JUDGMENT OF THE GENERAL COURT (Third Chamber)
20 February 2018 (*)
(EU trade mark — Opposition proceedings — Application for EU word mark CK1 — Earlier EU figurative mark CK — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
In Case T‑45/17,
Kwang Yang Motor Co., Ltd, established in Kaohsiung (Taiwan), represented by A. González Hähnlein and A. Kleinheyer, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Crespo Carrillo and D. Walicka, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Udo Schmidt, residing in Reken (Germany), represented by G. Rother and J. Vogtmeier, lawyers,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 2 November 2016 (Case R 2193/2015-2), relating to opposition proceedings between Mr Schmidt and Kwang Yang Motor,
THE GENERAL COURT (Third Chamber),
composed of S. Frimodt Nielsen, President, I.S. Forrester and E. Perillo (Rapporteur), Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 20 January 2017,
having regard to the response of EUIPO lodged at the Court Registry on 21 April 2017,
having regard to the response of the intervener lodged at the Court Registry on 10 April 2017,
further to the hearing on 14 November 2017,
gives the following
Judgment
Background to the dispute
1 On 20 January 2014, the applicant, Kwang Yang Motor Co., Ltd, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
2 Registration as a mark was sought for the word sign CK1.
3 The goods in respect of which registration was sought are, following the restriction made in the course of the proceedings before EUIPO, in Class 12 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: ‘Motorcycles, electric motorcycles’.
4 The EU trade mark application was published on 7 March 2014.
5 On 22 April 2014, the intervener, Udo Schmidt, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6 The opposition was based on the following earlier EU figurative mark:
7 The goods and services covered by the earlier trade mark were in Classes 12, 40 and 42 and corresponded, for each of those classes, to the following description:
– Class 12: ‘Hearses, automobiles’;
– Class 40: ‘Conversion of motor vehicles into hearses’;
– Class 42: ‘Conducting engineering studies, technical consultancy; technical appraisals, technical planning, technical project studies, engineering design services, technical project management’.
8 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
9 On 18 September 2015, the Opposition Division upheld the opposition.
10 On 3 November 2015, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the Opposition Division’s decision.
11 By decision of 2 November 2016 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal. First of all, it considered that the ‘motorcycles [and] electric motorcycles’ covered by the trade mark application were similar to the ‘automobiles’ covered by the earlier trade mark in so far as the former coincided with the latter in terms of both their nature and intended purpose and were aimed at the same public, which consisted of the general public and a professional public. Next, it held that the signs in question were visually and phonetically similar, on the ground, essentially, that the mark applied for included the earlier trade mark, which consisted of the two letters ‘c’ and ‘k’, in its entirety, and notwithstanding the differentiating elements, namely the stylisation of the earlier trade mark, which would be perceived as purely decorative visually, and the presence of the number ‘1’ in the mark applied for, which was not sufficient to overcome the overall impression of phonetic similarity between the two marks. Holding in addition that the lack of conceptual meaning of both the earlier trade mark and the mark applied for did not permit a conceptual comparison of the signs in question to be taken into account for the purposes of assessing the degree of similarity between them, the Board of Appeal concluded that there was an ‘overall similarity’ between the signs and, for that reason, there was a likelihood of confusion on the part of the relevant public. In that regard, it held that that was so notwithstanding the high level of attention of that public, given that that public, while not directly confusing the two signs, was likely to believe that they come from the same undertaking or from economically linked undertakings.
Forms of order sought
12 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs.
13 EUIPO and the intervener contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
14 The applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. First of all, it submits that the ‘motorcycles’ covered by the trade mark application are not similar — or that they are, at best, only ‘remotely’ similar — to the ‘automobiles’ protected by the earlier trade mark, inasmuch as they differ from each other in terms of ‘their nature, their [intended] purpose and their method of use’ and in terms of their distribution channels. It adds that those goods are neither complementary nor ‘interchangeable’.
15 Next, the applicant considers that the signs in question are ‘only remotely’ similar in so far as, being very short signs, their differences ‘cannot be neglected’ and are capable of conveying, in essence, different overall impressions to the relevant public.
16 In those circumstances, according to the applicant, such a public, taking into account its high level of attention, cannot confuse the two marks at issue, contrary to the — in the applicant’s view — incorrect findings of the Board of Appeal.
