JUDGMENT OF THE GENERAL COURT (Third Chamber)
15 December 2009 (*)
(Community trade mark – Opposition proceedings – Application for the Community word mark TRUBION – Earlier Community figurative mark TriBion Harmonis – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
In Case T‑412/08,
Trubion Pharmaceuticals, Inc., established in Seattle, Washington (United States), represented by C. Hertz-Eichenrode, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court, being
Merck KGaA, established in Darmstadt (Germany), represented initially by M. Best and R. Freitag, and subsequently by M. Best and U. Pfleghar, lawyers,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 3 July 2008 (Case R 1605/2007‑2), relating to opposition proceedings between Trubion Pharmaceuticals, Inc. and Merck KGaA,
THE GENERAL COURT (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Registry of the Court on 25 September 2008,
having regard to the response of OHIM lodged at the Court Registry on 16 January 2009,
having regard to the response of the intervener lodged at the Court Registry on 16 January 2009,
having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the Court,
gives the following
Judgment
Background to the dispute
1 On 24 February 2004, the applicant, Trubion Pharmaceuticals, Inc., filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2 The mark for which registration was sought was the word sign TRUBION.
3 The goods and services in respect of which registration was sought are in Classes 5 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 5: ‘Pharmaceutical preparations; pharmaceutical preparations for use in the fields of immunology and oncology’;
– Class 42: ‘Pharmaceutical drug development services’.
4 The application for the Community trade mark was published in the Community Trade Marks Bulletin No 50/2004 of 13 December 2004.
5 On 11 March 2005, the intervener, Merck KGaA, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
6 The opposition was based on two earlier Community trade marks, namely the word mark BION (No 72 884) and the following figurative and word mark (No 3 282 936):
7 The figurative and word mark set out above designates inter alia goods in Class 5 corresponding to the following description: ‘dietetic preparations for medical use’.
8 On 10 September 2007, the Opposition Division, first, rejected the opposition with respect to the earlier word mark BION on the ground that the marks concerned were not similar and, second, partially upheld the opposition based on the complex mark TriBion Harmonis in respect of the goods in Class 5, whilst rejecting the opposition in respect of the services in Class 42.
9 On 10 October 2007, the applicant filed an appeal with OHIM under Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009) against the decision of the Opposition Division, in so far as it rejected its application for registration in respect of the goods in Class 5.
10 By decision of 3 July 2008 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the appeal and upheld the decision of the Opposition Division. It essentially found, first, that the goods in question were similar since they often share the same channels of trade and ‘have frequently the same or complementary purpose’. Next, having stated that the term ‘tribion’ was the dominant element in the earlier sign, the Board of Appeal found that the signs at issue were similar. In the light of those findings, it concluded that there was a likelihood of confusion between the word mark applied for and the earlier mark depicted in paragraph 6 above.
11 By letter sent to OHIM on 24 September 2008, that is the day before this action was brought, the applicant, in accordance with Article 44(1) of Regulation No 40/94 (now Article 43(1) of Regulation No 207/2009), stated that it was restricting the list of goods in Class 5 referred to in its application for registration as follows: ‘Pharmaceutical preparations for the treatment of cancer, inflammatory diseases, and autoimmune diseases’. However, the services in Class 42 remained unchanged.
Forms of order sought
12 The applicant claims that the Court should:
– annul the contested decision;
– order OHIM to pay the costs.
13 OHIM and the intervener contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
The restriction of the goods designated in the application for registration
14 As a preliminary point, OHIM contends that the restriction of the goods covered by the mark applied for effected by the applicant by letter of 24 September 2008 (see paragraph 11 above) must be disregarded, since it alters the factual context presented before the Board of Appeal and, consequently, the subject-matter of the dispute before the Court. The Court must therefore review the legality of the contested decision exclusively in the light of the original list of goods and services.
15 In principle, a restriction within the meaning of Article 44(1) of Regulation No 40/94 to the list of goods or services contained in a Community trade mark application made after the adoption of the decision of the Board of Appeal challenged before the Court cannot affect the legality of that decision, which is the only decision being challenged before the Court (see Case T‑304/06 Reber v OHIM– Chocoladefabriken Lindt & Sprüngli(Mozart) [2008] ECR II‑1927, paragraph 25 and the case-law cited).
16 Where the restriction of the list of goods or services contained in a Community trade mark application has the object of changing, in whole or in part, the description of those goods or services, it cannot be ruled out that such an alteration might have had an effect on the examination of the trade mark in question carried out at various stages by OHIM in the course of the administrative procedure. Accordingly, to allow that alteration at the stage of the action before the Court would amount to changing the subject-matter of pending proceedings, which is prohibited by Article 135(4) of the Rules of Procedure of the Court (see Mozart, paragraph 29 and the case-law cited).
