JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
29 April 2014 (*)
(Community trade mark — Opposition proceedings — Application for the Community word mark SHADOW COMPLEX — Earlier Community word mark BusinessShadow — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑717/13,
Chair Entertainment Group LLC, established in Provo, Utah (United States), represented by E. Armijo Chávarri, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by M. Rajh, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being
Libelle AG, established in Stuttgart (Germany), represented by E. Strauß, lawyer,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 1 October 2013 (Case R 776/2011‑2), relating to opposition proceedings between Libelle AG and Chair Entertainment Group LLC,
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 27 December 2013,
having regard to the response of OHIM lodged at the Court Registry on 11 April 2014,
having regard to the response of the intervener lodged at the Court Registry on 15 April 2014,
having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to rule on the action without an oral procedure pursuant to Article 135a of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1 On 22 April 2009, the applicant, Chair Entertainment Group LLC, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2 The trade mark in respect of which registration was sought is the word sign SHADOW COMPLEX.
3 The goods in respect of which registration was sought are in Class 9 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Computer game software for personal computers and home video game consoles’.
4 The Community trade mark application was published in Community Trade Marks Bulletin No 26/2009 of 13 July 2009.
5 On 9 October 2009, the intervener, Libelle AG (formerly Libelle Informatik GmbH), filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the trade mark applied for in respect of the goods referred to at paragraph 3 above.
6 The opposition was based inter alia on the earlier Community word mark, BusinessShadow, registered on 13 September 2005 under number 3749439, which covers, inter alia, goods in Class 9 corresponding to the following description: ‘Computer software (recorded)’.
7 The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation No 207/2009.
8 On 14 February 2011 the Opposition Division upheld the opposition for all the contested goods.
9 On 8 April 2011, the applicant filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.
10 By decision of 1 October 2013 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal. Essentially, it found that there was a likelihood of confusion between the marks at issue. In particular, the Board of Appeal found that:
– consumers interested both in the goods covered by the trade mark applied for under class 9, and in those covered by the earlier mark, also under class 9, were reasonably well-informed and reasonably observant and circumspect members of the general public of the European Union;
– the goods under class 9 covered by the two trade marks are identical in nature;
– the term (‘shadow’) meaning ‘comparative darkness’ in English, can be used in the market sector concerned with a specific meaning to indicate a copy of a master, ‘shadow copies’;
– the elements (‘business’) and (‘complex’) are likely to be perceived as descriptive elements for the goods at issue. They have a secondary importance in the trade marks;
– although the English-speaking public would understand the meaning of all the words which make up the marks at issue, it would probably not attribute any particular meaning to the two marks in their entirety;
– the signs are visually and phonetically similar to only a low degree because of the presence of the word ‘shadow’. For the part of the public understanding the meaning of the term ‘shadow’, the signs will be conceptually similar;
– there is a likelihood of confusion between the marks at issue at least for the English-speaking part of the general public of the Union. The mark applied for might well be perceived as a variant of the earlier mark;
– since it was found that there was a likelihood of confusion with one of the earlier marks, it was not necessary to examine the other earlier rights relied on in support of the opposition.
Forms of order sought
11 The applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
12 OHIM contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs
13 The intervener contends that the Court should:
– dismiss the action;
– refuse the application for registration of the trade mark
Law
14 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
15 The applicant considers that there is no likelihood of confusion between the marks at issue and disputes, in particular, the claims of the Board of Appeal relating to the composition and the level of attention of the relevant public, as well as the similarity of the products and signs.
16 OHIM and the intervener state that the Board of Appeal was entitled to conclude that there was a likelihood of confusion between the marks at issue.
17 According to Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for may not 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.
18 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 that 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 in Laboratorios RTB v OHIM — Giorgio Beverley Hills (GIORGIO BEVERLEY HILLS), T‑162/01, ECR, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
19 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, 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 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).
