Case C-206/04 P

Mülhens GmbH & Co. KG

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

(Appeal – Community trade mark – Article 8(1)(b) of Regulation (EC) No 40/94 – Likelihood of confusion – Word mark ZIRH – Opposition by the proprietor of the Community trade mark SIR)

Summary of the Judgment

1.        Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services

(Council Regulation No 40/94, Art. 8(1)(b))

2.        Appeals – Grounds of appeal – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of matters of fact submitted to the Court of First Instance – Excluded unless the sense of the evidence has been distorted

(Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.)

1.        In assessing the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94 on the Community trade mark between two signs which are not visually or conceptually similar but which are phonetically similar in certain countries, it is conceivable that the marks’ phonetic similarity alone could create a likelihood of confusion within the meaning of that provision. However, the existence of such a likelihood must be established as part of a global assessment as regards the conceptual, visual and aural similarities of the signs at issue. In that regard, the assessment of any aural similarity is but one of the relevant factors for the purpose of that global assessment, so that there is not necessarily a likelihood of confusion each time that mere phonetic similarity between two signs is established.

Moreover, that global assessment means that conceptual and visual differences between two signs may counteract aural similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately.

(see paras 19-22, 35)

2.        It is clear from the second subparagraph of Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court of Justice that an appeal lies on points of law only. The Court of First Instance thus has exclusive jurisdiction to find and appraise the relevant facts and assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.

(see paras 28, 41)