17 In the present case, by its alteration, the applicant has withdrawn the reference to the general category ‘Pharmaceutical preparations’, changed the description ‘Pharmaceutical preparations for use in the [field] of … oncology’ to ‘Pharmaceutical preparations for the treatment of cancer’, and substituted the description ‘Pharmaceutical preparations for the treatment of inflammatory diseases, and autoimmune diseases’ for ‘Pharmaceutical preparations for use in the [field] of immunology’ (see paragraphs 3 and 11 above).
18 It must be stated that that restriction consists in specifications which are capable of influencing the assessment of the similarity of the goods in question and, consequently, of altering the factual context which had been presented before the Board of Appeal. The withdrawal of the reference to the general category ‘Pharmaceutical preparations’ constitutes already in itself an alteration which is capable of influencing the examination of the similarity of the goods, since it consists in the withdrawal of the reference to a general category which includes the other goods covered by the mark applied for. Moreover, ‘pharmaceutical preparations for the treatment of autoimmune diseases’ constitute a specification of the category ‘Pharmaceutical preparations for use in the [field] of immunology’, autoimmune diseases being diseases which affect the immune system. Lastly, the reference to pharmaceutical preparations for use in the field of ‘inflammatory diseases’ appears for the first time in the application for restriction of the goods and therefore introduces a new element which was not submitted for examination by the Board of Appeal.
19 In the light of those considerations, that restriction cannot be taken into account by the Court.
Substance
20 In support of its action, the applicant puts forward two pleas, alleging infringement of Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009). Since the two pleas are closely related, it is appropriate to examine them together.
Arguments of the parties
21 In its first plea, the applicant claims that the Board of Appeal erred by failing to take account of the earlier mark as a whole, but assessed the similarity of the signs at issue taking into consideration only the ‘tribion’ element.
22 First, the applicant disputes the Board of Appeal’s conclusion that the term ‘harmonis’ has a lower distinctive character than the term ‘tribion’ because it calls to mind a characteristic of the goods, namely harmony. Dietetic preparations for medical use are not known to consumers for providing mental and physical harmony. Moreover, those goods are not the same as medicinal products for human use with a pharmaceutical effect; this is clear from Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements (OJ 2002 L 183, p. 51).
23 Second, the applicant contests the Board of Appeal’s finding that the term ‘tribion’ is the dominant element in the earlier mark. That conclusion is based solely on a phonetic analysis and neglects, from a visual point of view, the figurative element of the earlier mark. That element has distinctive character and is more than a mere ornamental element. It is larger than the word element and is therefore noticed first by an average consumer. From a conceptual point of view, the term ‘tribion’, which contains the prefix ‘tri’, calls to mind the number three. From a phonetic point of view, the term ‘harmonis’ has no phonetic equivalent in the mark applied for. In conclusion, there are no visual, phonetic or for that matter conceptual similarities between the signs in question.
24 In its second plea, the applicant submits that the Board of Appeal erred in law by failing to determine the degree of similarity of the goods in question and the signs at issue; as a result it was not able to take into account the interdependence between the factors to be considered in its assessment of a likelihood of confusion.
25 OHIM and the intervener dispute the applicant’s arguments.
Findings of the Court
26 Under Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if because of its identity with or similarity to 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.
27 According to settled case‑law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services concerned 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 designated (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraphs 30 to 33 and the case-law cited).
– The relevant public
28 It should be noted that the applicant does not dispute the definition of the relevant public used by the Board of Appeal. It is therefore common ground between the parties that the relevant public is composed both of end consumers and health professionals from the whole of the European Community. In addition, both medicinal products, whether or not acquired on prescription, and dietetic products in general may be regarded as products to which consumers, who are reasonably well‑informed and reasonably observant and circumspect, pay a high degree of attention (judgment of 21 October 2008 in Case T‑95/07 Aventis Pharma v OHIM – Nycomed (PRAZOL), not published in the ECR, paragraph 29).
– The comparison of the goods
29 According to settled case‑law, in order to assess the similarity between the goods or services concerned, 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 Case T‑443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [2007] ECR II‑2579, paragraph 37 and the case-law cited).
