The Cookware Company v OHMI - Fissler (VITA+VERDE) [2016] EUECJ T-535/14 (14 January 2016)

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(Community trade mark — Opposition proceedings — Application for the Community figurative mark VITA+VERDE — Earlier word mark VITAVIT — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

The Cookware Company Ltd, established in Hong Kong (China), represented by K. Manhaeve, lawyer,

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by V. Melgar, acting as Agent,

the other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court, being

Fissler GmbH, established in Idar-Oberstein (Germany), represented by A. Späth and V. Töbelmann, lawyers,

ACTION brought against the decision of the Second Board of Appeal of OHIM of 15 April 2014 (Case R 1082/2013-2), relating to opposition proceedings between Fissler GmbH and The Cookware Company Ltd,

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

having regard to the response of OHIM lodged at the Court Registry on 4 November 2014,

having regard to the response of the intervener lodged at the Court Registry on 10 November 2014,

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 rule on the action without an oral procedure pursuant to Article 135a of the Rules of Procedure of the General Court of 2 May 1991,

1 On 24 June 2011, the applicant, The Cookware Company Ltd, filed an application for registration of a Community trade mark with the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).

3 The goods in respect of which registration was sought are in Class 21 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Household or kitchen utensils and containers, namely cooking pots, non-electric cooking utensils and recipients for preparing, preserving, keeping warm and serving food products and drinks’.

4 The Community trade mark application was published in Community Trade Marks Bulletin No 2011/154 of 17 August 2011.

5 On 15 November 2011, the intervener, Fissler GmbH, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the mark applied for in respect of the goods referred to in paragraph 3 above. The opposition was based on the earlier word mark VITAVIT, which was registered on 15 July 2009 under the number 1013787.

6 The goods covered by the earlier mark and which formed the basis for the opposition are in Class 21 and correspond to the following description: ‘Household or kitchen utensils and containers; combs and sponges; brushes (except paint brushes); brush-making materials; articles for cleaning purposes; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware (included in this class)’.

7 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009.

8 By decision of 16 April 2013, the Opposition Division rejected the opposition in its entirety.

9 On 13 June 2013, the intervener, Fissler GmbH, filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.

10 By decision of 15 April 2014 (‘the contested decision’), the Second Board of Appeal of OHIM upheld the appeal and annulled the decision of the Opposition Division because that decision held there was no likelihood of confusion between the marks at issue within the meaning of Article 8(1)(b) of Regulation No 207/2009.

11 The Board of Appeal found, first of all, that the relevant public was the average consumer belonging both to the general public and to the specialist public in the European Union. Next, concurring with the Opposition Division’s view, the Board of Appeal found that the goods covered by the mark applied for were identical to those covered by the earlier mark. The Board of Appeal then found that there was a likelihood of confusion between the signs at issue because they were phonetically similar and, to a certain extent, visually and conceptually similar. It took the view that the signs at issue begin with the same sequence of letters, namely ‘v’, ‘i’, ‘t’ and ‘a’, followed, in fifth position, by the letter ‘v’. It found that the signs at issue are also, to a certain extent, conceptually similar for the part of the relevant public which would be able to understand the word element ‘vita’ and that the light green ‘+’ sign would be perceived as a merely decorative element.

15 The applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

16 The applicant submits, in essence, that the Board of Appeal erred in law in the application of Article 8(1)(b) of Regulation No 207/2009 in finding, first, that the level of attention of the relevant public was not higher than average and, secondly, that there was a certain degree of similarity between the signs at issue although there are visual, phonetic and conceptual differences resulting from the presence of the elements ‘+’ and ‘verde’ solely in the mark applied for and the element ‘vita’ is weakly distinctive. It maintains that the Board of Appeal therefore erred in finding that there was a likelihood of confusion in the present case.

18 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 must not be registered if because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 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.

19 According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003 in Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, ECR, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

20 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).

21 The relevant factors mentioned in paragraph 19 above also include the distinctive character of the earlier trade mark, whether that distinctive character derives from the inherent qualities of that mark or its reputation. However, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion, in particular if the goods or services at issue are identical and the signs at issue are similar (see judgment of 29 April 2015 in Hostel Tourist World v OHIM — WRI Nominees (HostelTouristWorld.com), T‑566/13, EU:T:2015:239, paragraph 67 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, for a Community trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 207/2009 exists in part of the 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, ECR, EU:T:2006:397, paragraph 76 and the case-law cited).

23 It is in the light of those principles that the Board of Appeal’s assessment of the likelihood of confusion between the marks at issue must be examined.

