Point Tec Products v EUIPO - Longines, Francillon (Representation de deux ailes deployees autour d'un triangle) (EU trade mark - Judgment) [2021] EUECJ T-615/19 (28 April 2021)

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(EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark representing two extended wings around a triangle – Earlier EU figurative mark representing two extended wings around a rectangle – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – Article 72(2) of Regulation 2017/1001)

Point Tec Products Electronic GmbH, established in Ismaning (Germany), represented by D. Wiedemann, lawyer,

European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė and S. Hanne, acting as Agents,

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

Compagnie des montres Longines, Francillon S.A., established in Saint-Imier (Switzerland), represented by P. González-Bueno Catalán de Ocón, lawyer,

ACTION brought against the decision of the Fifth Board of Appeal of OHIM of 8 July 2019 (Case R 2427/2018‑5), relating to opposition proceedings between Compagnie des montres Longines, Francillon and Point Tec Products Electronic,

composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and R. Norkus, Judges,

having regard to the application lodged at the Court Registry on 12 September 2019,

having regard to the response of EUIPO lodged at the Court Registry on 21 November 2019,

having regard to the response of the intervener lodged at the Court Registry on 28 November 2019,

1 By the international registration designating the European Union filed on 3 February 2017 in Germany under number 1349160 and registered on that date, enjoying the priority date of 23 August 2016 based on the German trade mark registered under number 302016024973, the applicant, Point Tec Products Electronic GmbH, applied for the protection in the European Union of a figurative mark. That registration was notified to the European Union Intellectual Property Office (EUIPO) on 8 June 2017, pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2 The international registration for which protection in the European Union was sought consists of the following figurative mark:

3 The goods in respect of which protection in the European Union was sought fall within Classes 3, 14 and 25 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

– Class 3: ‘Perfumery, preparation for body and beauty care; soaps, hair lotions’;

4 The trade mark application was published in European Union Trade Marks Bulletin No 108/2017 of 9 June 2017.

5 On 15 September 2017, the intervener, Compagnie des montres Longines, Francillon S.A., filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to the protection in the European Union of the mark applied for in respect of the goods in Class 14 referred to in paragraph 3 above.

6 The opposition was based on the earlier EU figurative mark reproduced below, filed on 15 April 1996 and registered on 12 November 1998 under number 225714, designating in particular goods in Class 14 and corresponding to the following description: ‘Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments’; a reputation was claimed in respect of the goods in the ‘horological and chronometric instruments’ category:

7 The grounds relied on in support of the opposition were those referred to in Article 8(1)(b) and Article 8(5) of Regulation No 207/2009 (now Article 8(1)(b) and Article 8(5) of Regulation 2017/1001).

8 On 31 October 2018, the Opposition Division dismissed the opposition in its entirety. It ruled out any likelihood of confusion, in accordance with Article 8(1)(b) of Regulation No 207/2009, notwithstanding the identity of the goods in question. It also found that, on the basis of the lack of reputation of the earlier mark, Article 8(5) of Regulation No 207/2009 could not be applied.

9 On 12 December 2018, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.

10 By decision of 8 July 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO annulled the decision of the Opposition Division and refused to grant protection in the European Union to the mark applied for in respect of all the goods in question in Class 14.

11 First, the Board of Appeal found that the distinctiveness of the earlier mark was average. In that regard, it stated that the various items of evidence submitted by the proprietor of that mark did not make it possible to establish the existence of a reputation or enhanced distinctiveness.

12 Second, the Board of Appeal found that the level of attention of the relevant public varied from ‘average’ to ‘high’, in so far as the goods in question, in Class 14, could include both inexpensive and other more expensive goods, which require reflection on the part of consumers who wish to purchase them, whether they be the general public or even a professional public.

13 Third, the goods in Class 14 covered by the mark applied for, that is the ‘watches and chronometric instruments’, were found by the Board of Appeal to be identical to the goods designated as ‘horological and chronometric instruments’, protected by the earlier mark in that class.