20 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 a Community 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 No 207/2009 exists in part of the European Union (see, to that effect, judgment of 14 December 2006 in Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and Others), T‑81/03, T‑82/03 and T‑103/03, ECR, EU:T:2006:397, paragraph 76 and the case-law cited).
21 The present action must be examined in the light of the abovementioned principles.
The relevant public
22 According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, ECR, EU:T:2007:46, paragraph 42 and the case-law cited).
23 The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for (judgment of 1 July 2008 in Apple Computer v OHIM — TKS-Teknosoft (QUARTZ), T‑328/05, EU:T:2008:238, paragraph 23).
24 In the present case, at paragraph 21 of the contested decision, the Board of Appeal took the view, in essence, that the common relevant public for ‘computer software (recorded)’ covered by the earlier mark and for ‘computer game software for personal computers and home video consoles’ was composed of average consumers who are reasonably well informed and reasonably observant and circumspect.
25 The applicant challenges the definition of the relevant public adopted by the Board of Appeal and submits that in the present case the relevant public is made up of consumers belonging to the younger generation who are interested in computer and video games and also of information technology professionals who specialise in this area, the level of attention of all of this relevant public being above average. The applicant refers in this regard to the judgment of 9 September 2010 in adp Gauselmann v OHIM — Maclean (Archer Maclean’s Mercury) T‑106/09, EU:T:2010:380).
26 In the present case, even if the products ‘computer game software for personal computers and home video games consoles’ covered by the trade mark applied for are also directed at a young public, this public cannot be regarded as being the only intended users of the products in question. As set out in paragraph 23 above the relevant public is to be defined taking into account those users likely to use all of the goods at issue. Yet, as is apparent from the documents before the court, the goods covered by the earlier mark, namely, computer software (recorded) are directed at consumers in general. The Board of Appeal was, therefore, entitled to hold that the goods at issue were directed at the general public of the Union.
27 As regards the level of attention of the relevant public, it must be observed that, as OHIM contends, according to case-law, it is the public having the lowest level of attention that should be taken into account to determine the likelihood of confusion (see judgment of 15 July 2011 in Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO), T‑220/09, EU:T:2011:392, paragraph 21 and the case-law cited). It follows that, notwithstanding the possibility that a part of the relevant public might have a higher degree of attention, the Board of Appeal was fully entitled to hold that the degree of attention of the relevant public to be taken into account was the normal degree of attention. The applicant's submissions in this regard are, therefore, ineffective.
The comparison of the goods
28 According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels for the goods concerned (see judgment of 11 July 2007 in El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, ECR, EU:T:2007:219, paragraph 37 and the case-law cited).
29 In that regard, it should be borne in mind that, 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 in Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, ECR, EU:T:2005:420, paragraph 34 and the case-law cited).
30 The Board of Appeal took the view, at paragraph 27 of the contested decision, that the products covered by the earlier mark included those covered by the mark applied for and confirmed the finding of the Opposition Division as regards the identity of the goods at issue.
31 The applicant maintains that the position of the Board of Appeal, granting protection to the earlier mark and all the goods covered by the general indication used, although consistent with paragraphs V and VII of Communication No 2/12 of the President of OHIM of 20 June 2012, is contrary to the principles formulated by the Court of Justice in its judgment of 19 June 2012 in Chartered Institute of Patent Attorneys (C‑307/10, ECR, EU:C:2012:361), in particular paragraphs 49, 61 and 62 of that judgment. According to the applicant, the application of that judgment to the present case should have led the Board of Appeal to examine the existence of an identity or similarity between the goods at issue by reference only to the literal meaning of the list of goods covered by the earlier mark. The applicant takes the view that the application of paragraph V of Communication No 2/12 gives earlier Community trade marks an extensive and inappropriate protection and considers that only ‘complex software for the protection of databases and file systems’ should be considered to be goods covered by the earlier mark which are not similar to the goods covered by the mark applied for.
