JUDGMENT OF THE GENERAL COURT (Single Judge)
1 June 2016 (*)
(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark CHEMPIOIL — Earlier figurative mark CHAMPION — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Examination of the facts of the Office’s own motion — Obligation to state reasons — Rights of the defence — Articles 75 and 76 of Regulation No 207/2009)
In Case T‑34/15,
Wolf Oil Corp., established in Hemiksem (Belgium), represented by P. Maeyaert and J. Muyldermans, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by L. Rampini, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being:
UAB SCT Lubricants, established in Klaipėda (Lithuania), represented by S. Labesius, lawyer,
ACTION for annulment brought against the decision of the Fifth Board of Appeal of EUIPO of 31 October 2014 (Case R 1596/2013-5), concerning opposition proceedings between Wolf Oil Corp. and UAB SCT Lubricants,
THE GENERAL COURT (Single Judge),
Judge: I. Labucka,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 22 January 2015,
having regard to the response of EUIPO lodged at the Court Registry on 30 April 2015,
having regard to the response of the intervener lodged at the Court Registry on 22 April 2015,
having regard to the decision of 2 July 2015 refusing leave to lodge a reply,
further to the hearing on 26 February 2016,
gives the following
Judgment
Background to the dispute
1 On 9 March 2011, the intervener, UAB SCT Lubricants, obtained the international registration designating the European Union of the word mark CHEMPIOIL under number 1 076 327. Notice thereof was given to 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) on 2 June 2011 and published in Community Trade Marks Bulletin No 105/2011 of 6 June 2011.
2 The goods in respect of which registration was applied for are in Classes 1, 3 and 4 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, inter alia, for each of those classes, to the following description:
– Class 1: ‘hydraulic fluids; brake fluids’;
– Class 3: ‘Washing and cleaning preparations; cleaning, polishing, scouring and abrasive preparations; cleaning preparations for oil-soiled engines and other soiled industrial objects; cleaning preparations for fuel pipes and injection systems of engines, in particular of motor vehicle engines; car care products, namely wash preservative agents, paint cleaning products, paint preservative agents in paste form and liquid form; paint waxes; washing shampoos; washing preparations for vehicle washing equipment; powder and liquid pre-washing and washing preparations for steam-jet equipment and high pressure cleaning equipment; water repellent agents for vehicle washing equipment; chrome care products; plastic cleaning products; impregnating agents and cleaning preparations for motor vehicle folding roofs; plastic care products; upholstery care products; wheel rim cleaning preparations; soaps’;
– Class 4: ‘Lubricants; dust absorbing, wetting and binding compositions; fuels (including motor spirit); industrial greases and industrial oils, including engine, transmission, compressor and hydraulic oils; contact oils and contact greases; nonchemical additives for oil, fuels, in particular for petrol and diesel fuels; non-chemical additives for industrial greases, industrial oils, engine oils, transmission oils, compressor oils and hydraulic oils’.
3 On 23 January 2012, the applicant, Wolf Oil Corp., filed a notice of opposition under Article 42(1) of Regulation No 207/2009 to registration of the mark applied for in respect of all of the goods covered.
4 The opposition was based inter alia on the international registration designating the European Union and France of the figurative mark CHAMPION, reproduced below, registered on 12 November 2010 under number 1 059 799 for the goods in Classes 1, 3 and 4 and corresponding, for each of those classes, to the following description:
– Class 1: ‘Antifreeze and antifreeze compositions’;
– Class 3: ‘Cleaning, polishing, scouring and abrasive preparations; soaps, rinsing oils; stain removers; polishing paper; cleaning fluids for car windows’;
– Class 4: ‘Industrial oils and greases; lubricants; dust laying compositions; fuels, including motor spirit, and illuminants’:
5 The grounds of the opposition were those of Article 8(1)(b) of Regulation No 207/2009.
6 On 18 July 2013, the Opposition Division upheld the opposition for the goods referred to in paragraph 2 above and dismissed it for the other goods in respect of which the mark was sought. In particular, it submitted that, for those goods, there was a likelihood of confusion between the trade mark applied for and the earlier mark.
7 On 25 September 2013, the intervener lodged an appeal before EUIPO against the Opposition Division’s decision under Articles 58 to 64 of Regulation No 207/2009.
