JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
10 May 2023 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark bistro Régent – Earlier national word mark REGENT – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Genuine use of the earlier mark – Article 18(1), second subparagraph, point (a), and Article 47(2) of Regulation 2017/1001 – Form differing in elements which do not alter the distinctive character)
In Case T‑437/22,
Vanhove, established in Bordeaux (France), represented by N. Castagnon, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by M. Eberl and T. Klee, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being,
Aldi Einkauf SE & Co. OHG, established in Essen (Germany), represented by N. Lützenrath, C. Fürsen, M. Minkner and A. Starcke, lawyers,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva and P. Zilgalvis (Rapporteur), Judges,
Registrar: T. Henze, Acting Registrar,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Vanhove, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 May 2022 (Case R 1113/2021-5) (‘the contested decision’).
Background to the dispute
2 On 14 October 2019, the applicant 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 following figurative sign:
4 The goods and services in respect of which registration was sought are in, inter alia, Class 33 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: ‘Wine’.
5 The trade mark application was published in European Union Trade Marks Bulletin No 200/2019 of 21 October 2019.
6 On 20 January 2020, the intervener, Aldi Einkauf SE & Co. OHG, filed a notice of opposition pursuant to Article 46 of Regulation 2017/1001 to registration of the mark applied for in respect of the goods referred to in paragraph 4 above, namely ‘wine’ in Class 33.
7 The opposition was based on the earlier German word mark REGENT, which was filed on 30 November 1932, registered on 12 January 1933 under the number 452 178 and duly renewed on 30 November 2012 and covers goods in Class 33 corresponding to the following description: ‘Wine, spirits (beverages)’.
8 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.
9 Following a request made by the applicant, EUIPO invited the intervener to furnish proof of genuine use of the earlier mark that had been relied on in support of the opposition, in accordance with Article 47(2) of Regulation 2017/1001.
10 On 2 November 2020, as evidence of use of the earlier mark, the intervener submitted the following evidence before the Opposition Division:
– an affidavit by A, Director of the Category Alcoholic Beverages of the intervener (item No 1);
– copies of extracts from three promotional brochures of the Aldi Nord stores, dated 2014, 2018 and 2019 (item No 2);
– five photographs of the shelves of a store in Essen (Germany) (item No 3);
– 60 invoices dating from 2014 to 2019, relating to the supply of alcoholic beverages, including Regent Weinbrand, which were issued to various stores of the intervener (item No 4);
– an extract from the home page of the intervener’s website, representing a bottle of Weinbrand Regent (item No 5).
11 On 19 May 2021, the Opposition Division upheld the opposition.
12 On 24 June 2021, the applicant filed a notice of appeal with EUIPO, on the basis of Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
13 By the contested decision, the Board of Appeal dismissed the appeal. First of all, it found, in essence, that the evidence submitted by the intervener was sufficient to prove genuine use of the earlier mark in connection with brandy, which could be viewed as constituting a subcategory of ‘spirits (beverages)’ in Class 33.
14 Secondly, the Board of Appeal found that there was a likelihood of confusion. In particular, it found, first, that the existence of a likelihood of confusion had to be assessed in relation to the German general public, which displayed a ‘reasonable’ level of attention, secondly, that the goods at issue, namely wine and brandy were similar to a low degree, thirdly, that the earlier mark did not lack distinctiveness for the German public, but had an average degree of inherent distinctiveness, fourthly, that the most dominant and distinctive element in the mark applied for was the word element ‘régent’ and, fifthly, that the signs at issue were visually similar to an average degree, phonetically similar to at least an above-average degree and conceptually similar to at least an average degree.
Forms of order sought
15 The applicant claims that the Court should:
– annul the contested decision;
– allow the registration of the mark applied for;
– order EUIPO and the intervener to pay the costs.
16 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs incurred by EUIPO in the event of a summons to attend a hearing.
17 The intervener contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
18 In support of the action, the applicant relies on two pleas in law, alleging, first, infringement of Article 47(2) and (3) of Regulation 2017/1001 and, secondly, infringement of Article 8(1)(b) of that regulation.
The first plea, alleging infringement of Article 47(2) and (3) of Regulation 2017/1001
19 The applicant submits that the evidence produced by the intervener does not prove genuine use of the earlier mark. It submits, in particular, that the element ‘weinbrand’, which is used with the earlier mark, alters the distinctive character of that mark.
20 EUIPO and the intervener dispute the applicant’s arguments.
21 Article 47(2) of Regulation 2017/1001, read in conjunction with Article 47(3) of that regulation, provides that, if the applicant so requests, the proprietor of an earlier trade mark who has given notice of opposition must furnish proof that, during the five-year period preceding the date of filing of the EU trade mark application, the earlier trade mark has been put to genuine use in the Member State in which that mark is protected in connection with the goods or services in respect of which it is registered and which he or she cites as justification for his or her opposition, or that there are proper reasons for non-use, provided that the earlier trade mark has at that date been registered for not less than five years. In the absence of proof to this effect, the opposition is to be rejected.
22 It is apparent from Article 10(3) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), that the proof of use must establish the place, time, extent and nature of use of the earlier mark for the goods or services in respect of which it is registered and on which the opposition is based.