14 Fourth, with regard to the comparison of the signs at issue, the Board of Appeal found, first of all, that an assessment of the phonetic similarities was not possible in respect of purely figurative signs. Next, visually, the Board of Appeal found that there was a low degree of similarity between the signs at issue. Lastly, with regard to the conceptual comparison, the Board of Appeal found that the signs at issue were ‘at least similar to an average degree,’ whether they were perceived as representing stylised bird wings or air force badges.

15 Fifth, in applying the principle of the interdependence of all the factors to be taken into consideration, the Board of Appeal concluded that there was a likelihood of confusion. In those circumstances, it found that it was not necessary to rule on the parties’ claims relating to Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001). In any event, it found that the conditions for the application of that provision were not satisfied.

18 In view of the date of submission of the application for registration at issue, that is to say, 3 February 2017, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009, as amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21), which entered into force on 23 March 2016 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). Moreover, since, in accordance with settled case-law, procedural rules are generally deemed to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001.

19 Accordingly, in this case, with regard to the substantive rules, the references made by the Board of Appeal, in the contested decision, and by the parties, in their arguments, to Article 8(1)(b) and Article 8(5) of Regulation 2017/1001 must be understood as referring to Article 8(1)(b) and Article 8(5) of Regulation No 207/2009, which are identical in content.

20 In support of its action, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001, read in conjunction with Article 72(2) of that regulation. According to the applicant, the statement of reasons for the contested decision and the conclusions drawn from it were ‘manifestly [materially] flawed’. It submits that, if the Board of Appeal had correctly assessed the facts and applied the law, it would have ruled out any likelihood of confusion in the case of the earlier mark, the distinctive character of which was only average, taking into account the low degree of similarity between the marks at issue. It further submits that previous decisions of the Boards of Appeal of EUIPO and judgments of the General Court support that position.

21 The applicant does not dispute the finding that the goods at issue were identical. However, according to the applicant, the Board of Appeal erred in finding that the differences between the signs were insufficient to mitigate a likelihood of confusion. The applicant submits that the Board of Appeal’s analysis means that trade mark law applicable in the European Union confers separate protection on mottos or concepts, which is manifestly incorrect. According to the applicant, a finding of conceptual similarity would require the earlier mark to have a particularly distinctive character, either per se or because of its reputation with the public.

22 The applicant claims that there are significant visual differences both in the stylised shapes of the parts of the marks at issue representing wings and in their centrepieces. Furthermore, according to the applicant, contrary to the assessments of the Board of Appeal, the stripes forming the mark applied for do not represent wings. Moreover, it is difficult to understand why the Board of Appeal disputes the existence of a three-dimensional effect in the mark applied for and why, however, it perceives such an effect in the centrepiece of the earlier mark.

23 The applicant submits that it is not possible to consider that there is an average or high degree of conceptual similarity between the marks on the ground that they allegedly include representations of wings. That similarity does not exist or is very low. According to the applicant, stylised wings of different types and shapes have long been used in connection with many goods or services, in particular with watches. Thus, such a pattern is entirely common and cannot be monopolised by the intervener in connection with the goods at issue.

24 EUIPO and the intervener dispute the applicant’s claims in so far as they are critical of the Board of Appeal’s approach.

25 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.

26 In accordance with settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or, where appropriate, from economically linked undertakings constitutes a likelihood of confusion. In accordance with the same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services 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, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

27 For the purposes of that global assessment, the average consumer of the category of goods or services concerned is deemed to be reasonably well informed and reasonably observant and circumspect. Account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but has to place his trust in the imperfect image of them that he has retained in his mind. 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 9 July 2003, GIORGIO BEVERLY HILLS, T‑162/01, EU:T:2003:199, paragraph 33 and the case-law cited).

28 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two 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, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

29 In addition, the more distinctive the earlier mark, the greater will be the likelihood of confusion. Thus, marks with a highly distinctive character, either inherently or because of the reputation they possess on the market, enjoy broader protection than marks with a less distinctive character. The distinctive character of the earlier trade mark and, in particular, its reputation, must therefore be taken into account when assessing whether there exists a likelihood of confusion (see judgments of 17 April 2008, Ferrero Deutschland v OHIM, C‑108/07 P, not published, EU:C:2008:234, paragraphs 32 and 33 and the case-law cited, and of 28 October 2010, Farmeco v OHIM – Allergan (BOTUMAX), T‑131/09, not published, EU:T:2010:458, paragraph 67).