8 By decision of 31 October 2014 (‘the contested decision’), the Fifth Board of Appeal of EUIPO upheld the appeal, annulled the Opposition Division’s decision in so far as it had upheld the opposition in respect of the goods referred to in paragraph 2 above and rejected the opposition in respect of those goods. It found, in essence, that there was no likelihood of confusion between the marks at issue because the signs were different. More specifically, it observed that the word ‘champion’ which made up the earlier mark would be understood by most EU consumers, whereas the sign making up the mark applied for would not be associated with any concept, except perhaps that of oil. Consequently, the relevant public would draw a distinction between the signs at issue, despite their visual and phonetic similarities, even with respect to goods for which consumers tend to display a low level of attention. It further found that it had not been demonstrated that the relevant consumers were familiar with the earlier mark, with the result that the distinctiveness of that mark had not been proven.
9 The Board of Appeal also examined the question whether there was a likelihood of confusion between the mark applied for and the other earlier rights relied on by the applicant, whose existence and, where applicable, genuine use had been proven. It reached the conclusion that there was no likelihood of confusion between those marks and the mark applied for.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO and the intervener to pay the costs.
11 EUIPO contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs;
12 The intervener contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs, including the expenses incurred by it in connection with the proceedings before the Board of Appeal.
Law
13 The applicant relies on two pleas in law in support of its action, alleging, first, infringement of Articles 75 and 76(1) of Regulation No 207/2009 and, second, infringement of Article 8(1)(b) of that regulation.
14 It is appropriate to begin the assessment of the present action by considering the second plea in law.
The second plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
15 The applicant challenges, in essence, the Board of Appeal’s finding that the signs at issue are conceptually different and that those conceptual differences in this case offset any visual and phonetic similarity, with the result that there is no likelihood of confusion between the marks at issue.
16 In particular, it submits that the word ‘champion’ has meaning only for some non-English and non-French speaking EU consumers. Consequently, some EU consumers will not attribute any specific and clear meaning to the word which might offset the visual and phonetic similarities. The conceptual differences are not decisive for the purpose of determining the overall similarities between the marks.
17 EUIPO and the intervener contest those arguments.
18 Under Article 156(1) of Regulation No 207/2009, an international registration designating the European Union is subject to opposition in the same way as published EU trade mark applications.
19 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, 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. Furthermore, under Article 8(2)(a)(iv) of Regulation No 207/2009, ‘earlier trade marks’ means trade marks registered under international arrangements which have effect in the European Union with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
20 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 that same line of case-law, the likelihood of confusion must be assessed globally according to the relevant public’s perception of the signs and the goods or services at issue, 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 (see judgment of 9 July 2003 in Laboratorios RTB v OHIM — Giorgio Beverley Hills (GIORGIO BEVERLEY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
21 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).
22 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, it must be borne in mind that, in order for registration of an EU trade mark to be refused, it is sufficient that a relative ground for refusal under Article 8(1)(b) of Regulation No 207/2009 exists in part of the European Union (see, to that effect, judgment of 14 December 2006 in Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
23 According to case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
24 In the present case, the Board of Appeal found that it was appropriate to base the examination of the likelihood of confusion on the perception of the marks at issue by the public in the European Union.
25 With respect to the composition of the relevant public and its level of attention, the Board of Appeal found, in paragraph 26 of the contested decision, that the ‘hydraulic fluids’ covered by the trade mark applied for and falling within Class 1 were targeted at professionals who pay an enhanced level of attention.
26 It is also apparent from the Board of Appeal’s analysis that certain goods covered by the trade mark applied for, which fall within Class 3, namely ‘washing and cleaning preparations; cleaning, polishing, scouring and abrasive preparations; car care products, namely wash preservative agents, paint cleaning products, paint preservative agents in paste form and liquid form; paint waxes; washing shampoos; washing preparations for vehicle washing equipment; water repellent agents for vehicle washing equipment; chrome care products; plastic cleaning products; impregnating agents and cleaning preparations for motor vehicle folding roofs; plastic care products; upholstery care products; wheel rim cleaning preparations; soaps’, are everyday consumer items and, therefore, are targeted at the general public displaying an average level of attention. In paragraph 30 of the contested decision, the Board of Appeal held that the same finding also applied to some of the goods covered by the earlier mark, namely ‘antifreeze and antifreeze compositions’, falling within Class 1, and ‘cleaning, polishing, scouring and abrasive preparations; soaps, rinsing oils; stain removers; polishing paper; cleaning fluids for car windows’, falling within Class 3.
