JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
3 March 2010 (*)
(Community trade mark – Opposition proceedings – Application for Community figurative mark A+ – Earlier Community word mark AirPlus International – Relative grounds for refusal – No likelihood of confusion – Lack of similarity between the signs – Duty to state reasons – Rights of the defence – Articles 8(1)(b) and (5), 73, 74 and 79 of Regulation (EC) No 40/94 (now Articles 8(1)(b) and (5), 75, 76 and 83 of Regulation (EC) No 207/2009))
In Case T‑321/07,
Lufthansa AirPlus Servicekarten GmbH, established in Neu‑Isenburg (Germany), represented by G. Würtenberger, R. Kunze and T. Wittman, lawyers,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Botis, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court, being
Applus Servicios Tecnológicos, SL, established in Barcelona (Spain), represented by E. Torner Lasalle, lawyer,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 7 June 2007 (Case R 310/2006-2), relating to opposition proceedings between Lufthansa AirPlus Servicekarten GmbH and Applus Servicios Tecnológicos, SL,
THE GENERAL COURT (Sixth Chamber),
composed of A.W.H. Meij, President, V. Vadapalas (Rapporteur) and T. Tchipev, Judges,
Registrar: N. Rosner, Administrator,
having regard to the application lodged at the Court Registry on 28 August 2007,
having regard to the response of OHIM lodged at the Court Registry on 20 December 2007,
having regard to the response of the intervener lodged at the Court Registry on 11 December 2007,
further to the hearing on 17 June 2009,
gives the following
Judgment
Background to the dispute
1 On 13 November 2002, the intervener, Applus Servicios Tecnológicos, SL (formerly Agbar Automotive, SL) filed an application for registration of a Community trade mark with 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 in respect of which registration was sought is the following figurative sign:
3 The goods in respect of which the registration was sought fall within Classes 9, 35, 36, 40, 41 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 descriptions:
– Class 9: ‘Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life-saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images, magnetic data carriers, recording discs, automatic vending machines and mechanisms’;
– Class 35: ‘Publicity; business management; business administration; office functions’;
– Class 36: ‘Insurance; financial affairs; monetary affairs; real-estate affairs’;
– Class 37: ‘Building construction; repair; installation services’;
– Class 40: ‘Treatment of materials’;
– Class 41: ‘Providing of education; training; entertainment; sporting and cultural activities’;
– Class 42: ‘Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computers and software; legal services’.
4 That application for registration was published in Community Trade Marks Bulletin No 75/2003 of 29 September 2003.
5 On 29 December 2003, the applicant, Lufthansa AirPlus Servicekarten GmbH, filed a notice of opposition against registration of the trade mark applied for, under Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009). The opposition was based on the earlier Community word mark AirPlus International, registered under number 2 335 693 on 26 September 2002. It was directed against all of the services covered by the Community trade mark application and was based on the goods and services covered by the earlier mark falling within Classes 9, 35, 36, and 42 and corresponding for each of those classes to the following descriptions:
– Class 9: ‘Computer programs recorded on data carriers, in particular for invoice and payment processing and for travel planning and travel costs processing’;
– Class 35: ‘Professional business and organisational consultancy; business advice; business marketing services, in particular the conducting of advertising initiatives, for others, mail advertising, including mailing and compiling of mailing lists; processing of organisational procedures for others, in the fields of business and marketing; conducting and setting up billing systems for others, in particular billing systems for travel’;
– Class 36: ‘Financial services, including credit card company services, in particular the issuing of credit and service cards; concluding monetary transactions with credit cards; financial consultancy; processing of organisational procedures for others in the field of finance; invoicing and payments processing, in particular card billing for the services of others, including the gathering and evaluation of data on such services’;
– Class 42: ‘Data/message processing for others’.
6 By decision of 22 December 2005, the Opposition Division rejected the opposition.
7 On 12 January 2006, the applicant filed a notice of appeal with OHIM against the decision of the Opposition Division, under Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009).