30 Lastly, it must be borne in mind that, in order for registration of an EU trade mark to be refused, it suffices that a relative ground for refusal for the purposes of 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, 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).

31 In the light of the principles set out in paragraphs 25 to 30 above, it is necessary, in this case, to examine the applicant’s single plea in law.

32 As the Board of Appeal found in paragraphs 20 to 36 of the contested decision, which finding is not disputed by the parties, the inherent distinctiveness of the earlier mark must be regarded as average.

33 Since the earlier mark is an EU trade mark, it is necessary to assess whether there is a likelihood of confusion from the point of view of the relevant public in all the Member States. In the absence of any word element that may be pronounced in the marks at issue, that assessment is independent of the linguistic variations in the European Union.

34 It must be borne in mind that, in accordance with the case-law, the relevant public consists of consumers who are likely to use both the goods protected by the earlier mark and the goods referred to in the trade mark application (see judgment of 30 September 2010, PVS v OHIM – MeDiTA Medizinische Kurierdienst (medidata), T‑270/09, not published, EU:T:2010:419, paragraph 28 and the case-law cited). Furthermore, it should be borne in mind that it follows from the case-law that an examination of the grounds for refusal must be carried out in relation to each of the goods for which trade mark registration is sought (see, to that effect, judgment of 15 February 2007, BVBA Management, Training en Consultancy, C‑239/05, EU:C:2007:99, paragraph 34).

35 In this case, as is apparent from paragraphs 37 to 39 of the contested decision, having regard to the goods at issue, ‘watches and chronometric instruments’, on the one hand, and ‘horological and chronometric instruments’, on the other, the relevant public consists of both the general public and professional consumers. With regard to the level of attention of that public, the Board of Appeal was right to state that it ‘varies from average to higher than average,’ while noting that that did not reflect only the consideration that might be applied by the general public, as opposed to the professional consumers, but also the price differential to which the goods at issue were subject. The Board of Appeal rightly relied on paragraphs 33 and 34 of the judgment of 12 February 2015, Compagnie des montres Longines, Francillon v OHIM – Cheng (B) (T‑505/12, EU:T:2015:95), referring to the fact that certain goods in the categories of ‘watches’ or ‘horological instruments’ may be purchased without consumers even paying particular attention to them, in particular when they are ‘inexpensive’ goods.

36 Thus, there is no reason to call into question those definitions of the relevant public and its level of attention provided by the Board of Appeal, which, moreover, are not disputed by the parties.

37 In this case, in paragraph 40 of the contested decision, the Board of Appeal stated, in essence, that the goods protected by the earlier mark in Class 14 were defined more broadly than the goods in that class covered by the mark applied for, which were included in that general description. Consequently, those goods were regarded as identical. There is no reason to call that finding into question, which, moreover, is not disputed by the parties.

38 For the purposes of Article 8(1)(b) of Regulation No 207/2009, two marks are similar when, from the point of view of the public concerned, they are at least partially identical with regard to one or more relevant aspects (see, to that effect, judgment of 25 November 2003, Oriental Kitchen v OHIM – Mou Dybfrost (KIAP MOU), T‑286/02, EU:T:2003:311, paragraph 38 and the case-law cited).

39 The global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, 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 appreciation of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35).

40 Assessment of the similarity between two marks cannot be limited to taking only 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. 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. That could be the case, in particular, where that component is capable alone of dominating the image of that mark which members of the relevant public keep in their minds, such that all the other components are negligible in the overall impression created by that mark (see judgment of 12 November 2008, Shaker v OHIM – Limiñana y Botella (Limoncello della Costiera Amalfitana shaker), T‑7/04, EU:T:2008:481, paragraph 40 and the case-law cited).