30 In the contested decision, the Board of Appeal found that, even though they are of a somewhat different nature, the goods in Class 5 covered by the marks in question, namely pharmaceutical preparations, pharmaceutical preparations for use in the fields of immunology and oncology, and dietetic preparations for medical use, often shared the same distribution channels and ‘ha[d] frequently the same or complementary purpose’, namely to improve the medical condition of patients. It inferred from this that those goods were similar (paragraph 18 of the contested decision).
31 In this respect, it should first be noted that, as OHIM correctly contends, in its action the applicant explicitly confirms that it does not contest the Board of Appeal’s assessment regarding the similarity of the goods. In addition, the points raised by the applicant concerning the similarity of the goods in question refer essentially to the goods as identified following the restriction of the goods designated in the application for registration. However, as was stated at paragraphs 14 to 19 above, since that restriction is capable of altering the factual context of the dispute presented before the Board of Appeal, the Court may not take account of it for the purposes of reviewing the legality of the contested decision. There is therefore no need to examine the arguments of the applicant which are based on that restriction.
32 In any event, even if the applicant wished to dispute the Board of Appeal’s assessment regarding the similarity of the goods, it must be stated that, as the Board of Appeal observed, the goods in question fulfil in general terms the same function, namely to improve the medical condition of patients. In addition, the goods display a certain complementary connection given that a doctor may prescribe dietetic preparations for medical use in the course of medical treatment. That finding is all the more relevant for serious illnesses such as cancer or immunological disorders. Moreover, the goods in question generally share the same distribution channels.
33 In the light of the above, it must therefore be held that the Board of Appeal did not err in law in finding that the goods in question were similar.
– The comparison of the signs
34 According to the case‑law, two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (Case T‑6/01 Matratzen Concord v OHIM – Hukla Germany (MATRATZEN) [2002] ECR II‑4335, paragraph 30). The global assessment of the likelihood of confusion must, as 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 marks in the mind of the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood. In this respect, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see Case C‑334/05 P OHIM v Shaker [2007] ECR I‑4529, paragraph 35 and the case-law cited).
35 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 OHIM v Shaker, paragraph 41 and the case-law cited).
36 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 (OHIM v Shaker, paragraph 42, and judgment of 20 September 2007 in Case C‑193/06 P Nestlé v OHIM, not published in the ECR, paragraph 42). That could be the case, in particular, where that component is capable alone of dominating the image of that mark which members of the relevant public keep in their minds, so that all the other components are negligible in the overall impression created by that mark. In addition, the fact that an element is not negligible does not mean that it is dominant, and by the same token the fact that an element is not dominant in no way means that it is negligible (Nestlé v OHIM, paragraphs 43 and 44).
37 Moreover, with regard to the assessment of the dominant character of one or more given components of a complex 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 complex mark (MATRATZEN, paragraph 35, and judgment of 8 February 2007 in Case T‑88/05 Quelle v OHIM – Nars Cosmetics (NARS), not published in the ECR, paragraph 57).
38 At issue in the present case are, on the one hand, the word sign TRUBION and, on the other, the complex sign consisting of a figurative element depicting three balls of different sizes and the word element ‘tribion harmonis’.
39 The Board of Appeal found that, on the basis of their overall impression, the signs at issue were similar. It essentially based its conclusion on the finding that the word element ‘tribion’ was the dominant element of the earlier mark whilst the word ‘harmonis’ had a ‘lower distinctive character’ with respect to the goods in question and that the figurative element had a fundamentally decorative character. Consequently, despite the differences created by the other elements of the earlier mark, since the mark applied for TRUBION displayed strong similarities to the dominant element of the earlier mark, the Board of Appeal concluded that the signs at issue were similar. It is therefore necessary, first of all, to analyse whether, in the light of the characteristics of the elements making up the earlier mark, the word ‘tribion’ is the dominant element in the overall impression produced by that mark.
40 As regards first the word element of the earlier mark, it should be noted that, as the Board of Appeal also found, the term ‘harmonis’ is likely to play a less significant role than the term ‘tribion’ as an indication of the commercial origin of the goods. In this respect, it must be stated that the term ‘harmonis’ is placed in second position in the word element of the earlier mark. However, consumers generally pay greater attention to the beginning of a word sign than to the end (see, to that effect, Case T‑109/07 L’Oréal v OHIM – Spa Monopole (SPA THERAPY) [2009] ECR II‑0000, paragraph 30 and the case-law cited). Consequently, it is likely that, in view of its position at the beginning of the sign, consumers will primarily perceive the word ‘tribion’ as an indication of the commercial origin of the goods.