24 In the present case, the applicant takes the view that the relevant public displays a higher than average level of attention because the price and quality of household or kitchen utensils related to the preparing and storing of food may vary considerably. It submits that given that the average consumer does not regularly buy the goods in question, his level of attention when buying those goods must be taken to be higher than his normal level of attention. Furthermore, it submits that the goods at issue by their nature induce brand loyalty which reduces the risk that consumers would mistake one mark for another. Lastly, it maintains that professionals who are part of the relevant public will, by definition, display a higher level of attention than that of the average consumer.

25 According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of products 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, ECR, EU:T:2007:46, paragraph 42 and the case-law cited).

26 The Board of Appeal correctly pointed out, in paragraphs 17 and 18 of the contested decision, that the goods covered by the marks at issue were intended both for the general public — the level of attention of which is average — and for the specialist public, in particular in the catering sector — which displays a level of attention that is higher than average — throughout the European Union.

27 In that connection, it must be stated that, according to the case-law, as regards the assessment of the likelihood of confusion, the section of the public which has the lowest level of attention must be taken into consideration (see, to that effect, judgment of 8 September 2010 in Kido v OHIM — Amberes (SCORPIONEXO), T‑152/08, EU:T:2010:357, paragraph 40).

28 It must be held that, contrary to what the applicant maintains, the level of attention to be applied in the present case is that of the average consumer who is deemed to be reasonably well informed and reasonably observant when he purchases the goods covered by the marks at issue.

29 That finding cannot be invalidated by the applicant’s arguments based on the idea that household or kitchen utensils are not regularly purchased by the general public, regarding which it relies on the judgment of 16 January 2008 in Inter-Ikea v OHIM — Waibel (idea) (T‑112/06, EU:T:2008:10, paragraph 37). Although it does not take place on a daily basis, the purchase of household or kitchen utensils is nevertheless more commonplace, easier and cheaper than the purchase of items of furniture, the goods to which the judgment in idea (EU:T:2008:10) related, which generally requires more reflection.

30 Furthermore, the applicant’s claim that consumers of the goods at issue are particularly loyal to branded goods is in no way substantiated (see, by analogy, judgment of 13 April 2005 in Gillette v OHIM — Wilkinson Sword (RIGHT GUARD XTREME sport), T‑286/03, EU:T:2005:126, paragraphs 20 and 21) and must therefore also be rejected.

31 In conclusion, the argument that there was an error of assessment as regards the relevant public must be rejected as unfounded.

32 According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 11 July 2007 in El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, ECR, EU:T:2007:219, paragraph 37 and the case-law cited).

33 In the present case, all the goods covered by the mark applied for are also covered by the earlier mark. Consequently, it must be held that the goods concerned are identical to those covered by the earlier mark, which has, moreover, not been disputed.

34 The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007 in OHIM v Shaker, C‑334/05 P, ECR, EU:C:2007:333, 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 judgment in OHIM v Shaker, cited in paragraph 34 above, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgments in OHIM v Shaker, cited in paragraph 34 above, EU:C:2007:333, paragraph 42, and of 20 September 2007 in Nestlé v OHIM, C‑193/06 P, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment in Nestlé v OHIM, EU:C:2007:539, paragraph 43).

36 Although the applicant admits that the marks at issue have the letters ‘v’, ‘i’, ‘t’, ‘a’ and ‘v’ in common, it maintains that, in the light of the many visual differences between them, those marks are not visually similar. It states that the mark applied for, in addition to the fact that it is longer, consists of two different word elements, in bold letters, which are separated by a distinctive figurative colour element, whereas the earlier mark consists of a single word element. In particular, the applicant criticises the Board of Appeal for finding, in paragraph 29 of the contested decision, that the letter ‘v’ of the element ‘verde’ is ‘placed in the same position’ as the fifth letter of the earlier mark although that letter ‘v’ will, since the mark applied for consists of two separate word elements, in fact be perceived as the first letter of the second part of the mark applied for. Furthermore, although the applicant agrees with the Board of Appeal’s finding that there is no dominant element in the signs at issue, it maintains that the ‘+’ sign and the element ‘verde’ are not negligible and that it must be concluded from this that those signs are visually dissimilar.

37 As regards the visual comparison, it must be pointed out, first, that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005 in Chum v OHIM — Star TV (STAR TV), T‑359/02, ECR, EU:T:2005:156, paragraph 43 and the case-law cited).

38 It must be pointed out, next, that the presence, in each of the marks at issue, of several letters in the same order may be of some importance in the assessment of the visual similarities between those marks (see, to that effect, judgment of 25 March 2009 in Kaul v OHIM — Bayer (ARCOL), T‑402/07, ECR, EU:T:2009:85, paragraph 83).