27 With respect to the other goods covered by the marks at issue, the Board of Appeal found, in paragraphs 27 and 28 of the contested decision, that they were used by professionals in the vehicle industry such as factories and repair shops, though they might also be bought directly by car owners. The whole of the public targeted by those goods was found to pay an enhanced level of attention.
28 The Board of Appeal’s assessment is not flawed and must thus be confirmed. Moreover, it should be noted that the applicant does not dispute those findings.
Comparison of the goods
29 With respect to the comparison of the goods, the Board of Appeal, in paragraph 45 of the contested decision, confirmed the Opposition Division’s assessment that the goods at issue, namely those referred to in paragraphs 2 and 4 above, were identical or similar.
30 That conclusion, which is moreover not disputed by the applicant, must be confirmed in the present case.
Comparison of the signs
31 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, account being taken, in particular, of their distinctive and dominant components. 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 that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007 in EUIPO v Shaker, C‑334/05 P, ECR, EU:C:2007:333, paragraph 35 and the case-law cited).
32 In the present case, the Board of Appeal found, in paragraph 51 of the contested decision, that the signs at issue were visually and phonetically similar, since the word elements ‘champion’ and ‘chempioil’ have almost the same lengths and six letters in common. Those six letters are in the same position in the two signs. It found that the signs were less similar visually than aurally since the earlier mark is a figurative mark containing a red background.
33 Those conclusions, which are not disputed by parties, are not flawed and must be confirmed.
34 With respect to the comparison of the conceptual aspects of the signs, the Board of Appeal found, in paragraph 56 of the contested decision, that the element ‘champion’ would be understood by the vast majority of consumers throughout the European Union, including in Estonia and Slovakia, countries in which, according to the Opposition Division, consumers would not understand the meaning of the word ‘champion’.
35 It noted that that word was particularly known in the field of sport and mentioned, by way of example, UEFA (Union of European Football Associations) Champions League, whose name in English is commonly used; in the field of music, referring to the song ‘We Are the Champions’ by the band Queen; and in the arts, literature and cinema. Similarly, it found that the word ‘champion’ could be translated by a similar word in the various languages of the European Union like ‘šampión’ in Slovakian or ‘tšempion’ in Estonian. It also gave other examples: ‘šampión’ in Czech and ‘čempionas’ in Lithuanian.
36 With respect to the sign making up the trade mark applied for, the Board of Appeal held, in paragraph 60 of the contested decision, that it would not be linked to any concept at all, or to that of oil chemicals since ‘chem’ could be seen as alluding to ‘chemicals’ and ‘oil’ as referring to a raw product.
37 The applicant submits that it is clearly inadequate that the Board of Appeal held that the vast majority of consumers throughout the European Union attributed a specific conceptual meaning to the English word ‘champion’ by relying on mere allegations. It submits that the Board of Appeal’s finding does not hold true for anybody who is not familiar with or interested in the UEFA Champions League or the band Queen’s success since the 1970s and takes the view that that is the case for a significant part of consumers. Furthermore, awareness of those items does not, per se, imply that a person knows and understands the exact meaning of the word, or the correct spelling in English. In addition, the applicant argues that it is not possible to assume that the translation of the word ‘champion’ in the languages of the European Union would produce similar visual or phonetic results. It therefore submits that none of the signs has a specific meaning for a significant share of EU consumers.
38 If, however, the earlier sign had a specific meaning, the applicant submits that the CHEMPIOIL sign would, at the very least, have a meaning which, at least for part of the public, would not be very different to that of ‘champion’ and would be understood as ‘champion of oil’.
39 In the present case, it must be noted that the sign making up the earlier mark CHAMPION is an English and French word meaning a person who has beaten or overcome his rivals in a competition, in particular in the field of sport, which is part of the basic vocabulary of those languages. It is a common word with an immediately obvious meaning to the public of the European Union (see, to that effect, judgment of 8 September 2010 in Icebreaker v OHIM — Gilmar (ICEBREAKER), T‑112/09, not published, EU:T:2010:361, paragraph 41). Moreover, as noted by the Board of Appeal, a similar word exists in the vast majority of languages of the Member States of the European Union.