23 For the purposes of interpreting the concept of genuine use, account must be taken of the fact that the ratio legis of the provision requiring that the earlier mark must have been put to genuine use if it is to be capable of being used in opposition to an EU trade mark application is to restrict the number of conflicts between two marks, unless there is a good commercial justification for the lack of genuine use of the earlier mark deriving from an actual function of the mark on the market. However, the purpose of those provisions is not to assess commercial success or to review the economic strategy of an undertaking, nor are they intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks (judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 38).
24 There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43). Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 39; see also, to that effect and by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 37).
25 When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
26 As to the extent of the use to which the earlier trade mark has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 35, and of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 41).
27 Furthermore, an accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (see judgment of 13 February 2015, Husky CZ v OHIM – Husky of Tostock (HUSKY), T‑287/13, EU:T:2015:99, paragraph 66 and the case-law cited). Consequently, although the probative value of an item of evidence is limited to the extent that, individually, it does not show with certainty whether, and how, the goods concerned were placed on the market, and although that item of evidence is therefore not on its own decisive, it may nevertheless be taken into account in the overall assessment as to whether the use of the mark at issue is genuine. That is the case, for example, when that item of evidence is accompanied by other evidence (judgment of 6 March 2014, Anapurna v OHIM – Annapurna (ANNAPURNA), T‑71/13, not published, EU:T:2014:105, paragraph 45).
28 It is in the light of the abovementioned principles that the present plea must be examined.
29 It should be noted at the outset that, in the present case, as the Board of Appeal correctly found, the five-year period during which genuine use of the earlier mark had to be proved ran from 14 October 2014 to 13 October 2019 inclusive. Since the earlier trade mark is registered in Germany, the territory in which that use must be proved is that of that Member State.
The evidential value of the affidavit of the Director of the Category Alcoholic Beverages of the intervener
30 The applicant submits that, contrary to what was stated by the Board of Appeal, an affidavit by an employee of the intervener cannot, in itself, prove genuine use of the earlier mark. It argues that it does not, moreover, come from the director of the intervener’s legal or financial department and is not accompanied by any identity document.
31 As regards the content of that affidavit, the applicant puts forward the following claims:
– the figures per article are not broken down by brand or by geographical area;
– reference is made to ‘Weinbrand’ [brandy] and not to ‘Weinbrand Regent’. However, the intervener sells several references of brandy, with the result that the Board of Appeal made an error of assessment in stating that ‘“Weinbrand” … obviously refer[red ] to “Regent brandy”’;
– it is not possible to determine whether the expression ‘Min. quantity’, which is used in the affidavit, refers to the number of litres or bottles;
– the figures mentioned in the affidavit are not consistent with the quantity ordered which is apparent from the invoices submitted by the intervener;
– the statement that the brochures ‘[were] placed as handouts for take-away in more than round about 2 300 [of the intervener’s] retail stores in Germany’ is not sufficiently specific in relation to the goods sold and does not indicate how many stores sell the goods marketed under the earlier mark. Moreover, that statement is not substantiated.
32 EUIPO and the intervener dispute the applicant’s arguments.
33 As regards the evidential value of statements within the meaning of Article 97(1)(f) of Regulation 2017/1001, according to settled case-law, it is necessary, in order to assess the evidential value of a document, to verify the plausibility and the truthfulness of the information which it contains. Account must be taken of, inter alia, the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (see judgment of 7 September 2022, 6Minutes Media v EUIPO – ad pepper media International (ad pepper the e-advertising network), T‑521/21, not published, EU:T:2022:520, paragraph 99 and the case-law cited).
34 Likewise, it follows from the case-law that, first, evidential value may be attributed to a statement drawn up by one of the employees of the party concerned only if it is supported by other evidence and, secondly, the fact that such a statement comes from an employee of the party concerned cannot, on its own, deprive it of any value (see judgment of 7 September 2022, ad pepper the e-advertising network, T‑521/21, not published, EU:T:2022:520, paragraph 100 and the case-law cited).
35 Furthermore, the Court has already held, in essence, that when the Board of Appeal examines whether the information contained in an affidavit which comes from a manager of the party concerned is supported by other evidence, it must not confine itself to examining whether that evidence, on its own, without that affidavit, proves genuine use of the mark at issue. By proceeding in such a way, the Board of Appeal would deprive such an affidavit of any evidential value (see, to that effect, judgment of 5 October 2022, Aldi Einkauf v EUIPO – Cantina sociale Tollo (ALDIANO), T‑429/21, not published, EU:T:2022:601, paragraph 60).
36 In the present case, the Board of Appeal pointed out that the affidavit of the Director of the Category Alcoholic Beverages of the intervener was not the sole item of evidence which had been submitted, but was accompanied and supported by invoices, promotional brochures, images of the product on the intervener’s website and photographs of store shelves, to which that affidavit referred.
37 Furthermore, the Board of Appeal rejected the arguments put forward by the applicant, which are, in essence, identical to those put forward before the Court.
38 Thus, first, the Board of Appeal stated that the affidavit explicitly referred to the brand REGENT, the intervener’s sole brand for brandy, and specified Germany as the territory in which the intervener operated 2 300 Aldi Nord retail stores. Furthermore, in its view, the indications ‘weinbrand’ in the table obviously referred to Regent brandy. Secondly, the Board of Appeal found that the affidavit referred to promotional brochures showing the offer of Regent brandy in the course of the reference period and to invoices issued to various Aldi Nord branches in Germany. Thirdly, it stated that the expression ‘Min. quantity’ referred to bottles and that it was apparent from the invoices that the bottles were indicated with the reference ‘0.70 L’. Fourthly, it stated that the figures relating to the annual value of sales were consistent with the invoices submitted. Fifthly, it found that it could not be doubted that handouts containing the same offers had been distributed in Aldi Nord retail stores throughout Germany.