41 Moreover, it must be held that the term ‘tribion’ is likely to play the main role in the relevant public’s process of memorising the sign, since, as OHIM rightly states, that term is likely to be perceived by consumers as the sign indicating the commercial origin of the goods, whereas the term ‘harmonis’ is likely to be perceived as a laudatory term indicating a specific product line within the ‘tribion’ range.
42 In this respect, it should be noted that, in the health products sector and to an even greater extent in the sector of products complementing health products, such as that of dietetic preparations, manufacturers very frequently market product lines within ranges bearing a specific word sign indicating the commercial origin of the goods followed by various word elements with an essentially descriptive and/or laudatory function of the characteristics specific to the different products in the range.
43 Even if it is true, as the applicant claims, that physical and mental harmony probably cannot be regarded as an intrinsic characteristic of dietetic preparations for medical use, that finding in no way detracts from the fact that, as OHIM and the intervener rightly contend, the term ‘harmonis’ is sufficiently close to the term ‘harmony’ to give rise to positive associations in the public’s mind, so that it may well be perceived as a laudatory term suggesting that the goods in question restore the body’s balance. It is therefore likely that consumers will perceive the term ‘harmonis’ as a laudatory term indicating a specific product line within the ‘tribion’ range.
44 As regards the figurative element, although it is larger than the word element of the earlier mark, it is not arranged in a specific, original or elaborate manner, in such a way that it might significantly influence the overall impression produced by the earlier sign. Moreover, as OHIM rightly states, that figurative element has no clear semantic content on its own.
45 In addition, it should be borne in mind that, where a trade mark is composed of verbal 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 quoting their name than by describing the figurative element of the trade mark (see judgment of 22 May 2008 in Case T‑205/06 NewSoft Technology v OHIM – Soft (Presto! Bizcard Reader), not published in the ECR, paragraph 54 and the case-law cited). In the light of the characteristics of the figurative element of the earlier mark which were described above, the Board of Appeal was therefore right to take the view that that general reasoning could apply in the present case. In conclusion, even if it is not negligible in terms of its size, that figurative element is likely to be perceived by consumers essentially as a decorative element, and not as an element indicating the commercial origin of the goods.
46 In the light of all the foregoing, it must be held that the Board of Appeal did not err in finding that the term ‘tribion’ was the dominant element in the earlier mark. However, although they play a secondary role, the other elements of the earlier mark are not negligible in the overall impression produced by it. Accordingly, in the light of the case‑law referred to in paragraph 36 above, the comparison of the signs in question cannot be made on the sole basis of the dominant element of the earlier mark, but must be made having regard to the marks at issue each considered as a whole (see, to that effect, judgment of 6 May 2008 in Case T‑246/06 Redcats v OHIM – Revert & Cía (REVERIE), not published in the ECR, paragraph 39). It is in the light of those considerations that the signs in question must be compared.
47 As regards the visual comparison of the signs in question, it should be noted that the word mark TRUBION applied for is almost identical to the term ‘tribion’, which is the dominant element of the earlier mark. The difference between the marks at issue stemming from the middle letters ‘u’ and ‘i’ is practically imperceptible, even for a very attentive public, whether or not professional.
48 It is true that the figurative element and the word ‘harmonis’ in the earlier mark create visual differences between the two marks at issue. However, as was explained in paragraphs 40 to 46 above, those two elements are likely to play a less significant role in distinguishing the goods in the mind of the relevant public. Consequently, it is reasonable to expect that the average consumer has a tendency to focus on the dominant element ‘tribion’ of the earlier mark, namely on the part of the earlier mark which is virtually identical to the mark applied for and which is indeed the only element of the mark applied for.
49 In the light of the characteristics of the elements of which the earlier mark consists, it must be concluded in the present case that there is a certain amount of visual similarity between the signs in question when they are viewed as a whole.
50 As regards the phonetic comparison, it should be noted that there is also a very strong phonetic similarity between the mark applied for and the dominant element of the earlier mark. The difference in sound between the third letters ‘u’ and ‘i’ of the words ‘trubion’ and ‘tribion’ is marginal in comparison with the identity in sound of the six other common letters.
51 However, although the additional word element of the earlier mark, namely the word ‘harmonis’, creates a certain amount of difference between the marks at issue, that difference is negligible from the phonetic point of view. The word ‘harmonis’ is clearly detached, in the earlier mark, from the almost identical element found in the two marks at issue, since there is a break before that word is spoken. The way that it is spoken does not therefore have an appreciable phonetic impact and does not affect the fact that the sole element of the mark applied for and the dominant element of the earlier mark sound almost exactly identical.