40 Furthermore, as argued by the Board of Appeal, the word ‘champion’ is used extensively in various fields of daily life such as the arts, literature, cinema, music or sport. Consequently, taking account of the above elements, the Board of Appeal’s assessment that the earlier mark will be understood by the vast majority of the relevant public is not flawed and must be confirmed.
41 As to the reference to the Champions League and to the song ‘We are the Champions’ performed by the band Queen, whose fame in the eyes of the public of the European Union is disputed by the applicant, it should be noted that those examples were cited by the Board of Appeal by way of illustration. Therefore, even if part of the public does not know either of those two examples, the fact remains that the word is commonly used in various fields of life, as was noted in paragraph 39 above.
42 With respect, by contrast, to the CHEMPIOIL sign, it does not convey any clear concept, as noted by the Board of Appeal in paragraph 60 of the contested decision. However, it is possible that it may be understood, by part of the public, as referring to oil, inasmuch as it contains the element ‘oil’. The element ‘chem’ could, as noted by the Board of Appeal, be understood as alluding to ‘chemicals’. However, it is unlikely that a significant part of the public will associate a specific meaning to that sign.
43 Similarly, the applicant’s argument that the sign constituting the trade mark applied for could be perceived as a variation of ‘champion’, namely ‘champion of oil’, must be rejected. As noted, correctly, by the Board of Appeal, in paragraph 60 of the contested decision, the abbreviation, in English, of the word ‘champion’ is ‘champ’ and not ‘chemp’ or ‘chempi’. Consequently, it is unlikely that the sign CHEMPIOIL would be perceived as a variant of CHAMPION.
44 With respect to the case-law relied on by the applicant, namely the judgments of 1 February 2005 in SPAG v OHIM — Dann and Backer (HOOLIGAN) (T‑57/03, EU:T:2005:29); 16 September 2009 in Offshore Legends v OHIM — Acteon (OFFSHORE LEGENDS in black and white and OFFSHORE LEGENDS in blue, black and green) (T‑305/07 and T‑306/07, not published, EU:T:2009:335); and 13 September 2010 in Inditex v OHIM — Marín Díaz de Cerio (OFTEN) (T‑292/08, EU:T:2010:399), it must be held that it is not applicable to the present action. In all those judgments, the issue of the comprehension or pronunciation of a word in a foreign language by a public who does not necessarily speak that language was touched upon.
45 The present case is clearly of a different nature. On the one hand, it should be recalled that the English and French word ‘champion’ is a common word, whose meaning is immediately perceived by the public of the European Union (see paragraph 39 above). On the other hand, as held by the Board of Appeal in paragraphs 57 to 59 of the contested decision, a large proportion of the languages of the European Union have an equivalent to the English and French word ‘champion’ which is pronounced in a very similar way. Consequently, even people who do not speak basic English or French will be able to understand the meaning of the earlier mark.
46 Furthermore, according to settled case-law, conceptual differences may counteract to a large extent visual or phonetic similarities between the signs concerned. For there to be such a counteraction, however, at least one of the marks at issue must have, from the point of view of the relevant public, a clear and specific meaning so that the public is capable of grasping it immediately and the other mark must have no such meaning or an entirely different meaning (see, to that effect, judgments of 24 March 2011 in Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 66, and 14 October 2003 in Phillips-Van Heusen v OHIM — Pash Textilvertrieb und Einzelhandel (BASS), T‑292/01, EU:T:2003:264, paragraph 54).
47 That is so in the present case. As is apparent from the Board of Appeal’s analysis, confirmed by the Court in paragraphs 39 to 42 above, the relevant public will immediately understand the meaning of the word ‘champion’, of which the earlier mark is made up, as describing a person who has beaten or overcome all his rivals in a competition, in particular in the field of sport. The CHEMPIOIL sign, in contrast, does not have a clear meaning immediately capable of being understood by the relevant public.
48 The Board of Appeal thus correctly held, in paragraph 62 of the contested decision, that a consumer would make a distinction between the signs at issue, despite their visual and phonetic similarities.