8 By decision of 7 June 2007 (‘the contested decision’), the Second Board of Appeal of OHIM dismissed the applicant’s appeal. The Board of Appeal upheld the Opposition Division’s findings, concluding that there was no likelihood of confusion between the signs at issue because of the differences between them.
Forms of order sought
9 The applicant claims that the Court should:
– annul the contested decision;
– refuse to register the mark applied for;
– order OHIM to pay the costs.
10 OHIM and the intervener contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
11 At the hearing, the applicant stated that it was withdrawing its second head of claim, and the Court took formal note thereof.
Law
12 In support of its claim for annulment, the applicant relies on four pleas in law, alleging, first, infringement of Article 8(1)(b) and (5) of Regulation No 40/94 (Article 8(5) now being Article 8(5) of Regulation No 207/2009), second, infringement of Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009), third, infringement of Article 74 of Regulation No 40/94 (now Article 76 of Regulation No 207/2009) and, fourth, infringement of Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009).
First plea in law, alleging infringement of Article 8(1)(b) and (5) of Regulation No 40/94
Arguments of the parties
13 The applicant submits that the Board of Appeal disregarded the phonetic and conceptual similarities between the marks at issue, the identical nature of the goods and services in question, as well as the enhanced degree of distinctiveness and the reputation of the earlier mark.
14 As regards the first part of the plea, alleging infringement of Article 8(1)(b) of Regulation No 40/94, the applicant submits, first of all, that, although the Board of Appeal acknowledges that there are phonetic similarities between the marks at issue, stating that ‘a plus’ sounds a little like ‘airplus’, at least in English, the Board is wrong to separate the element ‘air’ from the element ‘plus’, and from the element ‘international’. It proceeds from the incorrect assumption that none of those elements has a high degree of inherent distinctiveness.
15 The applicant disputes OHIM’s unsubstantiated assertions that the element ‘plus’ is a ‘banal laudatory term’ which cannot be monopolised, like the element ‘air’ which is not inherently distinctive either.
16 As regards the element ‘international’, the applicant submits that it is descriptive, that it must play an insignificant role in the overall assessment of the marks at issue and that it could not have any impact on the overall impression of the earlier mark, since otherwise the element could be monopolised by a third party.
17 That is even more the case given that, in the relevant trade circles, the element ‘international’ is understood as an indication that the goods and services available provided under the earlier mark are marketed internationally.
18 Consequently, the assumption by the Board of Appeal that the element ‘international’ makes the marks at issue dissimilar is flawed.
19 The applicant submits that ‘mere’ phonetic similarity is sufficient for assuming a likelihood of confusion and that, since the Board of Appeal confirmed that there was a certain degree of conceptual similarity between the marks at issue, it ought to have taken into consideration the similarity of the marks instead of placing too much emphasis on their visual comparison.
20 In contrast to the Board of Appeal’s findings, the design and colours of the mark applied for cannot be regarded as sufficient to deny that the marks at issue are similar or to rule out a likelihood of confusion. To deny that marks are similar on the ground that, despite the existence of phonetic or conceptual similarities, visual elements have been added would undermine general principles of trade mark law and make its function superfluous.
21 In addition, the applicant submits that, in the relevant trade circles, it is not the slight stylisation of the mark applied for that will be remembered, but the word elements, since these enable the mark to be referred to and the same choice to be made on a subsequent occasion. Thus, attention is focussed on the word element of a mark, even when accompanied by figurative elements, and the design element is regarded as merely decorative and not as the most important component indicating the origin of the goods and services.
22 As regards the second part of the plea, alleging infringement of Article 8(5) of Regulation No 40/94, the applicant submits that the Board of Appeal failed to take into consideration the reputation of the earlier mark.
23 It submits, lastly, that, on the basis of the similarity between the marks at issue, the identical nature of the goods and services and the reputation of the earlier mark, the Board of Appeal ought to have concluded that there was a likelihood of confusion.
24 OHIM and the intervener maintain that there is no likelihood of confusion between the marks at issue, and that the contested decision is not vitiated by any error either in the assessment of the facts or in the application of the law.
Findings of the Court
25 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.