17 EUIPO and the intervener dispute the applicant’s arguments.
18 It should be borne in mind that, pursuant to Article 8(1)(b) of Regulation No 207/2009 and 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, an 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.
19 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. In addition, 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). Lastly, 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).
20 It is in the light of that case-law that it is necessary to verify the accuracy of the Board of Appeal’s conclusion, in paragraph 37 of the contested decision, that, in view of the similarity of the signs in question and the similarity between the goods covered by the trade mark application, namely ‘motorcycles’ and ‘electric motorcycles’, and the ‘automobiles’ in respect of which the earlier trade mark was registered, there is a likelihood of confusion on the part of the relevant public, notwithstanding its high level of attention.
The relevant public
21 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. In that regard, it should 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).
22 In the present case, the Board of Appeal correctly considered, first of all, that, as the earlier right was an EU trade mark, it was necessary to take into account the perception of the marks at issue by consumers of the goods in question throughout the territory of the European Union (see, to that effect, judgment of 23 March 2017, Vignerons de la Méditerranée v EUIPO — Bodegas Grupo Yllera (LE VAL FRANCE), T‑216/16, not published, EU:T:2017:201, paragraph 15 and the case-law cited). In that regard, the Board of Appeal was also fully entitled to consider, in paragraph 20 of the contested decision, that the goods in question, namely motorcycles and automobiles, were aimed at both the general public and a professional public and to consider that, in view of the value and nature of such goods, the level of attention of that public was high (see, to that effect, judgment of 12 November 2014, Volvo Trademark v OHIM — Hebei Aulion Heavy Industries (LOVOL), T‑525/11, not published, EU:T:2014:943, paragraph 19). Moreover, those definitions of the relevant public and its level of attention are not, in themselves, contested by the applicant, which, in that regard, considers only that the high level of attention of that public makes it ‘unlikely’ that that public will confuse the marks or the goods at issue.
Comparison of the goods
23 As a preliminary point, it should be noted that EUIPO, while not expressly stating that the arguments alleging that there is no similarity between the goods in question are inadmissible as a result of having been raised for the first time before the General Court, remarks that the applicant did not, during the proceedings before the Board of Appeal, put forward any argument calling in question the Opposition Division’s finding of similarity between the motorcycles covered by the trade mark application and the automobiles in respect of which the earlier trade mark was registered. When questioned on that point at the hearing, the applicant disputed EUIPO’s position and maintained that its arguments were admissible.
24 That being so, if the Court is hearing an action, as in the present case, contesting the Board of Appeal’s assessment of the likelihood of confusion between two signs, it has jurisdiction to examine the Board of Appeal’s assessment of the similarity of the goods in question, even where no specific challenge has been made by the applicant on that subject, since the Court cannot be bound by an incorrect assessment of the facts by the Board of Appeal (see judgment of 7 October 2014, Tifosi Optics v OHIM — Tom Tailor (T), T‑531/12, not published, EU:T:2014:855, paragraph 28 and the case-law cited). Moreover, the applicant did indeed contest, as such, the lack of similarity between the goods in question before the Board of Appeal, so that, although it did not set out its plea during the proceedings before EUIPO, the arguments raised for the first time in support of that plea before the Court cannot alter the framework of the dispute and thus be regarded as inadmissible.
25 That having been said, 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 of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
26 In the present case, the Board of Appeal correctly considered, in paragraph 24 of the contested decision, stating, moreover, that it was endorsing the Opposition Division’s reasoning in that regard, that the motorcycles covered by the trade mark application and the automobiles covered by the earlier trade mark were similar, in terms of both their nature and intended purpose and also in so far as they are aimed at the same public.
27 Although the Board of Appeal did not state the degree of similarity between the goods in question in the contested decision, EUIPO, when questioned on that point at the hearing, specified that, in view of the fact that the goods coincided in terms of both their nature and intended purpose, it had to be accepted that there was at least an average degree of similarity between those goods.