49 The applicant’s argument taken from the judgment of 8 September 2010 in ICEBREAKER (T‑112/09, not published, EU:T:2010:361, paragraph 42) must also be rejected. In the judgment in question, the Court held that since the two signs at issue, namely ‘icebreaker’ and ‘iceberg’, contained the prefix ‘ice’, which was part of basic English vocabulary in the same way as ‘iceberg’, the conceptual difference between those two signs was limited. That is not the case here, since neither of the CHAMPION and CHEMPIOIL signs at issue contain words capable of being understood by all of the relevant public.
Likelihood of confusion
50 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 lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998 in Canon, C‑39/97, EU:C:1998:442, paragraph 17, and 14 December 2006 in VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
51 In the present case, the Board of Appeal took the view that there was no likelihood of confusion between the marks at issue since the signs at issue were different, including with respect to those goods for which the level of attention of the relevant public is average. It found in particular that the earlier mark had an average level of distinctiveness and that it had not been shown that that distinctiveness was high.
52 The applicant submits that the Board of Appeal, in dismissing the possibility of there being any similarity between the signs at issue, did not conduct an overall assessment of the likelihood of confusion.
53 That criticism is manifestly unfounded. The Board of Appeal expressly indicated, in paragraph 76 of the contested decision, that the requirement of identity or similarity of signs, indispensable for the finding of a likelihood of confusion under Article 8(1)(b) of Regulation No 207/2009, was not met. It should be recalled that the requirements set out in Article 8(1)(b) of Regulation No 207/2009 are cumulative (see, to that effect, judgment of 24 March 2011 in Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 66).
54 The Board of Appeal therefore correctly concluded that there was no likelihood of confusion between the marks at issue.
55 With respect to EUIPO’s earlier decisions, relied on by the applicant, it should be noted that, although, having regard to the principles of equal treatment and sound administration, EUIPO must take into account the decisions already taken and consider with especial care whether it should decide in the same way or not, the way in which those principles are applied must, however, be consistent with respect for the principle of legality, which precludes a person who files an application for registration of a sign as a trade mark from relying, to his advantage and in order to secure an identical decision, on a possibly unlawful act that was to the advantage of someone else (judgment of 23 October 2015 in Hansen v OHIM (WIN365), T‑264/14, not published, EU:T:2015:803, paragraph 38; see also, to that effect, judgment of 10 March 2011 in Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 76).
56 In the present case, as was noted above, the Board of Appeal was entitled to find that the word ‘champion’ would be understood by the vast majority of the relevant public.
57 Moreover, there is no likelihood of confusion between the trade mark applied for and the other, in particular word, marks relied on by the applicant in support of its opposition whose existence and, where applicable, genuine use were proven during the proceedings before EUIPO. As in the case of the international registration designating the European Union and France, all of the earlier marks relied on contain the element ‘champion’, which is the dominant element thereof.
58 In the light of the whole of the above, the second plea must be dismissed.
The first plea, alleging infringement of Articles 75 and 76(1) of Regulation No 207/2009
59 As part of the present plea, the applicant, in essence, submits three pleas, alleging, respectively, misuse of powers, breach of the obligation to state reasons and also of the applicant’s rights of defence.
The first plea, alleging a misuse of powers
60 The applicant submits that the Board of Appeal infringed Article 76(1) of Regulation No 207/2009 inasmuch as it failed to substantiate its reasoning to the effect that all of the relevant public would understand the conceptual meaning of the earlier mark. The Board of Appeal ought to have referred to the exact sources.
61 EUIPO and the intervener contest those arguments.
62 In the present case, apart from the fact that the word ‘champion’ means, in French and in English, a person who has beaten or overcome all his rivals in a competition, especially, in the field of sport, the Board of Appeal noted, in particular, that that word was known to a large majority of EU consumers as a result of their awareness of the UEFA Champions League, of the band Queen’s song ‘We are the Champions’ and because there was a similar word in the various languages of the European Union (paragraphs 54, 57 and 58 of the contested decision).
63 It should be noted that, in confirming that the word ‘champion’ which is part of the earlier mark would be understood by a large majority of the relevant public, the Board of Appeal relied, as correctly stated by EUIPO, on the one hand, on the arguments submitted by the intervener during the administrative procedure which the applicant, moreover, acknowledged and, on the other, on well-known facts.