41 In this case, in the first place, visually, it must be held that the mark applied for might be perceived by some of the relevant consumers, in particular those with a high level of attention, as consisting of a combination of multiple independent devices. However, in the case of consumers who are members of the general public and have an average level of attention when purchasing the goods at issue, who do not analyse the marks in detail and who have only an imperfect recollection of them, it is more likely that they will perceive that mark as a single sign, in the form of a particular geometric representation divided by lines and placed at the centre of stylised extended wings.

42 The earlier mark will be perceived by the majority of relevant consumers as consisting of a central geometric element divided by lines and surrounded by extended wings, the stylisation of which differs somewhat, in particular on account of their thinness, from that of the wings in the mark applied for.

43 The Board of Appeal was right to find, in paragraph 44 of the contested decision, by referring to the respective central elements and the stylised wings, that the marks at issue shared a certain degree of visual similarity, although not high. If consumers were to carry out a comparison of the signs placed next to each other, they would notice differences, as the Board of Appeal found, including those relating to the stylisation of the ‘feathering,’ the contrast between the colours in the respective central elements and their shape, or even the gap between the various devices making up the mark applied for. Account should, however, be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but has to place his trust in the imperfect image of them that he has retained in his mind (see paragraph 27 above).

44 As the Board of Appeal stated in paragraph 45 of the contested decision, the two marks at issue have in common the fact that they contain, as a central element, a shape divided by intersecting lines. Furthermore, while it is true that some consumers might, as the applicant submits, perceive the three-dimensional effect in the central element of the mark applied for, it must be stated that those consumers would then also be able to identify that same effect in the earlier mark, which would contribute more closely to a connection between them. The respective central elements refer those consumers to the image of a three-dimensional pyramid, irrespective of the fact that it has a triangular base in the former and a rectangular one in the latter.

45 Contrary to the applicant’s claims, first, the fact that the central elements of the marks at issue differ with regard the prevalence of the colours black and white does not alter the finding that they are indeed elements that present the similarities referred to in paragraph 44 above.

46 Second, although some of the relevant consumers might perceive in the central element of the earlier mark the pattern of an ‘hourglass,’ it has not been shown that that would be the approach adopted by a great number of consumers or that that would preclude other consumers from perceiving the three-dimensional effect referring to a pyramid or simply remembering an indistinct geometric element, divided by lines and without any other meaning.

47 Third, contrary to the applicant’s claims, with regard to the six other elements making up the mark applied for, consisting of black outlines made up of horizontal lines attached at their ends, it is difficult not to perceive them as extended wings. The applicant itself lacks consistency in that regard, since it refers, in some places in the application, to the elements in question as being wings, while submitting, in other parts of that application, that it was not in any case a representation of wings or of a feathering.

48 Fourth, with regard to the applicant’s other claims concerning the existence of additional visual differences between the marks, such as the fact that each of the six stripes making up the mark applied for ends in a curved line, that its central element gives the impression of flying or, alternatively, that the earlier mark had a design drawn with delicacy, they are part of a detailed analysis which consumers, at least those with an average level of attention, would not make when purchasing the goods in question. On the contrary, as EUIPO and the intervener submit before the Court, what they memorise is the aspect consisting of wings represented by a black outline which, in each of the marks at issue, are almost the same length in relation to the central element. The consumer also notes that those wings are represented by superimposed horizontal strips, the length of which increases from the bottom to the top.

49 Fifth and lastly, contrary to the applicant’s allegations (see paragraphs 21 and 23 above), it is not apparent from the statement of reasons for the contested decision that the Board of Appeal merely carried out an assessment limited to taking into account a ‘generic concept of extended wings’. On the contrary, after analysis of the part of the contested decision relating to the visual comparison, it is already possible to conclude that the Board of Appeal carried out a meticulous and concrete evaluation of the signs at issue.

50 In those circumstances, it will be necessary to take into account a low degree of visual similarity between the marks at issue, since those similarities outweigh the differences, as the Board of Appeal found in paragraph 46 of the contested decision.