32 In the context of the application of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25), the question of the interpretation of a reference to the general indications of the class headings of the classification according to the Nice Agreement formed the subject-matter of the judgment in Chartered Institute of Patent Attorneys, paragraph 31 above (EU:C:2012:361). In paragraph 56 of that judgment, the Court of Justice held that such general indications could be used to identify the goods and services covered by the trade mark application, provided that such identification is sufficiently clear and precise.
33 In the present case the heading of the class 9 goods covered by the earlier mark, namely, ‘computer software (recorded)’ is sufficiently clear and precise. The argument advanced by the applicant that 108 goods fell within that category is, in that regard, irrelevant. In so far as the heading under Class 9 contains the term ‘software’, the goods covered by the earlier mark are necessarily identical to computer game software for personal computers and home video games consoles covered by the mark applied for.
34 Moreover, the Court has held that an applicant for a national trade mark who uses all the general indications of a particular class heading of the Nice Classification to identify the goods or services for which the protection of the trade mark is sought must specify whether its application for registration is intended to cover all the goods or services included in the alphabetical list of the particular class concerned or only some of those goods or services. If the application concerns only some of those goods or services, the applicant is required to specify which of the goods or services in that class are intended to be covered (judgment in Chartered Institute of Patent Attorneys, paragraph 31 above, EU:C:2012:361, paragraph 61).
35 Accordingly, the President of OHIM, having regard to the effect of the judgment in Chartered Institute of Patent Attorneys, paragraph 31 above, (EU:C:2012:361) on trade mark applications filed prior to its delivery, published on 20 June 2012, the day after the delivery of that judgment, Communication No 2/12 concerning the use of class headings in lists of goods and services for Community trade mark applications and registrations. It is apparent from paragraph V of that communication that OHIM took the view that, as regards Community trade marks registered before 21 June 2012, the use of all the general indications listed in the class heading of a particular class reflected the applicant’s intention to cover, by his demand, all the goods or services included in the alphabetical list relating to that class (see to that effect, judgment of 30 September 2014 in Scooters India v OHIM — Brandconcern (LAMBRETTA), T‑51/12, EU:T:2014:844, paragraph 25 and the case-law cited).
36 In the present case the earlier Community mark was registered on 13 September 2005.
37 In this regard, the General Court has already recognised that the principle of legal certainty demands that the view be taken that, by using all the general indications listed in a class heading, the proprietor of a Community trade mark registered before Communication No 2/12 came into force intended to cover all the goods or services included in the alphabetical list in that class (see judgment in LAMBRETTA, paragraph 35 above, EU:T:2014:844 paragraph 34 and the case-law cited). It follows that the approach taken in Communication No 2/12 is intended to draw the appropriate conclusions from the judgment in Chartered Institute of Patent Attorneys, paragraph 31 above (EU:C:2012:361). The applicant cannot, therefore, maintain that the Communication is contrary to the principles formulated by the Court in its judgment in Chartered Institute of Patent Attorneys, paragraph 31 above (EU:C:2012:361).
38 It follows that the adjudicating bodies of OHIM were entitled to differentiate between ‘computer software (recorded)’ covered by the earlier mark and ‘computer game software for personal computers and home video games consoles’. None the less, as held by the adjudicating bodies of OHIM, the goods in question are identical in so far as, in accordance with the case-law cited at paragraph 29 above, the goods covered by the earlier mark include those covered by the mark applied for.
The comparison of the signs
39 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 in OHIM v Shaker, C‑334/05 P, ECR, EU:C:2007:333, paragraph 35 and the case-law cited).
40 Assessment of the similarity between two marks means more than taking just one component of a composite trade 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 trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment in OHIM v Shaker, paragraph 39 above, EU:C:2007:333, paragraph 41 and the case-law cited). 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 (judgments in OHIM v Shaker, paragraph 39 above, EU:C:2007:333, paragraph 42, and of 20 September 2007 in Nestlé v OHIM, C‑193/06 P, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment in Nestlé v OHIM, above, EU:C:2007:539, paragraph 43).
