ‘billiard balls’ or ‘hockey sticks’.
– Toys, games, playthings and accessories thereof
81 In paragraphs 78 to 81 of the contested decision, the Board of Appeal took the view that the toys, games, playthings and accessories thereof in Class 28 covered by the mark applied for, differed from the ‘clothing, footwear and headgear’ in Class 25 covered by the earlier mark.
82 In Case T‑562/21, Worldwide Brands argues that it has adduced evidence of a market practice whereby brands specialised in children’s goods, such as ‘clothing, footwear and headgear’, diversify their product portfolio and now also offer toys. In support of its argument, the applicant relies on the judgment of 16 September 2013, Knut IP Management v OHIM – Zoologischer Garten Berlin (KNUT – DER EISBÄR) (T‑250/10, not published, EU:T:2013:448).
83 It should be noted that Worldwide Brands does not dispute that toys, games, playthings and accessories thereof differ in their nature, their purpose and their method of use from the ‘clothing, footwear and headgear’ covered by the earlier mark. That party does also not call into question the fact that those goods are not interchangeable and that they are sold in specialist departments, even though they may be located close to each other.
84 It must therefore be examined whether the partial overlap of the sales outlets and the market practice pursuant to which some toy manufacturers have allegedly also begun to manufacture ‘clothing’, and vice versa, relied on by Worldwide Brands, suffice to establish a similarity between the goods concerned.
85 In that respect, it should be observed that, generally, ‘clothing’, on the one hand, and toys, on the other, are manufactured by specialist undertakings and are sold in specialist stores (judgment of 29 January 2020, ALTISPORT, T‑697/18, not published, EU:T:2020:14). Furthermore, in accordance with the case-law referred to in paragraphs 57 and 58 above, to find that goods marketed together are similar, it is necessary that such a fact constitutes a common commercial practice rather than an isolated phenomenon.
86 However, the applicant has not demonstrated, apart from isolated instances, that that was the case.
87 As regards the arguments concerning the partial overlap of the sales outlets, as has been stated in paragraph 57 above, even if some stores offer both toys, games, playthings and accessories thereof, and ‘clothing, footwear and headgear’, that mere fact cannot establish a common commercial practice, followed by a large part of distributors.
88 Lastly, as regards the judgment of 16 September 2013, KNUT – DER EISBÄR (T‑250/10, not published, EU:T:2013:448), relied on by Worldwide Brands, it should be noted that, as EUIPO correctly stated, the cases where baby ‘clothing’ is used on toys appear to be rather particular, and cannot be generalised to find a similarity, in general, between toys, games, playthings and accessories thereof, on the one hand, and ‘clothing’, on the other.
89 In the light of the above, Worldwide Brands’ arguments relating to the goods in Class 28 must be rejected.
Conclusion
90 It is necessary to reject all of the arguments raised by the applicants in Cases T‑562/21 and T‑590/21 concerning the comparison of the goods covered by the marks at issue.
The comparison of the signs
91 In Case T‑590/21, Guangdong Camel Apparel submits that the Board of Appeal erred in its assessment of the similarity of the signs at issue. According to that party, the existence of a likelihood of confusion should be ruled out, even as regards the goods found to be identical and those found to be similar to varying degrees.
92 Supported by Worldwide Brands, EUIPO contends that Guangdong Camel Apparel’s argument should be rejected.
93 According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (see, to that effect, judgment of 1 March 2016, BrandGroup v OHIM – Brauerei S. Riegele, Inh. Riegele (SPEZOOMIX), T‑557/14, not published, EU:T:2016:116, paragraph 29 and the case-law cited).
94 Furthermore, the global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, 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 engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
95 In the present case, the signs to be compared are the following:
Earlier mark | Mark applied for |
|
CAMEL CROWN |
96 The sign applied for is a word mark consisting of the terms ‘camel crown’.
97 As the Board of Appeal stated in paragraphs 89 and 90 of the contested decision, the earlier mark is a figurative mark consisting of the words ‘camel’ and ‘active’ written above each other in bold stylised typeface, surrounded by a black and a yellow line with rounded corners, above and below the word combination, respectively.
The distinctive and dominant elements of the signs at issue
98 In paragraph 91 et seq. of the contested decision, the Board of Appeal determined the distinctive elements of the mark applied for and of the earlier mark. It took the view that, concerning those two marks, primarily the word elements are distinctive. As regards the figurative elements, including the colours of the earlier mark, the Board of Appeal found that they would be perceived as decorative, relying on the case-law according to which, where a mark consists of verbal and figurative elements, the former are, as a rule, more distinctive than the latter, since the average consumer will more easily refer to the goods in question by citing the name rather than by describing the figurative element of the mark (judgments of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37, and of 8 June 2022, Polo Club Düsseldorf v EUIPO – Company Bridge and Life (POLO CLUB DÜSSELDORF EST. 1976), T‑355/21, not published, EU:T:2022:348, paragraph 33).