51 In the second place, with regard to the phonetic comparison of the marks at issue, the Board of Appeal was right to exclude it, in paragraph 43 of the contested decision, on the ground of their purely figurative nature. The Board of Appeal rightly stated that it was unlikely that consumers would identify and pronounce the letters ‘x’ or ‘y’ in their respective central parts.

52 In the third place, conceptually, the Board of Appeal also rightly noted, in paragraph 47 of the contested decision, that the signs at issue share the highly stylised depiction of the extended wings which may be regarded as a generic depiction of bird wings or which may also be perceived as a type of army aviator or air force badge. The Board of Appeal rightly noted, as elements of connection, the highly stylised nature of the representations and the presence of elements, being geometric in character, constructed for the most part from straight lines. Nor did it err in finding, in paragraph 48 of the contested decision, that most consumers would not establish a link with the concept of ‘time’, with regard to the central element of the earlier mark, since, in the absence of prior specific information on that point, they would not identify that it constitutes the stylised image of an ‘hourglass’.

53 The applicant’s other claims do not invalidate the findings referred to in paragraph 52 above.

54 First, with regard to the claim that, in order to establish conceptual similarity between marks, the earlier mark must have a particularly distinctive character, either per se or because of its reputation with the public (see paragraph 21 above), it does not find support in the judgment of 11 November 1997, SABEL (C‑251/95, EU:C:1997:528), to which the applicant referred before the Court, highlighting in particular its paragraphs 24 and 25. Paragraph 24 of that judgment states only the specific circumstances in which a conceptual similarity resulting from the fact that the images which constitute the marks compared are analogous in their semantic content may create, on their own, a likelihood of confusion. It is in that context that the reference to the particularly distinctive character of the earlier mark was made. Next, in paragraph 25 of that judgment, it is merely stated that such circumstances were not present, since the earlier mark did not enjoy a particular reputation and contained few imaginative elements.

55 By contrast, in this case, the Board of Appeal carried out an analysis of conceptual similarity, which, in accordance with settled case-law (see paragraphs 38 and 39 above), is required from the moment at which at least one of the marks at issue presents a concept perceptible by the relevant public. Furthermore, it should be noted that, unlike the case which gave rise to the judgment of 11 November 1997, SABEL (C‑251/95, EU:C:1997:528), it also relied, in the assessment of the likelihood of confusion, on the visual similarities between the marks at issue.

56 Second, as to the applicant’s argument that stylised wings have long been used in connection with watches, with the result that such a common pattern cannot be monopolised (see paragraph 23 above), it must be held that the issue in this case is not whether to grant such a monopoly but to assess specifically whether there are similarities and a likelihood of confusion between the marks at issue. The Board of Appeal rightly referred to the similarities in their structure, appearance and stylisation, pointing out that they resembled an army aviator or air force badge. By contrast, the examples of marks put forward by the applicant always included additional word elements. Furthermore, if it were to be held that the applicant’s objective was to allege, by its claim, a reduction in the distinctiveness of the earlier mark, it must be held that that approach would be inconsistent with the fact that it expressly agreed with the Board of Appeal’s assessment of an average degree of distinctiveness (see paragraph 32 above).

57 Third, since the applicant attempts to base its conceptual claims on the judgment of 12 February 2015, Compagnie des montres Longines, Francillon v OHIM – Staccata (QUARTODIMIGLIO QM) (T‑76/13, not published, EU:T:2015:94), it should be noted that, in the case which gave rise to that judgment, the difference in the stylisation of the wings in the mark applied for as against the earlier mark was much more pronounced than in the present case. Moreover, in the case cited, unlike the present case, the structure of the two marks compared was not particularly similar, since the mark applied for, on the one hand, contained, at its centre, the letters ‘q’ and ‘m’ instead of a purely geometric element and, on the other, included an additional word element, ‘quartodimiglio’. It is therefore not possible to draw analogies as to the degree of conceptual similarity, or indeed visual similarity, if that had also been the applicant’s intention.

58 Accordingly, it must be held that, contrary to the applicant’s claims, the Board of Appeal rightly stated that the marks at issue were conceptually similar to at least an average degree.