41 In the present case the sign for which registration is sought, SHADOW COMPEX, should be compared with the earlier sign BusinessShadow.
42 The applicant maintains that the earlier sign must be understood as being a single word.
43 It should be recalled that, as observed by OHIM, while it is true that the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see OHIM v Shaker, paragraph 39 above, EU:C:2007:333, paragraph 35 and the case-law cited), the fact remains that, when perceiving a word sign, he will break it down into elements which, for him suggest a concrete meaning or which resemble words known to him (see the judgment of 10 July 2012 in Clorox v OHIM — Industrias Alen (CLORALEX), T‑135/11, EU:T:2012:356, paragraph 27 and the case-law cited). In the present case, the general public will recognise in the earlier sign, at least the term ‘business’ signifying ‘economic activity’ and currently used in the business context. The applicant’s argument that it is necessary to understand the earlier sign as being a single word cannot, therefore, succeed.
44 Likewise, the applicant opposes the finding of the Board of Appeal that the term ‘shadow’ is the dominant element in the signs at issue. It maintains that a descriptive element such as ‘shadow’ for a computer programme cannot dominate the visual impression created by the signs at issue and considers that neither of the two signs has a dominant element.
45 It should be noted that the Board of Appeal first of all assessed the distinctive character of all the different elements making up the signs at issue. It took the view that the element ‘business’ was understood by the majority of the relevant public as signifying ‘commercial enterprise’ or ‘economic activity’. As to the element ‘complex’, included in the sign applied for, it is likely to be understood by English, French, Italian and Romanian consumers as meaning ‘consisting of/comprising various parts’ or ‘complicated’. This reasoning on the part of the Board of Appeal should be approved in so far as these two very widely-used elements are at risk of being perceived as having a weak distinctive character for the goods at issue for a large part of the relevant public.
46 As regards the element ‘shadow’, an English word meaning ‘comparative darkness, especially that caused by interception of light’ according to paragraph 30 of the contested decision, in the market sector concerned it can indicate a copy of the master or ‘shadow copy’. However, as the Board of Appeal found, this element combined with the elements ‘business’ or ‘complex’ does not have a descriptive sense. Moreover, it is unlikely that the general public understands the particular significance of the element ‘shadow’ in the information technology sector, in particular when faced with games software for personal computers, the products covered by the trade mark applied for.
47 Accordingly, the element ‘shadow’ is the most distinctive element of each of the signs at issue. The Board of Appeal has, therefore, not made any error.
48 As regards the visual comparison of the signs, the applicant is of the opinion that the signs at issue differ as to the position occupied by the common element ‘shadow’ and the presence of additional elements.
49 In this connection, it must be held that there is a visual similarity between the signs at issue because of the presence in the two signs of the element ‘shadow’. Contrary to the findings of the Board of Appeal, it is appropriate to describe this similarity as average. Admittedly, the two signs each contain an additional word element, namely, ‘business’ and ‘complex’ and the common element ‘shadow’ occupies a different position in each of the signs. However, as observed at paragraph 47 above, the element ‘shadow’ is the most distinctive element in the two signs at issue.
50 Further, the argument of the applicant on the dissimilarity of the signs at issue based on the use of lower and upper case letters in each of the signs should be rejected. That dissimilarity is irrelevant since the protection offered by the registration of a word mark applies to the word stated in the application for registration and not to the graphic or stylistic characteristics which that mark might possess (judgment of 22 May 2008 in Radio Regenbogen Hörfunk in Baden v OHIM (RadioCom), T‑254/06, EU:T:2008:165, paragraph 43).
51 With regard to phonetic comparison, the applicant concedes that the two signs coincide in the pronunciation of the word element ‘shadow’ but differ as a result of the additional elements ‘business’ and ‘complex’.