39 First, as regards the evidential value of that affidavit, it must be pointed out that, contrary to what the intervener claims, such affidavits must be supported, as is apparent from the case-law which has been referred to in paragraph 34 above.
40 In the present case, as the Board of Appeal correctly pointed out, the intervener did not merely submit the affidavit by its employee, but also submitted other evidence to which that affidavit referred (see paragraph 10 above).
41 Furthermore, the applicant’s arguments that that affidavit did not come from the legal director and was not accompanied by an identity document must be rejected. Since the applicant has not explained how those circumstances were relevant, they have no effect on the evidential value of the affidavit submitted by the intervener.
42 Secondly, as regards the applicant’s other claims (see paragraph 31 above), it must be pointed out that, in the present case, the applicant confines itself to repeating the same arguments it submitted before the Board of Appeal. However, since the Board of Appeal’s findings, as reproduced in paragraph 38 above, do not contain any error of assessment and the applicant has not put forward any arguments which make it possible to call those findings into question, the applicant’s claims must be rejected.
43 In particular, the claim that the intervener ‘distributes many other [brands of] brand[y]’ is in no way substantiated. In any event, even if the information contained in the affidavit regarding the volume of sales does not relate solely to brandy bearing the earlier mark, the information relating to the extent of use is borne out by, in particular, the suppliers’ invoices which were submitted as item No 4.
The other evidence submitted by the intervener
44 The applicant disputes the Board of Appeal’s assessments regarding the other evidence submitted by the intervener. First, it claims that the brochures containing the representation of a Weinbrand Regent bottle were not submitted in their entirety and that it has not been established that those brochures were distributed to potential customers, nor the extent of any distribution. It argues that those brochures could thus, at most, make it probable or credible that goods protected by the earlier mark were sold or, at least, offered for sale in the territory. Furthermore, according to the applicant, it is apparent from the brochure dated 2019 that the expression ‘weinbrand regent’ is used for the sale of liqueur-filled chocolate and not for goods in Class 33.
45 Secondly, the applicant claims that the photographs submitted as item No 3 were taken by an unspecified person on an unknown date and contain comments written in German, with the result that they are insufficient and irrelevant as evidence of genuine use of the earlier mark during the relevant period.
46 Thirdly, the applicant submits that the invoices issued to the intervener’s sales companies in Germany do not constitute evidence of sales to end customers in the relevant territory. According to the applicant, there is no evidence that those goods were delivered and sold by the intervener. It argues that the Board of Appeal therefore erred in finding that such use constituted public and outward use.
47 Fourthly, the applicant submits that the extract from the home page of the intervener’s website is undated and is therefore insufficient as evidence of use during the relevant period.
48 EUIPO and the intervener dispute the applicant’s arguments.
49 First, as regards the promotional brochures, it must be pointed out that the applicant does not dispute that bottles of brandy bearing the earlier mark appear in those brochures. Furthermore, given that the pages submitted by the intervener make it possible to identify the dates on which those brochures were published, the applicant does not explain how the fact that only a few pages of those brochures were submitted has an effect on their evidential value.
50 Likewise, the applicant cannot criticise the intervener for not having established that the promotional brochures were distributed to potential customers or for not having submitted particulars relating to the circulation of those brochures. Promotional brochures such as those submitted by the intervener do indeed show that bottles of brandy to which the earlier mark is affixed were offered for sale in the relevant territory in 2014 and 2018.
51 Furthermore, it has already been held that retail supermarket chains usually distribute their promotional magazines both in their supermarkets and in the letterboxes of potential customers in the vicinity of their supermarkets (judgment of 5 October 2022, ALDIANO, T‑429/21, not published, EU:T:2022:601, paragraph 71).
52 As regards the relevance of paragraph 73 of the judgment of 28 May 2020, Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line) (T‑615/18, not published, EU:T:2020:223), on which the applicant relies, it is sufficient to point out that, in the case which gave rise to that judgment, the advertisements which were published in various magazines were the only items of evidence that were assessed by the Court which supported the information contained in the affidavit as regards the extent of use of the mark concerned in connection with footwear in Class 25. However, in the present case, the intervener also submitted other evidence that was capable of bearing out the information contained in the affidavit, namely, in particular, the suppliers’ invoices issued to its sales companies.
53 As regards the claim that, in the 2019 brochure, the earlier mark was used for the sale of liqueur-filled chocolate, it is sufficient to point out that the Board of Appeal did not take that item of evidence into account. In paragraph 88 of the contested decision, it relied solely on the brochures published in 2014 and 2018 which had also been submitted as item No 2.
54 Secondly, as regards the invoices issued to the intervener’s sales companies, it is true that such invoices cannot, on their own, demonstrate that the goods ordered were actually distributed to end consumers (judgment of 5 October 2022, ALDIANO, T‑429/21, not published, EU:T:2022:601, paragraph 75). The fact, however, remains that the Board of Appeal did not rely solely on those invoices in order to find that the extent of genuine use of the earlier mark had been proved. In order to justify its finding, it relied, in addition to those invoices, in particular on the promotional brochures (item No 2) and the photographs of the shelves of a supermarket (item No 3) on which the description and product code corresponded to those on the suppliers’ invoices.