39 It must be stated, first of all, that the Board of Appeal correctly held that the signs at issue included no elements which could be considered to be clearly more dominant than the others, which the applicant does not, moreover, dispute.

40 As regards, next, the distinctive character of the word ‘vita’ which is present in each of the marks at issue, it must be held, as the Board of Appeal found in paragraphs 27 and 28 of the contested decision, that although the word ‘vita’ may evoke generally a positive quality attributable to a large range of different goods (see, to that effect, judgment of 12 July 2006 in Vitakraft-Werke Wührmann v OHIM — Johnson’s Veterinary Products (VITACOAT), T‑277/04, ECR, EU:T:2006:202, paragraph 54), the absence of any direct relationship between the word in question and the goods covered by the marks at issue makes it a distinctive feature of those marks.

41 Furthermore, that finding cannot be invalidated by the applicant’s argument that a considerable number of marks incorporating the word ‘vita’ have been registered. It is impossible to know whether the marks on which the applicant is relying had a direct relationship with the goods which are at issue in the present case.

42 The Board of Appeal therefore rightly found, in paragraphs 25 to 30 of the contested decision, that there was a certain degree of similarity between the signs at issue, in so far as they begin with the identical sequence of letters, namely ‘v’, ‘i’, ‘t’ and ‘a’, followed by the letter ‘v’ placed in the same position, and that that was so although they differ in their structures, inter alia, on account of their different endings, and notwithstanding the presence, in the mark applied for alone, of a light green ‘+’ sign.

43 As OHIM correctly pointed out in its response, the ‘+’ sign is an element which occurs in many trade marks and in the promotional vocabulary that any undertaking is entitled to use. Furthermore, contrary to what the applicant submits, the element ‘+’, as used, is not predominant in the sign VITA+VERDE. Consequently, although the element ‘+’ is not negligible, the applicant’s argument that it creates a visual split which precludes any likelihood of confusion with the earlier mark must be rejected.

44 In conclusion, the Board of Appeal was correct to find that there was a certain degree of visual similarity between the signs at issue.

45 The applicant submits, inter alia, that the relevant public will tend to place the stress on the first syllable of the mark applied for whereas, as regards the earlier mark, the stress will be placed on the third syllable. Furthermore, it maintains that the ‘+’ sign will create a distinct pause in the pronunciation of the first and second elements of the mark applied for.

46 The Board of Appeal stated, in paragraphs 31 and 32 of the contested decision, that, phonetically, despite the differences in their final sequence of letters and the fact that the earlier mark consists of only one word in contrast to the mark applied for, the signs had to be considered phonetically similar.

47 In that regard, it must be pointed out, as the Board of Appeal itself stated, that the pronunciation of the signs coincides as to the sounds given by the initial sequence of letters ‘v’, ‘i’, ‘t’, ‘a’ and ‘v’ and that, contrary to what the applicant claims, the relevant public will not pause between the two elements of the mark applied for but will tend to pronounce both marks according to the same rhythm, in particular on account of the presence of the consonant ‘v’ after the vowel ‘a’.

48 It follows from the foregoing considerations that the Board of Appeal correctly concluded that the signs at issue are phonetically similar.

49 After pointing out that the word ‘vita’, which is included in the mark VITA+VERDE, would be understood by a substantial part of the relevant public — at least the Italian, Spanish, French, German, Portuguese and Romanian public — as a reference to the concept of ‘life’ and/or ‘vitality’, the Board of Appeal stated, in paragraph 33 of the contested decision, that the part of the public that speaks Italian, Spanish, Portuguese and Romanian would understand the word element ‘verde’ as meaning ‘green’. Furthermore, the Board of Appeal pointed out that a certain part of the public, more specifically the Italian public, would perceive the word in question as evoking something ‘ecological’ or ‘bio’. Next, according to the Board of Appeal’s analysis, the figurative symbol ‘+’ situated between the elements ‘vita’ and ‘verde’ would be understood by all of the European Union public as referring to the concept of ‘plus’ or to a green cross. The Board of Appeal also stated, in paragraph 34 of the contested decision, that, although the earlier mark is in principle meaningless, it is likely to be understood, by the part of the relevant public that understands the element ‘vita’, as a reference to the concepts of ‘life’ or ‘vitality’, on account of the presence of that element at the beginning of that mark. It added that the ending of the earlier mark, ‘vit’, would additionally be seen as a reference to the concept of ‘life’ or to that of ‘vitamin’.