28 That having been said, it should first of all be noted that motorcycles and automobiles both belong to the same class. While it is true that the Nice Classification is purely administrative, it is still necessary to refer to it in order to determine, where necessary, the range or the meaning of the goods in respect of which a mark has been registered (judgment of 10 September 2014, DTM Ricambi v OHIM — STAR (STAR), T‑199/13, not published, EU:T:2014:761, paragraph 35). Next, both are motor vehicles, steered by a driver and mounted on tyres, operating according to the same principles of mechanics and ignition, so that both must be regarded, as vehicles intended for the carriage of persons, as being of a similar nature. They are also comparable in terms of their intended purpose, as both are used in order to transport persons, both in urban and rural settings, the presence of a motor enabling persons in both cases to undertake long journeys. In that regard, the fact, recalled by the applicant at the hearing, that the Court found that motor vehicles were different from bicycles in its judgment of 16 May 2007, Trek Bicycle v OHIM — Audi (ALLTREK) (T‑158/05, not published, EU:T:2007:143), has, in any event, no effect on the assessment of the similarity between automobiles and motorcycles, which — unlike the bicycles at issue in that case — are both motor vehicles.
29 In addition, the applicant argues that some automobiles may also be used for the carriage of heavy or bulky goods, which is not the case for motorcycles. However, such an argument is irrelevant because, first, the applicant’s motorcycles are intended for the carriage of passengers, and, second, as EUIPO aptly contends, motorcycles designed for the carriage of goods or of several persons are commercially available.
30 Indeed, in that regard, the fact — as noted by the applicant — that motorcycles can, as a general rule, transport only the driver, whereas automobiles, which have a closed passenger cabin, can transport several persons, means only that motorcycles and automobiles are not identical: it does not prevent there being a similarity between them as vehicles intended for the carriage of persons. That similarity is to be assessed not only having regard to the nature of the goods in question but also, as has been stated in paragraph 25 above, taking into account their intended purpose, their method of use, whether they are complementary, and their distribution channels.
31 Moreover, even if, as is asserted by the applicant, the goods in question are not actually complementary inasmuch as one is not indispensable or important for the use of the other, they may, contrary to the applicant’s assertions, be marketed via the same distribution channels, via approved retailers or dealers, and offered in the same sales outlets or on the same websites, or be produced by the same manufacturers, such as — as is indeed noted by the applicant — BMW, but also other manufacturers such as Honda or Suzuki, as mentioned by EUIPO and the intervener.
32 Lastly, the fact that the use of automobiles requires, as a general rule, a driving licence which differs from the licence needed to drive a motorcycle does not affect the comparison of such goods as passenger vehicles. On the contrary, the fact that, in order to drive one or other of those vehicles, it is in any event necessary to be the holder of a licence issued by a public authority proves that, despite their differences, those two means of transport are subject to the same road safety requirements and require knowledge of the same rules of the highway code relating to the use of public roads.
33 Having regard to the foregoing, it must be concluded that there is, at the very least, an average degree of similarity between the goods in question, as land vehicles intended for the carriage of passengers which coincide, as emphasised by the Board of Appeal, in terms of both their nature and intended purpose and are aimed at the same public. Consequently, the complaint that there is no similarity between the goods in question — or that they are, at most, only ‘remotely’ similar — must be rejected.
Comparison of the signs
34 Regarding the comparison of the signs in question, it should be borne in mind that two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see judgment of 23 March 2017, LE VAL FRANCE, T‑216/16, not published, EU:T:2017:201, paragraph 23 and the case-law cited).
35 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).
36 In a case involving a composite trade mark, 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 of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited).
37 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 of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, 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 of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
38 As regards 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 other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite trade mark (judgments of 23 October 2002, Matratzen Concord v OHIM — Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35, and of 23 March 2017, LE VAL FRANCE, T‑216/16, not published, EU:T:2017:201, paragraph 27).
39 It is in the light of those principles that the signs at issue must be examined.
40 In the present case, the earlier trade mark, as was correctly noted by the Board of Appeal in paragraph 29 of the contested decision, is a figurative mark consisting of two stylised letters in black and white, namely a large letter ‘c’ and a smaller letter ‘k’ occupying a central position but placed to the right of the letter ‘c’. The mark applied for is a simple word mark consisting of the pair of capital letters ‘CK’ directly followed by the number ‘1’.
41 That having been clarified, it should be borne in mind, as regards the visual comparison, that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, given that those two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM — Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited; judgment of 5 May 2017, Globo Media v EUIPO — Globo Comunicação e Participações (GLOBO MEDIA), T‑262/16, not published, EU:T:2017:315, paragraph 37).