26 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, as the case may be, from economically-linked undertakings constitutes a likelihood of confusion (Case T-104/01 Oberhauser v OHIM – Petit Liberto (Fifties) [2002] ECR II-4359, paragraph 25; see also, by analogy, Case C-39/97 Canon [1998] ECR I-5507, paragraph 29, and Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 17).
27 It is also settled case-law that 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 31 and 32, and the case-law cited).
28 That global assessment of the visual, phonetic or conceptual similarity of the signs at issue must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements (see, by analogy, Case C-251/95 SABEL [1997] ECR I‑6191, paragraph 23).
29 In addition, the visual and phonetic similarities between the signs at issue may be counteracted by conceptual differences. For there to be such a counteraction, 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 (Joined Cases T‑183/02 and T-184/02 El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR) [2004] ECR II-965, paragraph 93).
30 In the present case, the Court notes, first of all, that the earlier mark upon which the opposition is based is registered and protected throughout the whole territory of the European Union. Therefore, in establishing whether there may be a likelihood of confusion between the marks at issue, the Board of Appeal, like the Opposition Division, correctly based its assessment on the perception of the mark applied for on the part of the public in the Community.
31 Next, it must be recalled that the Board of Appeal confined itself to examining the similarity of the signs as an essential prerequisite for the existence of a likelihood of confusion under Article 8(1)(b) of Regulation No 40/94.
32 It is therefore appropriate to examine whether the Board of Appeal was correct in finding that the signs at issue were dissimilar.
– Visual similarity
33 Visually, the differences between the marks at issue outweigh the similarities. Those differences are a result of the length of the signs, since the earlier mark is a 20-letter word mark and the mark applied for a figurative mark composed of the single letter ‘a’ and the sign ‘+’.
34 They share only the letter ‘a’ which is, moreover, stylised and yellow in the mark applied for.
35 Therefore, the Board of Appeal was correct to find that the signs at issue were not visually similar.
– Phonetic similarity
36 The Court considers that the Board of Appeal did not err in finding that overall the marks at issue were not similar phonetically. As the Board of Appeal noted in paragraph 19 of the contested decision, the mark applied for is composed of the single letter ‘a’ and the sign ‘+’, whereas the earlier mark comprises three elements, namely ‘air’, ‘plus’ and ‘international’. Taking into account all the elements of which the earlier mark is composed, it cannot therefore be found that overall the marks at issue are phonetically similar.
37 The applicant submits, however, that the English-speaking public is likely to pronounce the mark applied for in a similar way to the ‘airplus’ element of the earlier mark and that the element ‘international’ of the earlier mark is descriptive and therefore plays only a peripheral role in the overall impression given by that mark.
38 In that connection, it must be pointed out that the assessment of the similarity of signs must focus on the marks, considered as a whole, bearing in mind any distinctive and dominant elements. Thus, even if, as the applicant claims, the element ‘international’ of the earlier mark has only a low degree of distinctiveness since it is descriptive, it cannot in any event be disregarded entirely in assessing whether the marks at issue are similar phonetically. In addition, as the Board of Appeal found at paragraph 19 of the contested decision, none of the three elements of the earlier mark is dominant or more distinctive than the others, since they lack a high degree of distinctiveness. In particular, the element ‘international’ does not have such a low degree of distinctiveness by comparison with the ‘airplus’ element that it plays no significant role in the earlier mark. In those circumstances, the possible connection that might be made between the pronunciation in English of the mark applied for and that of the ‘airplus’ element of the earlier mark has no bearing on the lack of overall similarity between the marks at issue, having regard to the overall impression they give.
39 It follows that the Board of Appeal was correct in refusing to disregard the element ‘international’ of the earlier mark for the purposes of assessing whether the marks at issue were similar phonetically and in finding that, in the light of the overall impression given phonetically by those marks, as a whole they were not similar in that regard.
– Conceptual similarity
40 The Board of Appeal rightly found that there was a low degree of conceptual similarity between the signs at issue. Admittedly, both contain the concept ‘plus’, although it is represented differently in them, in particular in the form of the sign ‘+’ in the mark applied for.