50 Although it admits that the word ‘vita’ used as the first component in the mark applied for may be understood by part of the relevant public as a reference to the concept of life and/or vitality, the applicant takes the view that, in the circumstances of the present case, there is no conceptual relationship between the mark applied for and the earlier mark. In particular, the applicant maintains that the Board of Appeal may be criticised for having carried out, even though it considered that the signs at issue included no elements which could be considered to be dominant, a conceptual comparison of the signs based solely on the letters ‘v’, ‘i’, ‘t’ and ‘a’ which both marks have in common, with no serious analysis of the impact which the presence of the other components of the mark applied for has on the comparison between the signs. Furthermore, referring to the case-law resulting from the judgment in VITACOAT, cited in paragraph 40 above, (EU:T:2006:202), the applicant also criticises the Board of Appeal for failing, in paragraph 28 of the contested decision, to have regard to the word ‘vita’ as a weakly distinctive feature of the signs under comparison.

51 It must be stated that the Board of Appeal was correct in drawing a distinction between the different publics. Consequently, first, it rightly stated, in paragraph 35 of the contested decision, that for a certain part of the relevant public, the marks at issue would be perceived as meaningless and that, consequently, no conceptual comparison could be carried out between them.

52 Secondly, it found that the part of the relevant public which understood the element ‘vita’ as a reference to the concept of ‘life’ and/or ‘vitality’ would perceive the conceptual similarities of the beginnings of the two marks at issue. It also pointed out, in paragraph 36 of the contested decision, that that part of the relevant public would be able to perceive the differences between the signs due to the elements ‘+’ and ‘verde’, which are only present in the mark applied for. It follows that the Board of Appeal rightly found that, for that part of the relevant public, there is a certain degree of conceptual similarity between the signs at issue.

53 Those findings cannot be called into question by the applicant’s argument based on the case-law resulting from the judgment in VITACOAT, cited in paragraph 40 above, (EU:T:2006:202). First, in that case, the ending of one of the marks at issue was conceptually understood by the whole of the relevant public in question, which explained the weaker distinctive character of the element ‘vita’ in that case. Secondly, that case-law only confirms that the part of the relevant public that perceives the conceptual similarities between the beginnings of the marks at issue will also understand the differences in their endings, which has already been established above.

54 Furthermore, the Board of Appeal in no way failed to seriously analyse the impact of the presence of the elements other than ‘vita’ in its assessment of the conceptual similarity of the marks at issue. It duly examined that impact in paragraphs 33 and 36 of the contested decision and concluded, in paragraph 37 of that decision, that, for the part of the relevant public that understands the meaning of ‘vita’ and ‘verde’, the signs at issue are conceptually similar to a certain extent.

55 Likewise, the applicant’s argument that the distinctive character of the element ‘vita’ is weakened by the existence of a considerable number of registered marks incorporating that word cannot succeed for the reasons set out in paragraph 41 above.

56 It follows from the foregoing that the Board of Appeal correctly held that, for a significant part of the relevant public, there is a certain degree of conceptual similarity between the signs at issue.

57 The Board of Appeal found, in paragraphs 42 to 46 of the contested decision, that the earlier mark had a normal degree of inherent distinctiveness and that there was a likelihood of confusion between the marks at issue. It took the view that, in addition to the goods being identical, the signs at issue were globally similar to a certain degree. It found that, given the presence at the beginning of each of the signs at issue of the element ‘vita’ — which those signs have in common and which does not have any obvious descriptive connotation in the present case — followed in each of the marks by the letter ‘v’, and having regard to the fact that the level of attention of average consumers of the goods concerned is normal, the marks at issue had to be considered to be globally similar to a certain degree. In the Board of Appeal’s view, that conclusion cannot be called into question by the presence, in the mark applied for alone, of the light green ‘+’ sign because it is likely to be perceived as a decorative element and not as an element indicating the commercial origin of the goods concerned.

58 The applicant disputes the Board of Appeal’s assessment. It submits, first, that the light green ‘+’ sign in the middle of the mark applied for will not be perceived, because of its characteristics and its position, as a ‘decorative element’ and that the Board of Appeal erred in finding that the relevant public will, in principle, more easily refer to the goods at issue by quoting their name rather than by describing the figurative element of the mark. It takes the view that, given their nature, the relevant public will examine the goods at issue mainly from a visual point of view, thus lessening the importance of a phonetic comparison. Furthermore, the applicant maintains that, in the present case, the public will not retain the beginnings of the signs at issue more than their endings, in view, inter alia, of the very weak distinctive character of the element ‘vita’.