55 Furthermore, as regards the suppliers’ invoices, on the one hand, the Board of Appeal found that, in the supermarket retail business, it was a well-known fact that a private label product was commonly manufactured by a third-party manufacturer and sold under the brand name of a retailer in the context of a contractual relationship. In such a situation, the retailer specifies the product, how it is packaged and the label, and pays to have it produced and delivered to its stores. On the other hand, the Board of Appeal pointed out that it was apparent from those invoices that numerous cases of Regent brandy had been delivered.
56 All the information taken into account by the Board of Appeal is such as to bear out the content of the affidavit as regards the extent of use. All of that evidence shows that the use to which the earlier mark was put was not token, but had the aim of preserving or creating market shares.
57 Thirdly, as regards the undated evidence, such as the photographs of the shelves of a supermarket (item No 3) and the extract from the intervener’s website (item No 5), it must be borne in mind that that evidence, even if it does not fall within the relevant period, may be taken into account and assessed in conjunction with the rest of the evidence, because it can offer proof of real and genuine commercial use of the mark (see, to that effect, judgment of 8 April 2016, Frinsa del Noroeste v EUIPO – Frisa Frigorífico Rio Doce (FRISA), T‑638/14, not published, EU:T:2016:199, paragraph 38 and the case-law cited).
58 In that regard, the Board of Appeal was right in finding that the undated evidence was intended to show the range of goods in respect of which the earlier mark had been used and how that mark had been displayed on the packaging of those goods.
The issue of whether the distinctive character of the earlier mark has been altered
59 The applicant submits that the element ‘weinbrand’ used with the earlier mark in the form ‘Weinbrand Regent’ alters the distinctive character of that mark on account of its position at the beginning. Furthermore, it argues that that term, which consists of nine letters, is markedly more dominant and forms a unit with the element ‘regent’.
60 EUIPO and the intervener dispute the applicant’s arguments.
61 Under point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001, in conjunction with Article 47(2) and (3) of that regulation, proof of genuine use of an earlier trade mark which forms the basis of an opposition against an EU trade mark application also includes proof of use of the earlier mark in a form differing in elements which do not alter the distinctive character of that mark in the form in which it was registered (see judgment of 8 December 2005, Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH), T‑29/04, EU:T:2005:438, paragraph 30 and the case-law cited).
62 In the present case, it is apparent from the evidence submitted by the intervener that the bottles of brandy bore the following label:
63 In that regard, the Board of Appeal found, first, that the slight stylisation of the word ‘regent’ and the use of the colour red did not alter the distinctive character of the earlier word mark and, secondly, that the term ‘weinbrand’, meaning ‘brandy’ in German, lacked distinctiveness with regard to the goods in connection with which genuine use of the earlier mark had been shown and, consequently, could also not alter the distinctive character of that mark. The Board of Appeal came to the conclusion that the earlier mark had been used in a form which did not alter its distinctive character.
64 It must be borne in mind that a finding that the distinctive character of the registered trade mark has been altered requires an assessment of the distinctive and dominant character of the elements which have been added, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the various elements within the arrangement of that mark (see judgment of 13 September 2016, hyphen v EUIPO – Skylotec (Representation of a polygon), T‑146/15, EU:T:2016:469, paragraph 28 and the case-law cited).
65 Furthermore, the Court has stated that, in order for point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 to apply, the additions to the registered mark must not alter the distinctive character of the mark in the form in which it was registered, in particular because of their ancillary position in the sign or their weak distinctive character (see judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 31 and the case-law cited).
66 In the present case, the element ‘weinbrand’, which precedes the element ‘regent’ on the bottle labels and means brandy in German, is manifestly descriptive with regard to the goods at issue, with the result that it is devoid of any distinctive character, as the Board of Appeal correctly found. The position and size of that element do not have any bearing on its distinctive character. Consequently, the applicant’s argument is based on an incorrect premiss.
67 Since the evidence submitted by the intervener demonstrates to the requisite legal standard the nature and extent of use of the earlier mark during the relevant period and in the relevant territory, the Board of Appeal was right in finding that genuine use of that mark had been proved. The intervener’s alcoholic beverages director, in her affidavit (item No 1), refers to the minimum sales quantities and corresponding amounts in respect of the years 2017, 2018 and 2019. The information contained in that affidavit is borne out by the other items of evidence which are also referred to in that affidavit. First, items Nos 2, 3 and 5, which correspond to extracts from promotional brochures, photographs taken in a store and an extract from the intervener’s website, show that the earlier mark, preceded by the element ‘weinbrand’, appears on the labels affixed to the bottles. Since the German term ‘weinbrand’ is descriptive with regard to the goods at issue, that addition does not alter the distinctive character of the earlier mark. Furthermore, that evidence shows, inter alia, that the mark has been used publicly and outwardly. Secondly, it is apparent from item No 4 that significant quantities of brandy were delivered to branches of the intervener in Germany during the relevant period.