42 In the present case, in order to challenge the assessment of the Board of Appeal, which considered, in paragraph 34 of the contested decision, that the signs at issue were similar ‘overall’ in view of their visual and phonetic similarity (the lack of conceptual meaning of the signs preventing a conceptual comparison), the applicant has confined itself to stating, without putting forward any specific argument whatsoever to support its line of reasoning, that, being short signs, their differences were such as to convey different overall impressions to the relevant public, so that such signs could be only ‘remotely similar’. However, merely referring, in general terms, to the relevant case-law on the matter, without stating the elements of fact specifically justifying its application in the present case, cannot be sufficient to invalidate the Board of Appeal’s assessment in that regard.
43 That having been said, it should first of all be noted, as the Board of Appeal did without being challenged on that point by the applicant, that the earlier trade mark does not have a clearly dominant element. Furthermore, the distinctiveness of its various components is normal inasmuch as, without making reference to the characteristics of the goods in question, they are devoid of any specific meaning for the relevant public in relation to the goods, namely automobiles, in respect of which the mark was registered.
44 It should also be pointed out that the mark applied for does not have a dominant element either, the number ‘1’, placed directly after the pair of capital letters ‘CK’ without their being separated by a space, not being more visually ‘eye-catching’ than those two letters, which are the same size, colour and font as the number ‘1’.
45 It must also be observed, as the Board of Appeal noted in paragraph 31 of the contested decision, that the earlier trade mark, which consists only of the pair of capital letters ‘CK’, is entirely included in the mark applied for. That fact alone is liable to create a strong visual and phonetic similarity between the signs at issue (see, to that effect, judgments of 8 March 2005, Leder & Schuh v OHIM — Schuhpark Fascies (JELLO SCHUHPARK), T‑32/03, not published, EU:T:2005:82, paragraph 39; of 25 October 2012, riha v OHIM — Lidl Stiftung (VITAL&FIT), T‑552/10, not published, EU:T:2012:576, paragraph 49; and of 29 January 2013, Fon Wireless v OHIM — nfon (nfon), T‑283/11, not published, EU:T:2013:41, paragraph 48).
46 In that regard, while it should be noted that the mark applied for also includes the number ‘1’, that addition cannot be sufficient in itself to rule out such a visual and phonetic similarity between the two marks, created by the common element formed by the pair of capital letters ‘CK’. Such an element, regardless of whether it is dominant within the mark applied for, will be liable, being placed at the beginning, to attract the public’s attention more than the number ‘1’, inasmuch as it will appear to be the more distinctive element of the two. Consumers generally tend to focus on the beginning of a word sign when confronted with a trade mark, as the first part of a trade mark tends to have a greater visual and phonetic impact than the final part (see judgment of 6 October 2011, Seven v OHIM — Seven for all mankind (SEVEN FOR ALL MANKIND), T‑176/10, not published, EU:T:2011:577, paragraph 39 and the case-law cited).
47 In those circumstances, the presence of the number ‘1’ may even make consumers more likely to identify, in the mark applied for, the element ‘ck’ which is common to both marks, as a number is clearly distinct from a combination of letters (see, to that effect and by analogy, judgment of 16 September 2013, Müller-Boré & Partner v OHIM — Popp and Others(MBP), T‑338/09, not published, EU:T:2013:447, paragraph 53).
48 Nevertheless, it should be noted that the signs in question also differ due to the stylistic elements of the letters ‘c’ and ‘k’ of the earlier trade mark, which are not reproduced in the mark applied for. Those stylistic differences are not, however, sufficiently original that consumers, even those having a high level of attention in respect of the goods marketed under that mark, will perceive them as an indicator of the commercial origin of those goods and will consequently make, on that basis, a distinction between the signs in question. It should be borne in mind in that regard that the verbal elements of a trade mark are, in principle, more distinctive than its figurative elements, because the average consumer will more easily refer to the product or service in question by quoting its name than by describing the figurative element of the trade mark (judgment of 14 July 2005, Wassen International v OHIM — Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37). It must therefore be concluded, as the Board of Appeal did, that the stylistic elements of the earlier trade mark are essentially decorative and will have only a limited impact on the relevant public’s visual perception of that mark.
