credentis v OHMI - Aldi Karlslunde (Curodont) (Judgment) [2016] EUECJ T-53/15 (10 March 2016)

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(Community trade mark — Opposition proceedings — Application for Community word mark ‘Curodont’ — Earlier national word mark ‘Eurodont’ — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

credentis AG, established in Windisch (Switzerland), represented by D. Breuer, lawyer,

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral and J. Ivanauskas, acting as Agents,

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

Aldi Karlslunde K/S, established in Karslunde (Denmark), represented by N. Lützenrath, U. Rademacher, C. Fürsen and N. Bertram, lawyers,

ACTION against the decision of the First Board of Appeal of OHIM of 13 November 2014 (Case R 353/2014-1), relating to opposition proceedings between Aldi Karlslunde K/S and credentis AG,

composed of M. van der Woude, President, I. Wiszniewska-Białecka and I. Ulloa Rubio (Rapporteur), Judges,

having regard to the application lodged at the Registry of the General Court on 28 January 2015,

having regard to the response of OHIM lodged at the Registry of the General Court on 24 April 2015,

having regard to the response of the intervener lodged at the Registry of the General Court on 4 May 2015,

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 part of the procedure, and having therefore decided, acting upon a report of the Judge-Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the General Court of 2 May 1991,

1 On 12 October 2011, the applicant, credentis AG, 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 and services in respect of which registration was sought are in, inter alia, Classes 3 and 44 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: ‘Cleaning and polishing preparations for use in dental technology and dental practices; Dentifrices, Mouthwashes, Cosmetics’;

4 The Community trade mark application was published in Community Trade Marks Bulletin No 216/2011 of 15 November 2011.

5 On 9 February 2012, the intervener, Aldi Karlslunde K/S, 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 and services referred to in paragraph 3 above.

6 The opposition was founded on the earlier Danish word mark ‘Eurodont’, filed on 3 January 1994 and registered on 9 September 1994 under Number VR 199406075 for goods in Class 3 corresponding to the following description: ‘Mouth washes and dentifrices, not for medical purposes, in particular tooth pastes and mouth washes’.

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 On 29 November 2013, the Opposition Division rejected the opposition on the ground that there was no likelihood of confusion.

9 On 28 January 2014, the intervener 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 13 November 2014 (‘the contested decision’), the First Board of Appeal of OHIM upheld the appeal and annulled the decision of the Opposition Division. First, it found that the goods and services concerned were identical or similar. Second, it found that, having regard to the fact that the sign applied for reproduced a significant part of the earlier sign, to the visual and phonetic similarities of the signs at issue, to the absence of any clear conceptual difference between the signs at issue, and to the average distinctiveness of the earlier trade mark, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

13 In support of its action, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

14 Under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for may not be registered if, because it is identical or similar to an earlier trade mark and because the goods or services covered by the trade marks are identical or similar, 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.

15 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. According to 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 the 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 designated (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).

16 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 goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree 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).

17 Since the trade mark on which the opposition is based is a Danish trade mark, the territory in regard to which the likelihood of confusion must be assessed is Denmark, as the Board of Appeal found, without that finding being contested by the parties.

18 The applicant disputes the Board of Appeal’s assessment that the relevant public consists solely of average consumers having an average level of attention. It submits that, in so far as dentifrices, mouth washes and cleaning and polishing preparations for use in dental technology and in dental surgeries are intended to be used by professionals, the relevant public consists of professionals having a high level of attention.

19 OHIM and the intervener submit that the relevant public in respect of the goods and services at issue consists both of professionals having a high level of attention and of average consumers having an average degree of attention.

20 In the present case, the Board of Appeal correctly found that the relevant public in respect of dentifrices, mouth washes and cosmetics, falling under Class 3, of hygienic care services for human beings, falling under Class 44, covered by the trade mark application, and of mouth washes and dentifrices, not for medical purposes, falling under Class 3, covered by the earlier trade mark, was composed of average consumers having an average level of attention. It is clear that the goods in question are everyday consumer goods which, in general, are relatively inexpensive. Accordingly, for such goods, the attention of the relevant public cannot be considered to be greater than that which that public would demonstrate with regard to other everyday consumer goods (see, to that effect, judgment of 15 July 2011 in Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO), T‑220/09, EU:T:2011:392, paragraph 19 and the case-law cited).