59 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998 in Canon, C‑39/97, ECR, EU:C:1998:442, paragraph 17, and VENADO with frame and others, cited in paragraph 22 above, EU:T:2006:397, paragraph 74).

60 In the present case, it is apparent from the foregoing that there is a certain degree of visual similarity between the marks at issue. Phonetically, they must be considered to be similar. Lastly, from a conceptual standpoint, the signs are, for a part of the relevant public, similar to a certain extent. Given that the goods at issue are identical and that the marks at issue are similar overall, it must be held that, as the Board of Appeal rightly found, on account of the decisive influence, in the overall impression created by the signs, of their identical beginnings, ‘vita’, the public could possibly believe that the goods at issue come from the same undertaking or from economically-linked undertakings.

61 The applicant’s arguments cannot invalidate that finding. In the first place, it must be borne in mind that, according to settled case-law, as far as marks containing word elements are concerned, consumers generally pay greater attention to the beginning of a mark than to the end (judgments of 21 February 2013 in Esge v OHIM — De’Longhi Benelux (KMIX), T‑444/10, EU:T:2013:89, paragraph 27, and 19 April 2013 Hultafors Group v OHIM — Società Italiana Calzature (Snickers), T‑537/11, EU:T:2013:207, paragraph 41).

62 In the second place, it must be borne in mind that, where a mark is composed of word 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 NewSoft Technology v OHIM — Soft (Presto! Bizcard Reader), T‑205/06, EU:T:2008:163, paragraph 54 and the case-law cited). The Board of Appeal was therefore right to find, in paragraph 45 of the contested decision, that that general reasoning was applicable to the present case. Although the figurative element of a light green ‘+’ in the middle of the mark applied for is not negligible, it is likely to be perceived by the consumer essentially as a decorative element and not as an element which indicates the commercial origin of the goods.

63 As regards the importance which should be given to the visual aspect in the comparison of the signs at issue having regard to the nature of the goods, it is true that, in the context of the global assessment of the likelihood of confusion, the visual, phonetic and conceptual aspects of the signs at issue do not always have the same weight and that it is then appropriate to examine the objective conditions under which the marks may be present on the market (judgment of 6 October 2004 in New Look v OHIM — Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection), T‑117/03 to T‑119/03 and T‑171/03, ECR, EU:T:2004:293, paragraph 49).

64 However, the applicant did not, in its application, give the slightest indication as to the conditions under which the goods covered by the mark applied for are marketed. In that context, even if it is assumed that those goods are usually sold in self-service shops in which consumers choose the product themselves and must therefore rely primarily on the image of the trade mark applied to the product, which would have the effect of conferring greater importance on the visual similarity of the signs at issue, the fact remains that, in the present case, there is in any event a certain degree of visual similarity between those signs.

65 Furthermore, even under such marketing conditions and in the absence of any information in that regard, the greater importance which the visual aspect would have in the global assessment of the likelihood of confusion would only reduce but not eliminate the importance of the phonetic similarity of the signs at issue.

66 In the third place, as regards the distinctive character of the element ‘vita’ which is present in each of the signs at issue, it has already been established that the Board of Appeal did not err in finding that the element ‘vita’ had to be considered to be a distinctive feature of the signs under comparison. The applicant is not justified in claiming that there is a contradiction in the Board of Appeal’s reasoning. It must be borne in mind, as has already been established in paragraph 54 above, that it is apparent from the examination of the contested decision that the Board of Appeal in no way confined itself to comparing the signs at issue by relying solely on the element ‘vita’ but correctly analysed the impact of the other elements of the mark applied for on the conceptual comparison of the signs at issue.

67 It follows that, overall, in the light of the foregoing and of the fact that the goods are identical and the relevant public consists of average consumers in the European Union belonging both to the general public and to the specialist public, the Board of Appeal was right to find that there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

68 There is no need to assess the applicant’s arguments relating to the intervener’s arguments in the course of the opposition proceedings, that the latter is the proprietor of a family of trade marks including the term ‘vita’, given that the Board of Appeal rightly found that, since it had concluded that there was a likelihood of confusion between the marks at issue, there was no need to examine the intervener’s arguments that it owns a family of marks including the term ‘vita’.

69 Consequently, the single plea in law must be rejected and the action must therefore be dismissed in its entirety.

70 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.

71 Since 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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> The Cookware Company v OHMI - Fissler (VITA+VERDE) [2016] EUECJ T-535/14 (14 January 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T53514.html Cite as: [2016] EUECJ T-535/14, EU:T:2016:2, ECLI:EU:T:2016:2

Court of Justice of the European Communities (including Court of First Instance Decisions)