52 In this respect, it should be noted that the applicant agrees implicitly with the findings of the Board of Appeal which, at paragraph 36 of the contested decision, maintained that a low degree of phonetic similarity existed between the signs in so far as the common element ‘shadow’ occupied a different position in each of the signs.
53 The General Court is, none the less, of the opinion that the phonetic similarity of the signs at issue must be categorised as average, in particular because of the more distinctive character of the element ‘shadow’ (see paragraph 47 above).
54 As regards the conceptual comparison of the signs, the applicant submits that the earlier sign at least possesses a clear meaning that the relevant public was capable of grasping, that is to say, ‘copies of masters or copies for business or for doing business’. The sign applied for, according to the applicant, does not have a clear meaning.
55 The Board of Appeal considered, in essence, that the signs were conceptually similar but only for the part of the relevant public understanding the meaning of the term ‘shadow’.
56 As is apparent from paragraph 45 above, the elements ‘business’ and ‘complex’ will be understood by a considerable part of the relevant public. Likewise, the term ‘shadow’ will be understood, at least by the English-speaking public of the Union, in the literal sense as referring to a shadow. As to the understanding of the element ‘shadow’ in the sense of ‘shadow copy’, the general public, as has already been observed at paragraph 46 above, will not be capable of understanding it in this way. This is a very specific and technical meaning known by professionals and information technology enthusiasts but not by the general public which constitutes the relevant public in the present case. That applies also to the English-speaking part of the general public. The same applies to the earlier sign BusinessShadow which, contrary to the assertions of the applicant, does not convey a clear message in its entirety and can no longer be considered to be descriptive of the products it covers. The applicant’s argument relating to the meaning of the earlier mark is not, therefore, valid.
57 The Board of Appeal was, therefore, entitled to find that a conceptual similarity will exist for the English-speaking public.
The likelihood of confusion
58 The global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the marks and the similarity 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 in Canon, C‑39/97, ECR, EU:C:1998:442, paragraph 17, and VENADO with frame and Others, paragraph 20 above, EU:T:2006:397, paragraph 74).
59 In the present case the Board of Appeal took the view that the goods covered by the trade marks at issue were identical, that the element ‘shadow’ was the most distinctive element in each of the marks, that there was a low degree of visual and phonetic similarity between the signs and that there was a conceptual similarity for the English-speaking public. The Board of Appeal concluded that a likelihood of confusion existed between the marks at issue, at the very least for the English-speaking public of the European Union.
60 The applicant tries, without success, to call that conclusion into question. It should be noted that the applicant does not advance any specific arguments concerning the existence of a likelihood of confusion but maintains, as a matter of fact, that the Board of Appeal reached the wrong conclusion following analysis of all the evidence.
61 Having regard to all the information analysed above, it should be found that there was a likelihood of confusion between the marks at issue in the present case. The goods at issue are identical and the signs have an average visual and phonetic similarity as well as a conceptual similarity for the English-speaking public. Furthermore, it should be emphasised that the signs share their most distinctive element. The Board of Appeal has not, therefore, erred in considering that there was a likelihood of confusion between the marks at issue, at the very least for the English-speaking part of the general public of the European Union.
62 Further, the Board of Appeal was entitled, having found that there was a likelihood of confusion between the mark applied for and the earlier Community word mark BusinessShadow, to take the view that it had no need to analyse whether there was a likelihood of confusion between the mark applied for and the other earlier rights invoked in support of opposition to registration. In this regard, all the arguments the intervener makes based on the existence of its other rights should be rejected as ineffective.
63 In the light of all of the foregoing, the single plea in law and the action in its entirety must be dismissed.
Costs
64 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM.
65 Since the intervener has not applied for the applicant to be ordered to pay the costs, it must bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Dismisses the action;
2. Declares that Chair Entertainment Group LLC is to pay, in addition to its own costs, those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);
3. Declares that Libelle AG is to pay its own costs.
Delivered in open court in Luxembourg on 29 April 2015.
[Signatures]