68 It follows from all of the foregoing that it must be held that the Board of Appeal did not infringe Article 47(2) and (3) of Regulation 2017/1001 in finding that the intervener had proved genuine use of the earlier mark in connection with brandy, with the result that the present plea must be rejected.
The second plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
69 In the context of its second plea, the applicant claims that the Board of Appeal erred in finding that there was a likelihood of confusion. In particular, it disputes the merits of the Board of Appeal’s assessments relating to the level of attention of the relevant public, the comparison of the signs and the assessment of the likelihood of confusion.
70 EUIPO and the intervener dispute the applicant’s arguments.
71 Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must 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. Furthermore, under Article 8(2)(a)(ii) of that regulation, ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
72 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. 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).
73 For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, 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).
74 It is in the light of the abovementioned principles that the present plea must be examined.
The relevant public and its level of attention
75 The applicant does not dispute the Board of Appeal’s finding that the relevant public is the German general public. By contrast, it considers that the Board of Appeal made an error of assessment in finding that the level of attention of that public was average. It submits that it is necessary to take into account the reasonable level of attention of the consumer in relation to the goods at issue.
76 EUIPO and the intervener dispute those arguments.
77 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, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
78 In the present case, the Board of Appeal found that both wine and brandy were everyday consumer goods, which were intended for the German general public displaying a ‘reasonable’ level of attention, while accepting that those beverages could also be aimed at a public which displayed an enhanced level of attention.
79 In that regard, it must be pointed out, as stated by the Board of Appeal, that, where the relevant public consists of two categories of consumers, each of which has a different level of attention, the public with the lower level of attention must be taken into consideration (see judgment of 30 January 2019, Bekat v EUIPO – Borbet (ARBET), T‑79/18, not published, EU:T:2019:39, paragraph 23 and the case-law cited).
80 It follows that, where the relevant public consists both of a public displaying an average level of attention and of another public the level of attention of which is enhanced, it is necessary to take into account the former, as the Board of Appeal did in the present case. Furthermore, it must be held that the use, by the Board of Appeal, of the term ‘reasonable’ means ‘average’ in the present case, since that term is placed in opposition to an enhanced level of attention.
81 Consequently, the Board of Appeal’s assessments relating to the definition of the relevant public and its level of attention do not contain any error of assessment.
The comparison of the goods
82 The applicant submits that the Board of Appeal was right in finding that the goods at issue, namely, on the one hand, wine and, on the other hand, brandy, were similar to a low degree.
83 The intervener submits that, contrary to the Board of Appeal’s findings, wine and brandy are similar to a normal degree, owing to their vinous nature, their distribution channels and their identical purpose. It contends that the difference in alcohol content between those two products cannot lead to the assumption that there is only a low degree of similarity between those goods.
84 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 (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).
85 In the present case, the Board of Appeal found that wine and brandy were similar to a low degree. In addition to the fact that brandy is a spirit drink obtained from the distillation of wine, it also pointed out that the two products shared identical distribution channels, that even specialist wine shops could offer their customers brandy and that both beverages could be consumed on the same occasion: wine during the meal and brandy as a digestif.
86 Those findings on the part of the Board of Appeal do not contain any error of assessment. In response to the intervener’s argument, it must be pointed out that the Board of Appeal found that there was a low degree of similarity in the present case not only on account of the difference in the degree of alcohol in those beverages, but also on account of their different production methods: distillation with regard to brandy and fermentation with regard to wine.
87 It follows that the Board of Appeal was right in finding that the goods at issue were similar to a low degree.
The comparison of the signs
88 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).
89 In the present case, it is necessary to compare, on the one hand, the earlier word mark REGENT and, on the other hand, the figurative mark applied for, as reproduced in paragraph 3 above.
– The dominant and distinctive elements of the mark applied for
90 The applicant submits that the element ‘regent’ is descriptive with regard to wines and spirits in Class 33. It argues that that term refers to a variety of grape which is used in German regions and is known to the relevant German public. It submits that grapes are the main ingredient in wine and brandy. It also contends that Regent is the twelfth most cultivated variety in Germany and the most cultivated hybrid grape variety, and that the term ‘regent’ immediately informs consumers that the goods referred to are wines and brandies made from grapes of the Regent variety.
91 Furthermore, the applicant states that the document on which the Board of Appeal relied in order to maintain that ‘regent [was] not immediately identifiable to most consumers’ is dated 2015 and that the quotation in question contains the information that ‘numerous growers are well aware of its many positive attributes’. Thus, according to the applicant, the term ‘regent’ is now completely identifiable by German consumers as a grape variety. It submits that part of the relevant public is aware of that term and that it is reasonable to envisage that the rest of that public will be aware of it in the future. In that regard, the applicant refers to the case-law relating to the application of Article 7(1)(c) of Regulation 2017/1001 in order to state that a sign is descriptive if at least one of its possible meanings designates a characteristic of the goods or services concerned.
92 Furthermore, the applicant claims that the word element ‘bistro’, which contains three strokes above the letter ‘o’, is a fanciful word which evokes the term ‘bistro’ and that that element, placed at the beginning of the mark applied for, is distinctive with regard to wines. In addition, it submits that the figurative elements of that mark are also not negligible.
93 EUIPO and the intervener dispute the applicant’s claims.
94 For the purposes of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods and 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, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods or services for which the mark has been registered (judgments of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35, and of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 51).