99 Guangdong Camel Apparel argues first of all that the Board of Appeal did not take sufficient account of the figurative elements of the earlier mark, which give a completely different overall impression for the relevant public.
100 However, the Board of Appeal correctly found that the case-law referred to in paragraph 98 above was applicable in the present case, since:
– the typeface used is not of such a nature as to divert the attention from the word element;
– the colour combination black and yellow may be noticed, but it is only a simple variant of numerous colour combinations used in trade (see, to that effect, judgment of 6 May 2003, Libertel, C‑104/01, EU:C:2003:244, paragraph 40), and
– the use of two lines surrounding the word element of the earlier mark is relatively common and generally serves to highlight other elements (see, to that effect, judgment of 15 December 2009, Media-Saturn v OHIM (BEST BUY), T‑476/08, not published, EU:T:2009:508, paragraph 27).
101 In addition, contrary to what Guangdong Camel Apparel submits, the fact that some of the goods in question are in Class 25 does not make it possible to call that finding into question.
102 Although it is true that, according to the case-law, the goods in Class 25 are in a sector in which visual perception of the marks will generally take place prior to purchase, the EU judicature merely infers therefrom that the visual aspect has greater importance in the global assessment of the likelihood of confusion (see, to that effect, judgments of 14 October 2003, Phillips-Van Heusen v OHIM – Pash Textilvertrieb und Einzelhandel (BASS), T‑292/01, EU:T:2003:264, paragraph 55; of 18 May 2011, IIC v OHIM – McKenzie (McKENZIE), T‑502/07, not published, EU:T:2011:223, paragraph 50; and of 24 January 2012, El Corte Inglés v OHIM – Ruan (B), T‑593/10, not published, EU:T:2012:25, paragraph 47).
103 However, that fact does not make it possible to disregard the case-law cited in paragraph 98 above, according to which, where a mark consists of verbal and figurative elements, the former are, as a rule, more distinctive than the latter, that case-law also having been applied several times in cases concerning goods in Class 25 (see, for example, judgments of 16 September 2013, Gitana v OHIM – Teddy (GITANA), T‑569/11, not published, EU:T:2013:462, paragraph 56; of 9 February 2017, zero v EUIPO – Hemming (ZIRO), T‑106/16, not published, EU:T:2017:67, paragraph 33; and of 20 June 2019, Nonnemacher v EUIPO – Ingram (WKU WORLD KICKBOXING AND KARATE UNION), T‑390/18, not published, EU:T:2019:439, paragraphs 65 and 66).
104 Guangdong Camel Apparel’s first argument must therefore be rejected.
105 In paragraph 92 of the contested decision, the Board of Appeal stated that the word element shared by the two marks at issue, namely ‘camel’, referred, according to the Collins English Dictionary, to the large animal that lives in the desert, is used for carrying goods and people and has a long neck and one or two humps, which Spanish consumers would also understand, since the equivalent Spanish word ‘camello’ is very close.
106 In paragraph 93 of the contested decision, the Board of Appeal took account of the fact that the word ‘camel’ also designated a fawn colour, both in English, according to the Collins English Dictionary, and in Spanish (even though that colour is not defined in the Diccionario de la Real Academia Española), and that it corresponded to one of the possible colour variations which some of the goods in question may have.
107 The Board of Appeal noted, however, that that colour did not constitute the sole or even predominant colour that those goods might have, and it had no direct and immediate link with their nature, purpose and method of use.
108 It concluded that the mere fact that some of the goods in question may be more or less available in ‘camel’ colour among other colours, was irrelevant, since it was not ‘reasonable’ to believe that for that reason alone that colour would actually be recognised by the relevant public as a description of an intrinsic characteristic which is inherent to the nature of those goods.
109 Guangdong Camel Apparel submits, in essence, that the signs at issue refer for many consumers to the colour camel, which describes the colour of the goods concerned, and that the term ‘camel’ has, in those circumstances and contrary to what the Board of Appeal decided, only a descriptive or a very weakly distinctive character.
110 In that regard, it should be borne in mind that, according to the case‑law, for the purpose of assessing the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgment of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35).
111 In that context, it has been held that the absence of any direct relationship between the word in question and the goods covered by the marks at issue makes it a distinctive feature of those marks (judgment of 14 January 2016, The Cookware Company v OHIM – Fissler (VITA+VERDE), T‑535/14, not published, EU:T:2016:2, paragraph 40).