21 However, the relevant public is composed not solely of average consumers but also of professionals whose level of attention is high with regard to the cleaning and polishing preparations for use in dental technology and in dental surgeries that are covered by the mark applied for.

22 That said, as regards the assessment of the likelihood of confusion, it is the public having the lower level of attention that must be taken into account (see judgment in ERGO, cited in paragraph 20 above, EU:T:2011:392, paragraph 21 and the case-law cited).

23 It follows that, notwithstanding the possibility that part of the relevant public has a higher level of attention, the Board of Appeal acted correctly in law in finding that the relevant public in regard to which the likelihood of confusion between the signs at issue had to be assessed was composed of average consumers with an average level of attention.

24 According to settled case-law, in assessing the similarity of the goods or services concerned, all the relevant factors pertaining to the relationship between 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).

25 The applicant does not dispute that the dentifrices and mouth washes covered by the mark applied for are identical to the mouth washes and dentifrices, not for medical purposes, covered by the earlier mark. However, it submits that the Board of Appeal erred in finding that the cleaning and polishing preparations for use in dental technology and in dental surgeries form a vast category covering dentifrices and mouth washes and that they are therefore identical to the latter goods. In that regard, it submits that they do not share the same distribution channels. The applicant also disputes the Board of Appeal’s finding that cosmetics are identical to dentifrices and mouth washes. Lastly, the applicant takes issue with the Board of Appeal’s finding that the goods in Class 3 covered by the earlier mark and the services in Class 44 covered by the mark applied for are complementary and therefore similar.

27 In the first place, it should be noted that cleaning and polishing preparations for use in dental technology and in dental surgeries have the same function as dentifrices and mouth washes, not for medical purposes, namely that of ensuring dental hygiene and healthy teeth. The fact, relied on by the applicant, that they do not share the same distribution channels does not suffice, even supposing it to be true, to weaken what is at least a very high degree of similarity between those goods.

28 In the second place, the applicant correctly submits that dentifrices and mouth washes cannot be regarded as identical to cosmetics and that the reasoning of the Board of Appeal is erroneous in that regard. Cosmetics are not regarded as a general category including dentifrices and mouth washes within the meaning of the Nice Classification. None the less, dentifrices, mouth washes and cosmetics may be regarded as similar in so far as they are intended for daily bodily care. Therefore, those goods must be regarded as being similar.

29 In the third place, as regards the complementary nature of the goods and services at issue, it should be noted that goods or services which have a close connection are complementary, in the sense that one is indispensable to, or important for, the use of the other in such a way that consumers may think that the responsibility for the production of those goods or the provision of those services lies with the same undertaking. By definition, goods or services intended for different publics cannot be complementary (see judgment of 22 January 2009 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraphs 57 and 58 and the case-law cited).

30 In that regard, it should be noted, as did the Board of Appeal, that there is a certain relationship of complementarity between the goods in Class 3 covered by the earlier trade mark and the services in Class 44 covered by the trade mark applied for. Those goods and services share the same overall purpose, namely hygiene and beauty care. Hygiene care for human beings forms a vast category aiming at washing and purifying the human body. Similarly, dentifrices and mouth washes are intended to be brought into contact with the human body, particularly with the mouth, in order to cleanse, freshen, protect or maintain it in good condition. Furthermore, the wording used to identify hygiene care services is very broad and includes mouth care, scaling, whitening of the teeth or dental care, which require the use of dentifrices and mouth washes for those purposes, with the result that the goods and services at issue may be regarded as complementary. The Board of Appeal’s finding that the goods and services at issue are complementary, and thus similar, must therefore be upheld.

31 It follows from the foregoing that the goods and services at issue are identical or similar.

32 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by those signs, bearing in mind, inter alia, their distinctive and dominant components. The perception of marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse 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).

34 The applicant disputes that assessment, contending that the ‘euro’ component of the earlier mark is not irrelevant for the assessment of similarity since it is placed at the beginning of the sign. The beginning of signs, it submits, is, in principle, the part most likely to attract the relevant public’s attention.