95 A term with a clear meaning is considered to be descriptive if there is a sufficiently direct and specific relationship between that term and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or of one of their characteristics (see judgment of 24 February 2016, Tayto Group v OHIM – MIP Metro (REAL HAND COOKED), T‑816/14, not published, EU:T:2016:93, paragraph 63 and the case-law cited).
96 Where some elements of a trade mark are descriptive of the goods and services in respect of which that mark is registered or of the goods and services covered by the application for registration, those elements are recognised as having only a weak, or even very weak, distinctive character. As a result, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on consumers and to be remembered by them (see judgment of 22 June 2010, CM Capital Markets v OHIM – Carbon Capital Markets (CARBON CAPITAL MARKETS Emissions Compliance Solutions & Carbon Finance), T‑490/08, EU:T:2010:250, paragraph 39 and the case-law cited).
97 With regard to the assessment of the dominant character of one or more given components of a composite trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of the other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).
98 In the present case, the Board of Appeal found that the most dominant and distinctive element in the mark applied for was ‘régent’, which would be perceived in the same way as in the earlier mark. In particular, as regards that element, it took the view that the primary meaning which was attributed to it was ‘reigning prince, monarch, crowned ruler’ and not the hybrid grape variety cultivated in German wine-producing regions. Furthermore, the Board of Appeal found, in essence, that the German public would not perceive the element ‘régent’ as referring to a period in French history and would not discern any contradictory meaning in the expression ‘bistro régent’. In addition, it is apparent from the evidence provided by the applicant that ‘Regent is not immediately identifiable to most consumers’.
99 As regards the element ‘bistro’, the Board of Appeal found that it designated a small, usually simple restaurant and that it was not particularly distinctive with regard to wine, which was generally served with food. Furthermore, the Board of Appeal rejected the applicant’s argument that that term would be perceived as fanciful due to the presence of three strokes above the letter ‘o’. According to the Board of Appeal, those three strokes, as well as two strokes resembling double quotation marks and the symbol ‘®’, would be perceived as purely decorative elements.
100 It must be held, as the Board of Appeal found, that the element ‘régent’ in the mark applied for will be perceived as a reference to the term ‘regent’, the primary meaning of which in German is ‘reigning prince, monarch, crowned ruler’. That term is distinctive with regard to the goods covered by the mark applied for, namely wines.
101 As regards the question of whether the German general public might perceive that element as a reference to a grape variety, the applicant has not proved that to the requisite legal standard. It is apparent in particular from the evidence on which the applicant relies and which the Board of Appeal did not, in the applicant's submission, fully take into account, that, ‘although Regent is not immediately identifiable to most consumers, numerous growers are well aware of its many positive attributes’. Apart from the fact that that extract shows that most consumers are not aware of the Regent grape variety, it is stated in that extract that it is wine growers, that is to say, professionals, who are aware of it. However, as is apparent from paragraph 81 above, it is the perception of the general public which must be taken into account for the purposes of assessing whether there is a likelihood of confusion.
102 In that regard, the applicant’s argument that the information on which the Board of Appeal relied dated from 2015 and was more than six years old is irrelevant, since the document at issue was submitted by the applicant. It was specifically for the applicant to adduce the evidence which, in its view, would be the most appropriate for the purpose of substantiating its arguments.
103 As regards the applicant’s reliance on the case-law relating to the application of Article 7(1)(c) of Regulation 2017/1001, that case-law cannot be applied in the present case. The fact that an element constituting a mark might, in the future, be perceived as being descriptive of the goods covered by that mark, is not sufficient for it to be held, in opposition proceedings pursuant to Article 8(1)(b) of that regulation, that it is weakly distinctive at the time when the likelihood of confusion is assessed.
104 As regards the element ‘bistro’, notwithstanding the presence of three small strokes over the letter ‘o’, which will be perceived as a mere decoration, that element will easily be understood by the German general public as a reference to a ‘small, usually simpler restaurant’. As the Board of Appeal correctly found, since wines are generally served with food, the term ‘bistro’ is weakly distinctive with regard to wines.
105 As regards the figurative elements in the mark applied for, it must be borne in mind that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by citing the name of the mark than by describing the figurative element of that mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37). Moreover, in the present case, the figurative elements of the mark applied for are obviously ancillary on account of their decorative nature. Consequently, the Board of Appeal did not make any error of assessment in finding that those figurative elements were not particularly distinctive.
106 As regards the determination of whether one of the two word elements in the mark applied for is dominant, it must be pointed out that the word element ‘régent’ is, by virtue of its size, larger than the word element ‘bistro’, with the result that the Board of Appeal could rightly find that the former was dominant.
107 In view of the foregoing considerations, the most distinctive and dominant element in the mark applied for is the word element ‘régent’.
– The visual, phonetic and conceptual comparison of the signs
108 First, as regards the visual comparison, the applicant submits that the signs at issue are dissimilar. According to the applicant, the mark applied for is considerably longer and its structure, punctuation and architecture are very different from those of the earlier mark.
109 EUIPO and the intervener dispute the substance of the applicant’s arguments.
110 In the present case, the Board of Appeal found that the signs at issue were visually similar to an average degree. In particular, it observed that the element ‘régent’ in the mark applied for differed from the earlier mark only in the acute accent on the letter ‘e’, that the element ‘bistro’, even though it was placed at the beginning of the sign, was smaller in size and weakly distinctive and that the visual differences created by the presence of that latter element and the figurative aspects of the mark applied for were insufficient to counterbalance the visual similarity created by the coincidence in the elements ‘regent’ and ‘régent’.