112 In the present case, as the Board of Appeal correctly noted, the colour camel does not constitute an ‘intrinsic’ characteristic which is ‘inherent to the nature’ of the goods concerned, but a purely random and incidental aspect which only some of them may have and which does not, in any event, have any direct and immediate link with their nature, their purpose and their method of use (see, by analogy, judgment of 7 May 2019, Fissler v EUIPO (vita), T‑423/18, EU:T:2019:291, paragraph 45). Such goods are available in a multitude of colours, including in the colour camel, which is not more prevalent than the others.
113 Guangdong Camel Apparel’s second argument must therefore be rejected.
114 In paragraph 95 of the contested decision, the Board of Appeal stated that, in the mark applied for, the word ‘crown’ was, in its original meaning in English, an ornamental headdress denoting sovereignty, usually made of gold embedded with precious stones. It added, referring to the Collins English Dictionary, that it was also an award, distinction or title, given as an honour to reward merit or victory. The Board of Appeal also found that it was laudatory in English for the goods applied for, particularly those that may be used in sports or competitions. It explained that the term was also used in the figurative sense to refer to something that is most commendable and that the part of the Spanish-speaking public which understands English might also perceive it in that way. The term ‘camel’ in the initial position, was therefore the most distinctive and dominant element of the mark applied for.
115 Guangdong Camel Apparel argues that, contrary to what was decided by the Board of Appeal, the term ‘crown’ was highly distinctive in relation to the goods in question and that the sign applied for ‘CAMEL CROWN’ also included a clear structure consisting of an adjective – ‘camel’ – accompanied by a noun – ‘crown’ – the former qualifying the latter and the latter being the most distinctive and dominant component of the sign.
116 In that respect, it should be noted that the word ‘crown’ in the mark applied for may tend to exalt in an unspecified manner the nature, function, quality or one of the qualities of the goods to which that mark relates, as that term might do so in respect of all types of other goods and services in trade.
117 That word element may therefore be perceived by the relevant public as a promotional formula which indicates that the goods or the services concerned offer an advantage for consumers in terms of quality compared with competing goods or services (see, to that effect, judgment of 17 December 2014, Lidl Stiftung v OHIM (Deluxe), T‑344/14, not published, EU:T:2014:1097, paragraph 24 and the case-law cited).
118 Accordingly, even though the word element ‘camel’ is placed before the element ‘crown’ – an order which usually corresponds to that of the adjective which qualifies the substantive to which it relates – this does not prevent, in the present case, in the light of the goods in respect of which registration has been applied for, a significant part of the relevant public from perceiving immediately and without further reflection that ‘camel’ refers to a camel as an animal and that ‘crown’ refers to the fact that the goods in question have a quality befitting a royal family or that that term designates the special quality, distinction and reputation of the goods, as the Board of Appeal was fully entitled to decide.
119 In those circumstances, and although it cannot be ruled out that a part of the relevant public may perceive the sign ‘CAMEL CROWN’ as referring, as Guangdong Camel Apparel submits, to a crown in camel colour, the Board of Appeal’s assessment is not vitiated by any error.
120 Guangdong Camel Apparel’s third argument must therefore be rejected.
The visual, phonetic and conceptual comparison of the signs
121 Guangdong Camel Apparel claims that the presence of the term ‘crown’ in the mark applied for makes it possible to visually, phonetically and conceptually distinguish the signs in question.
122 However, as the Board of Appeal was fully entitled to find in paragraphs 96 to 98 of the contested decision, as regards, in the first place, the visual similarity, the signs share, in first position, their most distinctive element, namely ‘camel’, which, as the initial part of a mark, usually has a stronger visual and phonetic impact than the final part of that mark. The terms ‘active’ and ‘crown’ in second position will clearly be noticed, but the second is laudatory and those two terms are not particularly distinctive for a significant part of the public in relation to the majority of the goods concerned. Moreover, the figurative characteristics of the earlier mark will be perceived as a mere embellishment. The Board of Appeal thus correctly found that the signs displayed an average degree of visual similarity.
123 In respect of, in the second place, phonetic similarity, as the Board of Appeal found in paragraphs 99 to 103 of the contested decision, irrespective of the pronunciation rules (in particular in English and Spanish), the pronunciation of the signs coincides in the sound of their most distinctive word ‘camel’, which is in the initial position. However, even though the terms ‘active’ and ‘crown’ in second position are likely to be pronounced, and they create differences in sound, intonation, length and the number of syllables, these are not sufficient to differentiate the signs decisively as far as the overall phonetic impression is concerned. The Board of Appeal correctly found that the signs display an average degree of phonetic similarity.