41 However, as is apparent from paragraph 20 of the contested decision, that concept occurs in many trade marks and is part of the promotional vocabulary that any undertaking is entitled to use.
42 Therefore, the concept ‘plus’ cannot be monopolised and no opposition is likely to succeed simply because the marks at issue both refer to the word ‘plus’ or to the sign ‘+’.
43 Furthermore, in the light of the significant differences between the signs at issue, which means that they are dissimilar, the Court considers that the Board of Appeal rightly found that it was not necessary to determine whether the goods were similar. The lack of similarity between the signs is sufficient to rule out any likelihood of confusion.
44 Consequently, it must be concluded that the Board of Appeal did not err in finding that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94.
45 It follows from the foregoing that the Board of Appeal was correct to uphold the rejection of the applicant’s opposition under Article 8(1)(b) of Regulation No 40/94.
46 Consequently, the first part of the first plea must be rejected.
47 As regards the second part of the first plea, alleging infringement of Article 8(5) of Regulation No 40/94, it must be noted, as OHIM points out, that the applicant has merely asserted very generally that the Board of Appeal had failed to give sufficient importance to the criteria in connection with the assessment of the likelihood of confusion. However, it has not advanced any argument in support of its assertions.
48 In addition, it is clear from the case-law that the existence of a link between the mark applied for and the earlier mark is an essential condition for the application of Article 8(5) of Regulation No 40/94. The infringements referred to in that provision, where they occur, are the consequence of a certain degree of similarity between the mark applied for and the earlier mark, by virtue of which the relevant public makes a connection between them, that is, establishes a link between them (see, to that effect, Case T-67/04 Spa Monopole v OHIM – Spa-Finders Travel Arrangements (SPA-FINDERS) [2005] ECR II‑1825, paragraph 41).
49 In the present case, as regards that first essential condition for the application of Article 8(5) of Regulation No 40/94, the Board of Appeal found that it was not met, since the signs at issue were neither identical nor similar (paragraphs 17, 21 and 22 of the contested decision).
50 In that respect, it is sufficient to note, as is apparent from the explanations set out above, that the signs at issue are neither identical nor similar.
51 Therefore, since the first of the three cumulative conditions for the application of Article 8(5) of Regulation No 40/94 had not been met, the Board of Appeal rightly decided to reject the applicant’s opposition under Article 8(5) of Regulation No 40/94.
52 Thus, the second part of the first plea in law cannot be upheld.
53 This plea must therefore be rejected as unfounded.
Second plea in law, alleging infringement of Article 73 of Regulation No 40/94
Arguments of the parties
54 The applicant submits that the Board of Appeal did not comply with the principle that the rights of the defence must be observed, since it failed to give objective and impartial reasons for its decision and failed to examine in a comprehensive manner the arguments put forward by the applicant.
55 By disregarding the submissions made by the applicant and its right to submit its arguments and have them heard, the Board of Appeal failed to take into account its comments, which amounts to denying it the right to be heard.
56 The applicant submits that the Board of Appeal’s assertions in the contested decision, that the element ‘international’ is significant when assessing the similarity of the marks at issue and that the element ‘plus’ of the earlier mark cannot be monopolised, severely undermine the distinctiveness of the earlier mark. By proceeding in this way, the Board of Appeal failed to disclose in a clear and unequivocal manner the reasoning followed. That reasoning is ‘poor, if not non‑existent’ and affects the scope of the protection of the earlier mark by restricting its distinctiveness and prejudicing the applicant’s rights.
57 The applicant submits that the fact that the Board of Appeal did not examine the arguments raised by the parties is corroborated by its own statement that no amount of argument from the parties would have been likely to change its finding that the marks at issue are so dissimilar that the opposition cannot succeed under Article 8(1)(b) or Article 8(5) of Regulation No 40/94.