59 As is apparent from paragraphs 50 to 58 of the contested decision, first, the Board of Appeal relied in its assessment of the likelihood of confusion, in essence, on the fact that consumers who had to rely on the imperfect impression that they had kept in their mind did not retain the differences between the marks at issue. Second, it took account of the fact that the marks shared undeniable similarities in terms of their form, the positioning of the various elements, and their outlines and from the point of view of the general concept conveyed. Third, it found that the goods at issue were identical. Fourth, it stated that it could not be ruled out that the existence of the earlier mark may have created an association, in the minds of the relevant public, between the device and the goods marketed by its owner and, consequently, that the mark applied for might well be perceived as its variant. Accordingly, the relevant public might think that the origin of the goods marketed under the mark applied for is the same as that of identical goods marketed under the earlier mark or that there is an economic link between the various undertakings which market them. Fifth, the Board of Appeal disregarded the relevance of the particular circumstances of the marketing of the goods in question. In those circumstances, the Board of Appeal found that the differences between the marks at issue were insufficient to mitigate a likelihood of confusion.

60 It must be stated that none of the applicant’s claims put forward before the Court invalidates the assertions of the Board of Appeal, summarised in paragraph 59 above.

61 In the first place, contrary to the applicant’s claims, the approach of the Board of Appeal is not inconsistent with that adopted by the Court in the case which gave rise to the judgment of 12 February 2015, B (T‑505/12, EU:T:2015:95). On the one hand, the mark applied for in that case consisted of a sign which, in addition to extended wings in the colours white and black, contained a letter ‘b’ at the centre, reinforcing the visual difference as against the earlier mark. On the other, as is clear from paragraphs 44, 81 and 83 of that judgment, it was solely on the basis of a comparison of the goods in question, in respect of which any similarity was excluded, that the Board of Appeal found that there was no likelihood of confusion. Next, the General Court examined in particular, again in that judgment, that question of lack of similarity between the goods (judgment of 12 February 2015, B, T‑505/12, EU:T:2015:95, paragraphs 81 to 88). Thus, it is not possible to draw any analogy from that judgment in relation to the present case.

62 In the second place, contrary to the applicant’s claims, the decision adopted by the Board of Appeal in this case with regard to the likelihood of confusion is not inconsistent either with that adopted in the case that gave rise to the judgment of 12 February 2015, QUARTODIMIGLIO QM (T‑76/13, not published, EU:T:2015:94). It is sufficient to recall that, as stated in paragraph 57 above, the mark applied for which was the subject of the abovementioned proceedings was a composite mark which included, at the centre of the image of smaller extended wings, the letters ‘q’ and ‘m’ and the word element ‘quartodimiglio’ at the top of the sign. Thus, the decision reached in that judgment cannot be directly transposed to the present case.

63 In the third place, nor is the finding of the Board of Appeal invalidated by the decision adopted by the Bundespatentgericht (Federal Patent Court, Germany) in its judgment of 6 November 2019, relating to opposition proceedings concerning the application for registration of the mark numbered 302016024973. Admittedly, as the applicant submits in its letter to the General Court of 18 December 2019, that judgment concerned signs identical to those at issue in the present case and it was held therein that there was no likelihood of confusion.

64 However, first, it must be stated that it is clear from settled case-law that national decisions on registrations in the Member States and, by analogy, those cancelling or refusing registration, are only factors which may be taken into consideration, without being given decisive weight, in the registration of an EU trade mark. The same considerations apply to the case-law of the courts of the Member States (see, to that effect, judgments of 16 February 2000, Procter & Gamble v OHIM (Shape of a soap), T‑122/99, EU:T:2000:39, paragraph 61, and of 19 September 2001, Henkel v OHIM (Round red and white tablet), T‑337/99, EU:T:2001:221, paragraph 58). That case-law, which was established in the context of the absolute grounds for refusal, is applicable, by analogy, in respect of the relative grounds for refusal of registration (judgment of 12 February 2015, B, T‑505/12, EU:T:2015:95, paragraph 86).