49 Lastly, it is necessary to endorse the Board of Appeal’s position, stated in paragraph 33 of the contested decision, that the lack of conceptual meaning of both the earlier trade mark and the mark applied for does not permit a conceptual comparison of the signs in question to be taken into account in order to assess the degree of similarity between them. Neither the earlier trade mark nor the mark applied for have any meaning whatsoever so far as the relevant public is concerned.
50 Ultimately, although, in the case of short signs, as is correctly argued by the applicant, slight differences may convey different overall impressions (see judgment of 28 April 2016, Gervais Danone v EUIPO — Mahou (B’lue), T‑803/14, not published, EU:T:2016:251, paragraph 46 and the case-law cited), it must be concluded that, in the present case, the visual and phonetic differences between the mark applied for and the earlier trade mark are not such as to divert consumers’ attention from their similarities. In those circumstances, it must be considered that the signs in question display at least an average degree of similarity.
51 Consequently, having regard to all of the foregoing, the Board of Appeal was fully entitled to consider, in paragraph 34 of the contested decision, that there was an overall similarity between the signs in question.
52 The complaint that the signs in question are ‘only remotely similar’ must therefore be rejected.
Likelihood of confusion
53 It should be borne in mind that 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 (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17; see also judgment of 23 March 2017, LE VAL FRANCE, T‑216/16, not published, EU:T:2017:201, paragraph 89 and the case-law cited).
54 The assessment of the likelihood of confusion also depends on the distinctive character attached to the earlier mark, whether such a character is inherent in that mark or whether that mark is recognised as having such a character on account of its recognition by the relevant public on the market in question. Although the more distinctive the earlier mark, the greater will be the likelihood of confusion, it cannot be concluded from this that the finding of a weak distinctive character for the earlier trade mark prevents a finding that there is a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see, to that effect, judgment of 13 December 2007, Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM), T‑134/06, EU:T:2007:387, paragraph 70 and the case-law cited). Conversely, the examination of the distinctive character of the earlier mark is particularly relevant in a situation where there is only a low degree of similarity between the signs and where it is necessary to determine whether that low degree of similarity between the signs may be offset by a high degree of similarity between the goods (judgments of 22 September 2011, ara v OHIM — Allrounder (A with two triangular motifs), T‑174/10, not published, EU:T:2011:519, paragraph 34, and of 13 May 2015, Deutsche Post v OHIM — PostNL Holding (TPG POST), T‑102/14, not published, EU:T:2015:279, paragraph 67).
55 In the present case, as is apparent from paragraphs 33 and 51 above, and contrary to the applicant’s assertions, the Board of Appeal was fully entitled to consider that the mark applied for and the earlier trade mark were similar overall and that the goods concerned were similar in terms of their nature, public, and intended purpose.
56 As a result of the interdependence of the factors, and because the distinctiveness of the earlier trade mark must be regarded as normal, as the Board of Appeal observed in paragraph 29 of the contested decision, given that the earlier trade mark does not, in itself, make reference to the characteristics of the goods in respect of which it was registered and the intervener did not argue that his mark had a highly distinctive character, it must be concluded, having regard to all of the foregoing, that there is a likelihood of confusion on the part of the relevant public inasmuch as it may believe that the goods in question come from the same undertaking or from economically linked undertakings.
57 This is so, contrary to the applicant’s assertions, notwithstanding the fact that the relevant public has a high level of attention, because, inter alia, the average consumer, even if particularly attentive to the goods marketed under such a mark, only very rarely has the chance to make a direct comparison between different marks and must place his trust in the imperfect picture of them which he has retained (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26). In that regard, as was observed by both the Opposition Division and the Board of Appeal, the number ‘1’ might even be perceived as indicative of the sequence number of the earlier trade mark, increasing the potential confusion between the marks in question as relating to the same undertaking.
58 Having regard to all of the foregoing, the complaint that there is no likelihood of confusion must be rejected, as must the single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009 in its entirety.
59 The action must, accordingly, be dismissed.
Costs
60 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.
61 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Kwang Yang Motor Co., Ltd to pay the costs.
Frimodt Nielsen | Forrester | Perillo |
Delivered in open court in Luxembourg on 20 February 2018.
E. Coulon | | S. Frimodt Nielsen |