58 OHIM contests the merits of the applicant’s arguments.
Findings of the Court
59 Under Article 73 of Regulation No 40/94, decisions of OHIM are to state the reasons on which they are based. In addition, Rule 50(2)(h) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1) provides that the Board of Appeal’s decision must contain the reasons therefor. The obligation to state reasons, as thus laid down, has the same scope as that which derives from Article 253 EC (Case C-447/02 P KWS Saat v OHIM [2004] ECR I-10107, paragraph 64; Joined Cases T-124/02 and T‑156/02 Sunrider v OHIM – Vitakraft‑Werke Wührmann and Friesland Brands (VITATASTE and METABALANCE 44) [2004] ECR II-1149, paragraph 72).
60 It is settled case-law that the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question. That duty has two purposes: to allow interested parties to know the justification for the measure so as to enable them to protect their rights and to enable the Courts of the European Union to exercise their power to review the legality of the decision (Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 15, and KWS Saat v OHIM, paragraph 59 above, paragraph 65; VITATASTE and METABALANCE 44, paragraph 59 above, paragraph 73).
61 Moreover, under Article 73 of Regulation No 40/94, decisions of OHIM are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments. That provision relates both to factual and legal reasons and to evidence.
62 However, the right to be heard extends to the factual and legal factors on which the decision-making act is based, but not to the final position which the authority intends to adopt (Case T-303/03 Lidl Stiftung v OHIM – REWE-Zentral (Salvita) [2005] ECR II-1917, paragraph 62).
63 In the present case, the contested decision discloses in a clear and unequivocal manner the reasoning followed by the Board of Appeal. As is apparent from the text of the contested decision, which sets out the arguments put forward before the Board of Appeal by the applicant, the latter had an opportunity to present its comments on all the factors on which the contested decision is based (paragraphs 17 to 25 of the contested decision).
64 Since the Board of Appeal had already concluded that the signs were dissimilar and that neither Article 8(1)(b) nor Article 8(5) of Regulation No 40/94 applied, and since it had set out clear reasons in support of that conclusion, it was entitled, for reasons of economy of procedure, not to conduct a full examination of the remaining arguments, in particular the arguments relating to the distinctiveness of the words ‘international’ and ‘plus’, which could under no circumstances affect its decision.
65 Consequently, this plea must also be rejected as unfounded.
Third plea in law, alleging infringement of Article 74 of Regulation No 40/94
Arguments of the parties
66 The applicant submits that the Board of Appeal exceeded its powers under Article 74 of Regulation No 40/94.
67 Given the adversarial nature of the proceedings, the Board of Appeal ought to have based its decision on undisputed facts, in particular the identical nature of the goods and services in question and the enhanced distinctiveness and reputation of the earlier mark, as established by the documents provided.
68 The applicant submits that the Board of Appeal ought not to have taken into consideration the observations submitted by the intervener on 11 December 2006.
69 The original notification to the intervener of the remittal to the Board of Appeal pursuant to Article 60a of Regulation No 40/94 (now Article 62 of Regulation No 207/2009) was sent to the intervener’s representatives by fax on 15 June 2006, inviting it to submit its observations on the appeal within two months of the date of receipt of the notification, that is to say by 15 August 2006.
70 OHIM contacted the intervener’s representatives by telephone on 13 September 2006, and they subsequently submitted a letter stating that they had not received the notification of the appeal as a result of fax‑machine problems. OHIM therefore sent the documents again and granted an extension of time for responding.
71 The applicant submits that the Board of Appeal erred in taking the view that it had a certain discretion which entitled it to take account of the observations submitted, as such a justification is, in the applicant’s submission, based on an incorrect understanding of Article 74 of Regulation No 40/94.
72 The applicant submits that, under Article 78 of Regulation No 40/94 (now Article 81 of Regulation No 207/2009), the proprietor of a Community trade mark or any other party to proceedings before OHIM who, in spite of all due care required by the circumstances having been taken, was unable to comply with a time-limit is, upon application, to have his rights re-established if the obstacle to compliance has the direct consequence, by virtue of the provisions of that regulation, of causing the loss of any right or means of redress. The application must be filed in writing within two months from the removal of the obstacle to compliance with the time-limit, and the omitted act must be completed within this period. The application is only to be admissible within the year immediately following the expiry of the unobserved time-limit.