111 It must be pointed out that the most distinctive and dominant element in the mark applied for, namely ‘régent’, differs from the sole element in the earlier mark only in the presence of an acute accent. It is true that there are other differences between the signs at issue, namely the presence, in the mark applied for, of the word element ‘bistro’ and the figurative elements, and the use of a stylised font. However, it must be borne in mind that the element ‘bistro’ and the figurative elements are weakly distinctive (see paragraphs 104 and 105 above). In those circumstances, the Board of Appeal was right in finding that the degree of visual similarity was average in the present case.
112 Secondly, as regards the phonetic comparison, the applicant contends that the Board of Appeal made an error of assessment in finding that the element ‘bistro’ would not be pronounced in the mark applied for. It submits that the public will recognise the acute accent in the term ‘régent’ and will pronounce that element the French way. It argues that, consequently, the pronunciation of the elements ‘regent’ and ‘régent’ is very different.
113 EUIPO and the intervener dispute the substance of the applicant’s arguments.
114 In the present case, the Board of Appeal found that there was at least an above-average degree of similarity on account of the presence of the element in common ‘regent’, the acute accent of which in the mark applied for would not have any effect from a phonetic standpoint, since the German language did not include such accents. As regards the element ‘bistro’, the Board of Appeal found that it might not be pronounced and that, in any event, its impact was not very high, on account of its very limited distinctive character.
115 It must be pointed out that the most distinctive and dominant element in the mark applied for, namely ‘régent’, differs from the earlier mark only in the presence of the acute accent on the first letter ‘e’. Contrary to what the applicant claims, that accent will not alter the way in which that element will be pronounced by the relevant public, since such an accent does not exist in German. In any event, even if it were established that that accent would be perceived by the German public, it is unlikely that the element ‘régent’ will be pronounced ‘the French way’, as the applicant claims.
116 As regards the element ‘bistro’ in the mark applied for, it is true that the Board of Appeal pointed out that it might not be pronounced on account of the public’s tendency to omit words which were not particularly distinctive. However, the Board of Appeal also acknowledged that that element might be pronounced, but that its phonetic impact was not very high.
117 As is apparent from paragraph 104 above, the element ‘bistro’ is weakly distinctive in the present case, with the result that its impact on the phonetic comparison will be limited, as the Board of Appeal correctly found.
118 In those circumstances, even if the element ‘bistro’ in the mark applied for were pronounced, the degree of phonetic similarity between the signs at issue would be above average, with the result that the Board of Appeal’s finding does not, in any event, contain any error of assessment.
119 Thirdly, as regards the conceptual comparison, the applicant submits that the mark applied for has a substantially different meaning from that of the earlier mark. It contends that the conjunction of the ideas of ‘bistro’ and ‘régent’, which is original, is apparently contradictory and refers to a restaurant which is both popular and high-end, with a clear emphasis on French liberal culture and history. It argues that the German consumer will perceive it as a reference to a very typical and authentic French restaurant. As for the word ‘regent’ taken in isolation, it submits that it describes a grape variety.
120 EUIPO and the intervener dispute the substance of the applicant’s arguments.
121 In the present case, the Board of Appeal found that the signs were similar to at least an average degree on account of the coincidence in the element ‘régent’, which was understood as referring, in both signs, to a reigning prince, monarch, crowned ruler. It pointed out that the element ‘bistro’ was weakly distinctive and could not therefore have decisive weight. The Board of Appeal also rejected the applicant’s argument that the mark applied for would be understood as referring to a restaurant which was both popular and high-end, with a clear emphasis on French liberal culture and history. In that regard, it found that it was unlikely that the German general public would have such an in-depth knowledge of French culture and history that it would perceive the contradiction between those terms, as had been suggested by the applicant.
122 As has already been stated, the element ‘régent’ in the mark applied for will be understood as a reference to a monarch or a crowned ruler and not to a variety of grape. The same considerations apply to the earlier mark, which differs from that element only in the absence of the acute accent on the first letter ‘e’.
123 As regards the element ‘bistro’, which is present in the mark applied for, it has already been pointed out that it will be perceived as a reference to a small restaurant. However, in the light of the weak distinctive character of that element with regard to wines (see paragraph 104 above), its impact on the conceptual comparison will be limited.
124 In those circumstances, the Board of Appeal was right in finding that the signs at issue were conceptually similar to at least an average degree.
The distinctive character of the earlier mark
125 According to the applicant, the earlier trade mark has only a weak distinctive character and the term ‘regent’ immediately informs consumers that the goods referred to are made from grapes of the Regent variety. In support of its arguments, the applicant refers to certain decisions of EUIPO and of the national courts refusing registration of signs consisting of names of grape varieties.
126 Furthermore, the applicant contends that the Board of Appeal erred in stating that the specific grape variety was not generally indicated on a brandy bottle. It contends that the evidence which it has submitted shows that the term ‘regent’ is used on the labels of the goods in Class 33 and that, in any event, the labelling is not a criterion to be used for the purpose of assessing the distinctiveness of the signs at issue. It argues that the Board of Appeal also made an error of assessment, in paragraph 118 of the contested decision, in maintaining that ‘brandy’ was an alcoholic beverage which could be distilled from wine and was not produced by the fermentation of grapes like wine.