64 In that regard, it must be noted that, under Article 76(1) of Regulation No 207/2009, ‘in proceedings relating to relative grounds for refusal of registration, the [examination by EUIPO] shall be restricted … to the facts, evidence and arguments provided by the parties and the relief sought’. According to settled case-law, that provision relates, inter alia, to the factual basis of EUIPO decisions, namely the facts and evidence on which those decisions may validly be based. Thus, the Board of Appeal, when hearing an appeal against a decision terminating opposition proceedings, may base its decision only on the evidence and facts submitted by the parties. However, the restriction of the factual basis of the examination by the Board of Appeal does not preclude it from taking into consideration facts which are well known, that is, facts which are likely to be known by anyone or which may be learnt from generally accessible sources (judgments of 22 June 2004 in Ruiz-Picasso and Others v OHIM — DaimlerChrysler (PICARO), T‑185/02, EU:T:2004:189, paragraphs 28 and 29, and 13 June 2012 in XXXLutz Marken v OHIM — Meyer Manufacturing (CIRCON), T‑542/10, not published, EU:T:2012:294, paragraph 38).
65 The applicant submits, in essence, that any reference to well-known facts must be supported by a reference to exact sources.
66 That interpretation cannot be accepted. Inasmuch as facts shown by practical experience generally acquired and likely to be known to anyone, including the relevant public, are well known (see, to that effect, judgment of 22 June 2006 in Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraph 54), EUIPO cannot be expected, when referring to those facts, to systematically give their exact source. They are facts likely to be known to all.
67 In that regard, it should be recalled that whilst it is in principle the task of those bodies to establish in their decisions the accuracy of such facts, such is not the case where they rely on facts which are well known. It should be noted that where EUIPO relies on such well-known facts against a party, the latter may challenge their accuracy before the General Court (judgments of 22 June 2006 in Storck v OHIM, C‑25/05 P, EU:C:2006:422, paragraphs 50 to 52, and 10 February 2015 in Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13, not published, EU:T:2015:81, paragraph 90).
68 With respect to the applicant’s statement, in paragraph 21 of the application, that the three elements mentioned in paragraph 62 above are inadequate, it relates, in fact, to the merits and not to whether the Board of Appeal may take account of facts other than those relied on by the parties.
69 Thus, the Board of Appeal did not infringe Article 76(1) of Regulation No 207/2009 in referring, in paragraphs 57 and 58 of the contested decision, to well-known facts.
The second plea, based on breach of the requirement to give reasons
70 The applicant submits that, in basing its conclusion relating to the relevant public’s understanding of the word ‘champion’ on three simple, unsubstantiated elements, the Board of Appeal failed to provide a proper statement of reasons, thus infringing Article 75 of Regulation No 207/2009. The reasons given by the Board of Appeal are too general and too abstract to explain why a large majority of the public would attribute a given conceptual meaning to the word ‘champion’.
71 EUIPO and the intervener contest those arguments.
72 In that regard, it should be recalled that, in accordance with the first sentence of Article 75 of Regulation No 207/2009, EUIPO decisions must state the reasons on which they are based. The obligation to state reasons, as thus laid down, has the same scope as that which derives from Article 296 TFEU. It is settled case-law that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review (see judgment of 15 November 2011 in Abbott Laboratories v EUIPO (RESTORE), T‑363/10, not published, paragraph 73 and the case-law cited).
73 In the present case, it should be noted that when the Board of Appeal stated, in paragraph 56 of the contested decision, that the word ‘champion’ would in fact be understood by the vast majority of consumers throughout the European Union, it also indicated, in paragraphs 57, 58, 152 and 153 of that decision, the reasons which led it to that conclusion. It must be held that, by referring to the elements cited in paragraph 62 above, the Board of Appeal clearly and unequivocally set out the reasoning which led it to find that the word ‘champion’ would be understood by a large majority of the relevant public, which enabled, in particular, the applicant to ascertain the reasons for that conclusion.
74 Moreover, by arguing, in paragraph 29 of the application, that the contested decision incorrectly stated that anyone in the European Union would understand the meaning of the word ‘champion’ and, accordingly, failed to provide a proper statement of reasons, the applicant manifestly confuses once more the merits of the contested decision with EUIPO’s obligation to state reasons.