73 The applicant further submits that restitutio in integrum is only available upon application to OHIM, subject to the payment of a fee, and that, in accordance with point 6.1 of the Guidelines concerning proceedings before OHIM, it is the general practice of OHIM to disregard any statements filed in inter partes proceedings after the expiry of the time-limits set therefor.
74 Given that, contrary to what it stated in its submission of 13 September 2006, the intervener failed to provide sound reasons for the failure to receive the notification sent by OHIM in time, it failed to meet the requirements for restitutio in integrum and, consequently, was excluded from submitting observations which could be taken into account by OHIM.
75 OHIM and the intervener contest the merits of the applicant’s arguments.
Findings of the Court
76 The applicant submits that the Board of Appeal ought not to have taken into consideration the observations submitted by the intervener on 11 December 2006.
77 It must be noted that although, in accordance with Article 74(2) of Regulation No 40/94 (now Article 76(2) of Regulation No 207/2009), OHIM may disregard facts or evidence which are not submitted in due time by the parties concerned, that provision grants it a wide discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account (Case C-29/05 P OHIM v Kaul [2007] ECR I-2213, paragraph 43).
78 In that connection, it must be noted that paragraph 23 of the contested decision clearly states that the intervener’s observations were received in time, further to an extension of time duly granted by OHIM to the intervener because the latter’s fax machine had broken down.
79 Consequently, this plea must also be rejected as unfounded.
Fourth plea in law, alleging infringement of Article 79 of Regulation No 40/94
Arguments of the parties
80 The applicant submits that, by not notifying it of the change in the owner of the Community trade mark application and by not giving it the opportunity to comment on the change in the party to the opposition proceedings, OHIM failed to comply with the principles of procedural law generally recognised in the Member States, as referred to in Article 79 of Regulation No 40/94. That gave rise to a serious breach of the applicant’s right to a fair hearing.
81 The applicant submits that the Board of Appeal’s assertion that this procedural irregularity hardly seemed to justify annulling the contested decision is all the more flawed as it seems that the Board of Appeal itself did not have the complete facts and information correctly to classify the nature of the transfer of the mark. That is borne out by its assertion that ‘it appears that the applicant merely underwent a change of name’. Contrary to that ‘unfounded assumption’ there was, in addition to a change of name, at least a change of address.
82 The applicant points out, lastly, that the conclusion drawn at paragraph 24 of the contested decision, that there is no point in annulling the decision of the Opposition Division on account of a procedural irregularity when the outcome on the merits is clear beyond doubt, reflects the failure of the Board of Appeal to comply with the duties and obligations set out in the relevant provisions of Regulation No 40/94. That statement is of concern given that the Boards of Appeal enjoy a position similar to that of a ‘judicial body’, that they must know that the outcome of proceedings is also dependent on the role of the parties in the course of proceedings, and that, accordingly, procedural law is part of the legal framework within which decisions are to be taken.
83 OHIM and the intervener contest the merits of the applicant’s arguments.
Findings of the Court
84 As is apparent from the file before the Court, in the course of the opposition proceedings, on 8 April 2003, the owner of the Community trade mark application changed its name without the applicant being notified.
85 The applicant submits that it has been prejudiced and alleges infringement of Article 79 of Regulation No 40/94, which provides that, in the absence of procedural provisions in that regulation or the implementing regulations, OHIM is to take into account the principles of procedural law generally recognised in the Member States.
86 However, it must be noted that only the name of the owner of the Community trade mark application changed, as the mark applied for was not altered, and that the applicant does not state how that change adversely affected its procedural rights.
87 Consequently, this plea must also be rejected as unfounded.
88 In the light of all the foregoing, the present action must be dismissed in its entirety.
Costs
89 Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the forms of order sought by OHIM and the intervener.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Lufthansa AirPlus Servicekarten GmbH to pay the costs.
Delivered in open court in Luxembourg on 3 March 2010.
[Signatures]