65 Second, it should be noted that, in its judgment of 6 November 2019, the Bundespatentgericht (Federal Patent Court) took account of a high level of attention of the relevant public, although, in the present case, the Board of Appeal found that the level of attention of the public varied from ‘average to higher than average’. That definition of the level of attention has not been disputed by the parties (see paragraph 35 above). That is a decisive factor in the assessment of the likelihood of confusion in the present case. As has already been noted (see paragraphs 41 and 48 above), it is, in particular, consumers whose level of attention is only average who might keep in memory a vague image of the marks at issue, without perceiving the differences noticed in a detailed examination.

66 In the fourth place, with regard to the applicant’s various claims relating to the analyses of previous decisions of EUIPO by the Board of Appeal, it is sufficient to note, first, that that Board of Appeal rightly stated, in paragraphs 56 to 58 of the contested decision, the reasons for its decision to follow some of those decisions. It stated, inter alia, that they related, as in this case, to marks with similarities in their structure, appearance, stylisation and concept, with a device at the centre of stylised extended wings. That concerns, in particular, the earlier decisions of EUIPO to which the applicant refers in paragraph 38 of its application (the decision of the Fifth Board of Appeal of EUIPO of 31 July 2015 (Case R 2060/2014‑5) concerning the mark numbered 011979424 and the decision of the Second Board of Appeal of EUIPO of 10 July 2014 (Case R 1636/2013‑2) relating to the mark numbered 010541291), which, contrary to the applicant’s claims, did in fact concern marks with a structure, appearance and concept comparable to those of the marks at issue in this case.

67 Second, by contrast, the Board of Appeal also rightly pointed out the differences between this case and other, previous decisions of EUIPO, in particular where they concerned the comparison between marks with no similar structure or which included word elements or additional letters or, alternatively, which had a diametrically different style (the decision of the First Board of Appeal of EUIPO of 25 February 2016 (Case R 1158/2015‑1) relating to the mark numbered 013063946 and the decision of the Fifth Board of Appeal of EUIPO of 7 July 2015 (Case R 2598/2014‑5) relating to the mark numbered 011778727). The applicant’s claims, set out in paragraphs 41 to 43 of the application, concerning those previous decisions of EUIPO must also be rejected. Accordingly, the Board of Appeal’s analysis is free of errors, including with regard to the taking into consideration of EUIPO’s previous decision-making practice. Moreover, contrary to the applicant’s claims, it must be held that, both in that regard and as a whole, the statement of reasons for the contested decision satisfies the requirements laid down in the case-law (judgment of 15 November 2011, Abbott Laboratories v OHIM (RESTORE), T‑363/10, not published, EU:T:2011:662, paragraphs 67 and 73).

68 Lastly, in the fifth place, with regard to the admissibility of the applicant’s general references to its pleadings submitted during the administrative procedure before EUIPO, they cannot be taken into consideration, in accordance with Article 177 of the Rules of Procedure of the General Court and the applicable case-law. The application must contain the pleas in law and arguments relied on, and a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the action, if necessary without any other supporting information. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the provision referred to, must appear in the application (see judgment of 8 May 2014, Simca Europe v OHIM – PSA Peugeot Citroën (Simca), T‑327/12, EU:T:2014:240, paragraphs 28 and 29 and the case-law cited). In this case, since the applicant does not identify either the specific points of the application which it wishes to supplement by that general reference or the annexes in which any specific arguments are allegedly set out, the Court is not required to seek, on the whole, in the abovementioned pleadings submitted to EUIPO, the arguments to which the applicant might be referring or to examine them, since such arguments are inadmissible.

69 In the light of all the foregoing, the applicant’s single plea in law, alleging infringement of Article 72(2) and Article 8(1)(b) of Regulation 2017/1001, must be rejected. Accordingly, the action must also be dismissed in its entirety.

70 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

71 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO 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) >> Point Tec Products v EUIPO - Longines, Francillon (Representation de deux ailes deployees autour d'un triangle) (EU trade mark - Judgment) [2021] EUECJ T-615/19 (28 April 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T61519.html Cite as: EU:T:2021:224, ECLI:EU:T:2021:224, [2021] EUECJ T-615/19

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