75 It follows that the plea alleging infringement of the obligation to state reasons is manifestly unfounded.
The third plea, alleging breach of the rights of the defence
76 The applicant submits that the Board of Appeal infringed the applicant’s fundamental rights of defence inasmuch as the applicant was not able to express its position on the circumstances raised by the Board of Appeal of its own motion.
77 EUIPO and the intervener contest those arguments.
78 According to settled case-law, it follows from the second sentence of Article 75 of Regulation No 207/2009 that EUIPO may base its decision only on matters of fact or of law on which the parties have been able to set out their views (judgments of 21 October 2004 in KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraph 42, and 7 February 2007 in Kustom Musical Amplification v OHIM (Shape of a guitar), T‑317/05, EU:T:2007:39, paragraph 25).
79 That provision affirms, in EU trade mark law, the general principle of protection of the rights of the defence (see judgment of 12 May 2009 in Jurado Hermanos v OHIM (JURADO), T‑410/07, EU:T:2009:153, paragraph 31 and the case-law cited). According to that principle, a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity to make his point of view known (judgment of 7 February 2007 in Shape of a guitar, T‑317/05, EU:T:2007:39, paragraph 26).
80 The right to be heard extends to all the factual and legal material which forms the basis for the decision, but not to the final position which the authority intends to adopt (judgments of 3 December 2003 in Audi v OHIM (TDI), T‑16/02, EU:T:2003:327, paragraph 75; 7 February 2007 in Shape of a guitar, T‑317/05, EU:T:2007:39, paragraph 27; and 23 September 2009 in Evets v OHIM (DANELECTRO and QWIK TUNE), T‑20/08 and T‑21/08, EU:T:2009:356, paragraph 47).
81 It must be noted that the circumstances that the Board of Appeal raised of its own motion relate to the conceptual comparison of the signs at issue. It must therefore be held that, by its allegations, the applicant is referring to paragraphs 57 and 58 of the contested decision containing the information referred to in paragraph 62 above.
82 As noted by EUIPO, the question of the meaning of the word ‘champion’ was discussed during the administrative procedure, in particular before the Opposition Division. Specifically, the argument that the word ‘champion’ was commonly understood as designating someone who has beaten all his competitors in a competition was put forward by the intervener in its observations before the Opposition Division and reiterated before the Board of Appeal. The applicant therefore had the possibility of submitting argument on that point both before the Opposition Division and before the Board of Appeal, which it in fact did since, in its submissions to the Board of Appeal, it disputed that the word ‘champion’ was understood by the whole of the relevant public.
83 With respect to the well-known facts on which the Board of Appeal relied in paragraphs 57 and 58, it should be noted that these are elements likely to be known to the applicant, since they are well-known facts known to all or capable of being known from generally accessible sources (see, to that effect, judgment of 20 March 2013 in Bimbo v OHIM — Café do Brasil (Caffè KIMBO), T‑277/12, not published, EU:T:2013:146, paragraph 46 and the case-law cited). The applicant may therefore not validly claim a right to be heard in respect of each well-known fact on which the Board of Appeal relied in its statement of reasons in respect of which, moreover, it expressed a view.
84 In addition, it must be noted that, in accordance with the case-law cited in paragraph 67 above, the applicant was in a position to challenge the accuracy of the well-known facts before the Court.
85 The Board of Appeal therefore did not infringe, in the present case, the applicant’s right to be heard. The present complaint must therefore be rejected.
86 In view of all of the foregoing, the present plea in law must be rejected and the action dismissed in its entirety.
Costs
87 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. Under Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs.
88 Since the applicant has been unsuccessful in the present case, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener. Those costs shall include the costs necessarily incurred by the intervener for the purposes of the proceedings before the Board of Appeal.
ON THOSE GROUNDS
THE GENERAL COURT (Single Judge),
hereby:
1. Dismisses the action;
2. Orders Wolf Oil Corp. to pay the costs, including those incurred by UAB SCT Lubricants for the purposes of the proceedings before the Board of Appeal.
Delivered in open court in Luxembourg on 1 June 2016.
[Signatures]