127 EUIPO and the intervener dispute the applicant’s arguments.
128 In the present case, the Board of Appeal found that the earlier mark had a normal degree of inherent distinctiveness, taking the view that the average German consumer would not understand the term ‘regent’ as designating a grape variety. In particular, it pointed out that the specific grape variety was not generally indicated on a brandy bottle and that there was no evidence in the file showing that brandy was obtained by distilling wine which was itself produced from Regent grapes.
129 Those findings on the part of the Board of Appeal do not contain any error of assessment. As is apparent from paragraphs 100 and 101 above, it has not been established in the present case that the German general public will perceive the term ‘regent’ as a reference to a grape variety, but that it will perceive it as a reference to a monarch or a crowned ruler. Consequently, the distinctiveness of that term with regard to brandy, the product in connection with which genuine use of the earlier mark has been proved, is normal.
130 Moreover, even if, as the applicant submits, the term ‘regent’ appears on the labels of the bottles of wine and may thus be perceived as a reference to the grape variety used for the production of that wine, meaning that it is descriptive with regard to that product, that does not, however, mean that that element is descriptive or weakly distinctive with regard to brandy. As the Board of Appeal rightly found, and the applicant has not shown that that finding is incorrect, consumers of brandy, by contrast with those of wine, are not in the habit of being interested in the grape variety which is used for the production of that alcoholic beverage.
131 As regards the decisions concerning the registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO take under Regulation 2017/1001, those decisions are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of a previous decision-making practice (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
132 In any event, the decisions to which the applicant refers do not relate to the element ‘regent’. Those decisions concern applications for registration of signs containing the names of various grape varieties which EUIPO rejected on account of their descriptiveness. However, in the present case, it is sufficient to point out that it has not been established that the German public will perceive the term ‘regent’ as a reference to a grape variety.
133 The Board of Appeal was therefore right in finding that the inherent distinctiveness of the earlier mark was normal.
The likelihood of confusion
134 The applicant submits that a likelihood of confusion cannot exist in the present case on account of the lack of similarity between the signs, the low degree of similarity between the goods, the low degree of distinctiveness of the earlier mark and the high level of attention of the relevant public. It also submits that the French courts and the Institut national de la propriété industrielle (National Institute for Industrial Property (INPI), France) concluded that there was no likelihood of confusion in cases between marks containing the element ‘bistro regent’ and those composed of the term ‘regent’.
135 EUIPO and the intervener dispute the applicant’s arguments.
136 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, 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 74).
137 In the present case, the Board of Appeal found, in the light of the low degree of similarity between the goods and, as regards the signs at issue, the average degree of visual similarity, the above-average degree of phonetic similarity and the at least average degree of conceptual similarity, that the differences between the marks were not sufficient to rule out the existence of a likelihood of confusion. It added that there was a likelihood of confusion in the present case even if the distinctive character of the earlier mark were weak.
138 It must be stated that the applicant’s view that there is no likelihood of confusion is based on, inter alia, the arguments that the signs at issue are not similar, the degree of distinctiveness of the earlier mark is low and the level of attention of the relevant public is high. However, those premisses are incorrect in the present case. As is apparent from the above considerations, the Board of Appeal did not make any error of assessment in finding that the level of attention of the relevant public to be taken into account was average (see paragraph 81 above), that the signs at issue were visually similar to an average degree, phonetically similar to an above-average degree and conceptually similar to at least an average degree (see paragraphs 111, 118 and 124 above) and that the inherent distinctiveness of the earlier mark was normal (see paragraph 133 above). Likewise, the goods at issue are similar to a low degree in the present case, a finding which is not disputed by the applicant.
139 In those circumstances, the Board of Appeal was right in finding that there was a likelihood of confusion in the present case.
140 As regards the applicant’s argument that the INPI and the French courts concluded that there was no likelihood of confusion as regards, on the one hand, the word sign BISTRO REGENT and a figurative sign consisting solely of the element ‘regent’ and, on the other hand, a figurative sign similar to the mark applied for and the word sign LE REGENT, it is sufficient to state that their decisions relate to the perception of the marks at issue in France. However, the relevant public in the present case is the German general public, the perception of which is not necessarily identical to that of the French public. Consequently, as the Board of Appeal found, those decisions cannot be relevant in the present case.
141 Moreover, it must be borne in mind that 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 judgment of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 37 and the case-law cited).
142 It follows from all of the foregoing that the second plea must be rejected.
143 Since none of the pleas put forward by the applicant is well founded, the action must be dismissed in its entirety without it being necessary to consider whether the applicant’s second head of claim, requesting that the Court allow the registration of the mark applied for, is admissible.
Costs
144 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.
145 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the intervener.
146 As regards the form of order sought by EUIPO, EUIPO has applied for the applicant to be ordered to pay the costs only if the parties are summoned to attend a hearing. Consequently, since the Court has decided to rule on the action without an oral part of the procedure, EUIPO must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Vanhove to bear its own costs and to pay those incurred by Aldi Einkauf SE & Co. OHG;
3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Costeira | Kancheva | Zilgalvis |
Delivered in open court in Luxembourg on 10 May 2023.
Acting Registrar | | President |