52 In the light of those considerations, it must be observed that, in the present case, contrary to the applicant’s submission, the phonetic difference created by the presence of the word ‘harmonis’ in the earlier mark is not able to counteract, or call in question, the virtual phonetic identity of the mark applied for and the dominant element of the earlier mark in such a way as to render very different, in phonetic terms, the overall impression of the two marks at issue. The Board of Appeal did not therefore err with respect to the phonetic comparison of the signs at issue.
53 From the conceptual point of view, it must be noted, as the Board of Appeal did, that it is not possible to carry out a conceptual comparison between the marks at issue, since neither the term ‘tribion’ nor the term ‘trubion’ has any meaning in the languages of the European Union. In this respect, it is true that, as the applicant claims, the prefix ‘tri’ is derived from a widely used Greek root meaning ‘three’. However, that observation does not apply in this case, since the word ‘bion’ does not have any meaning on its own or any meaning which could be linked to the concept of ‘three’. Moreover, it is also true that, as OHIM acknowledges, unlike the mark applied for, the earlier mark contains a reference to harmony. However, the term ‘harmonis’ is likely to be perceived as a laudatory term in respect of the element indicating the commercial origin of the goods, namely the word ‘tribion’; this confers on ‘harmonis’ a secondary role for distinguishing the goods in question. In the light of that finding, the presence of the term ‘harmonis’ in the earlier mark is not capable of affecting the overall impression produced by the marks at issue from a conceptual point of view.
54 In the light of all the foregoing, it must be held that the Board of Appeal did not commit an error of assessment in concluding that, as a whole, the signs in question were similar. Furthermore, far from having only taken into consideration in its analysis the element ‘tribion’, as the applicant claims, the Board of Appeal based its analysis on an overall assessment of the two signs at issue.
– The likelihood of confusion
55 The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services concerned and taking into account all factors relevant to the circumstances of the case. That global assessment takes account of the degree of similarity between the marks and between the goods or services covered and implies some interdependence between the factors taken into account, so that 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 (see, to that effect, Case C‑39/97 Canon [1998] ECR I‑5507, paragraph 17).
56 At paragraphs 29 and 30 of the contested decision, the Board of Appeal found that, in the light of the similarity between the goods in question and between the signs at issue, it was more than likely that the relevant public will believe that the goods in question bearing the signs at issue come from the same undertaking or, as the case may be, from undertakings that are economically linked. It concluded from this that there was a likelihood of confusion between the marks in question on the part of the relevant public in the European Community.
57 In the light of the abovementioned considerations regarding the similarity of the goods in question and of the signs at issue, that conclusion must be upheld. In particular, it is common ground that the goods in question generally share the same distribution channels. Furthermore, as was stated at paragraph 42 above, it is very common to find on the market several health product lines bearing a word sign followed by one or more descriptive or laudatory elements. It is also common for pharmaceutical companies, such as the applicant, to market goods complementing medical treatment, such as dietetic preparations for medical use.
58 In the light of those considerations and of the similarity between the goods in question and between the signs in question, and in particular of the fact that the word mark applied for is almost identical to the dominant element of the earlier mark which is likely to be regarded as an element indicating the commercial origin of the goods, it must be held that the Board of Appeal did not err in finding that there was a likelihood of confusion in this case.
59 Lastly, in view of the likelihood of confusion thus established between the marks at issue, the applicant’s argument that the Board of Appeal erred in law by failing to take account of the interdependence of the relevant factors, since it did not determine the degree of similarity (i) between the goods in question and (ii) between the signs at issue, is not capable of invalidating the global assessment of that likelihood, as effected by the Board of Appeal in the light of all the relevant features of those trade marks. The mere absence of a reference to the interdependence between the factors taken into account in the contested decision cannot lead to a presumption that the assessment of the likelihood of confusion set out therein is vitiated by an error (see, to that effect, Case T‑202/04 Madaus v OHIM – Optima Healthcare (ECHINAID) [2006] ECR II‑1115, paragraphs 65 and 66). In any event, the Court observes that, by finding that the goods in question (see paragraph 18 of the contested decision) and the signs at issue (see paragraph 27 of the contested decision) were similar, the Board of Appeal accordingly took account of the interdependence of the relevant factors when carrying out the global analysis of the likelihood of confusion between the marks at issue.
60 It follows from all the foregoing that this action must be dismissed in its entirety.
Costs
61 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
62 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM and the intervener.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Trubion Pharmaceuticals, Inc. to pay the costs.
Azizi | Cremona | Frimodt Nielsen |
Delivered in open court in Luxembourg on 15 December 2009.
[Signatures]