124 As regards, in the third pace, conceptual similarity, the Board of Appeal was fully entitled to note, in paragraphs 104 to 107 of the contested decision, that the signs shared the semantic notion of ‘camel’ and that, for a significant part of the public, the meanings attached to the words ‘crown’ (particularly for English speakers and the Spanish-speaking public understanding English) and ‘active’ (both for English and Spanish speakers) were weakly distinctive in relation to the majority of the goods concerned. It correctly found that those terms could not counterbalance the shared notion conveyed by the word ‘camel’, since they qualify it (despite the fact that they appear after it) and that, for a significant part of the relevant public, they convey a semantic association with sports and physical pursuits (‘active’) or with an award or title given in a sports competition (‘crown’), or that that latter term also merely refers to something that is most commendable. As the Board of Appeal concluded, conceptually, due to the shared meaning of the term ‘camel’, the signs are similar to, at least, an average degree.
125 Guangdong Camel Apparel’s argument must therefore be rejected.
The likelihood of confusion
126 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 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 (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
127 In order to support its argument that the Board of Appeal incorrectly found that there was a likelihood of confusion between the mark applied for and the earlier mark, Guangdong Camel Apparel notes that the relevant consumer will not be led to think that the goods marketed under the mark applied for have a common origin with the goods marketed under the earlier mark.
128 However, as follows from all the foregoing considerations, the Board of Appeal was fully entitled to find that some of the goods applied for in Classes 18, 24, 25 and 28 were identical, others were similar (to varying degrees) and others were dissimilar. The Board of Appeal also correctly found that, first, the signs at issue were visually, phonetically and conceptually similar to an average degree on account of the shared element ‘camel’, which is the most distinctive element, and, secondly, that the different elements, namely the figurative characteristics of the earlier mark and the word elements ‘active’, on the one hand, and ‘crown’, on the other, could not counterbalance the similarity created by the element ‘camel’.
129 Therefore, in view of the assessments made by the Board of Appeal and the level of attention of the relevant English-speaking and Spanish-speaking public – even to the extent that it may display a high or higher level of attention – it should be found that the Board of Appeal was fully entitled to take the view that there was a likelihood of confusion between the mark applied for and the earlier mark in respect of the goods held to be identical and similar to varying degrees.
130 That finding cannot be called into question by the decision delivered by the Institut national de la propriété industrielle (INPI) (National Industrial Property Institute, France) and upheld by the cour d’appel de Paris (France) (Court of Appeal, Paris, France) by a judgment of 6 April 2022, concerning the national word mark CAMEL CROWN and the international semi-figurative mark camel active, relied on by Guangdong Camel Apparel, in which it was held that, taking into account both the overall differences between those marks and the lack of distinctiveness of their shared element ‘camel’, the signs at issue could not give rise to a likelihood of confusion on the part of the public.
131 The EU trade mark regime is autonomous and the legality of decisions of the Boards of Appeal is to be assessed solely on the basis of Regulation 2017/1001, with the result that EUIPO or, if an action is brought before it, the General Court, is not required to come to the same conclusions as those arrived at by national authorities or courts in similar circumstances (see judgments of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 37, and of 20 January 2021, 12seasons v EUIPO – Société immobilière et mobilière de Montagny (BE EDGY BERLIN), T‑329/19, not published, EU:T:2021:22, paragraph 70).
132 Moreover, as the Board of Appeal noted, that decision is not in any event relevant since the assessment it contains is carried out in relation to the French public and not, as in the present case, in relation to the English-speaking and Spanish-speaking publics (judgment of 20 January 2021, BE EDGY BERLIN, T‑329/19, not published, EU:T:2021:22, paragraph 71).
133 In the light of all the foregoing considerations, since neither of the pleas relied on by the applicants in support of the forms of order sought by them can be upheld, the actions must be dismissed.
Costs
134 Under Article 134(1) 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.
135 In Case T‑562/21, since Worldwide Brands has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and Guangdong Camel Apparel.
136 In Case T‑590/21, since Guangdong Camel Apparel has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and Worldwide Brands.
137 Moreover, Worldwide Brands, as intervener in Case T‑590/21, has applied for Guangdong Camel Apparel to be ordered to pay the costs it incurred in the administrative proceedings before EUIPO. Pursuant to Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. Accordingly, Worldwide Brands’ request that Guangdong Camel Apparel, having been unsuccessful, should be ordered to pay the costs of the proceedings before EUIPO can be allowed only as regards the costs necessarily incurred for the purposes of the proceedings before the Board of Appeal in Case R 159/2020-5.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the actions in Cases T‑562/21 and T‑590/21;
2. In Case T‑562/21, orders Worldwide Brands, Inc. Zweigniederlassung Deutschland to pay the costs;
3. In Case T‑590/21, orders Guangdong Camel Apparel Co. Ltd to pay the costs, including those incurred for the purposes of the proceedings before the Board of Appeal in Case R 159/2020-5.
Delivered in open court in Luxembourg on 26 July 2023.