35 The earlier sign and the sign applied for are both composed of eight letters, of which seven are identical and in the same order, the only difference between the signs being the respective first letters, namely a ‘c’ for the sign applied for and an ‘e’ for the earlier sign. In that regard, it is true, as the applicant submits, that the initial part of word marks may be capable of attracting the attention of the consumer more than the following parts (judgments of 17 March 2004 in El Corte Inglés v OHIM — González Cabello and Iberia Líneas Aéreas de España (MUNDICOR), T‑183/02 and T‑184/02, ECR, EU:T:2004:79, paragraph 81, and of 16 March 2005 in L’Oreal v OHIM — Revlon (FLEXI AIR), T‑112/03, ECR, EU:T:2005:102, paragraphs 64 and 65). However, that consideration cannot prevail in every case (judgment of 6 July 2004 in Grupo El Prado Cervera v OHIM — Heirs of Debuschewitz (CHUFAFIT), T‑117/02, ECR, EU:T:2004:208, paragraph 48) and cannot, in any event, call into question the principle that the assessment of the similarity of the signs must take account of the overall impression given by them. In the present case, the sole difference of one letter between the signs at issue cannot cancel out the similarity between them.

36 In the light of those considerations, the Board of Appeal was fully entitled to find that the signs at issue were visually similar.

38 The applicant submits that the pronunciation of the signs at issue is identical only with regard to the syllable ‘dont’. It claims that the pronunciation differs clearly in the sound formed by the initial syllables ‘curo’ of the sign applied for and ‘euro’ of the earlier sign.

39 It must be held that the signs at issue have the same number of syllables and that their second and third syllables are identical. The only difference between the signs at issue lies in their initial syllable and follows from the difference in their initial letter. It must be held that such a limited difference is not sufficient to weaken the degree of overall phonetic similarity between the signs at issue.

40 The Board of Appeal was therefore fully entitled to find that the signs at issue were phonetically similar.

41 The Board of Appeal found that neither of the two signs at issue, considered as a whole, had a specific meaning and that there was therefore no clear conceptual difference between them.

42 The applicant submits that, although the earlier sign does not, as such, correspond to any word in the relevant European languages, it has a certain evocative force in that its initial part ‘euro’ is suggestive of the idea of ‘Europe’, of the ‘European Union’ or even of the single currency ‘euro’, and that this evocative force of the earlier mark is sufficient to justify the finding that there is a conceptual difference between the signs at issue. Moreover, the applicant claims that the sign applied for also has an evocative force that distinguishes it from the earlier sign. It claims, in particular, that the initial part ‘curo’ is suggestive of curative treatments or healing in some of the relevant languages, such as English, since such an evocative effect is, in addition, related to the goods covered by the registration of the earlier mark.

43 The signs at issue are composed of terms which, taken as a whole, have no known meaning. Taken as a whole, neither of the two signs has any everyday meaning in Danish.

44 Even if the component ‘euro’ may have a certain suggestive force and refer to ‘Europe’, the ‘European Union’ or the single currency ‘euro’, that component constitutes only the initial part of the earlier sign, whereas conceptual similarity between the signs at issue must be assessed on the basis of the suggestive force that each of the signs, taken as a whole, may be recognised as having. It should be noted that, in the earlier sign, the component ‘euro’ is accompanied by the component ‘dont’ in order to form the word ‘eurodont’, a word which has no meaning in Danish, with the result that that sign, notwithstanding the suggestive force of the component ‘euro’, is ultimately deprived of any particular conceptual force for the relevant public (see, to that effect, judgment in MUNDICOR, cited in paragraph 35 above, EU:T:2004:79, paragraph 90).

45 Furthermore, it should be noted that, in Danish, the term ‘curo’ has no meaning and that it is improbable that the relevant public would make a connection between the beginning of the sign applied for, ‘curo’, and the English word ‘cure’.

46 The Board of Appeal was therefore fully entitled to find that the conceptual comparison of the conflicting signs was irrelevant.

47 Furthermore, according to the case-law, conceptual differences which distinguish the marks at issue may be such as to counteract to a large extent the visual and phonetic similarities existing between those marks. For there to be such a counteraction, however, at least one of the marks at issue must have, from the point of view of the relevant public, a clear and specific meaning so that that public is capable of grasping it immediately, and the other mark must not have such a meaning or must have a totally different meaning (see judgment in MUNDICOR, cited in paragraph 35 above, EU:T:2004:79, paragraph 93 and the case-law cited).

48 In that regard, even if the terms ‘euro’ and, possibly, ‘curo’ are to a certain extent suggestive, the signs Eurodont and Curodont have no meaning in the relevant languages. Accordingly, none of the signs, taken as a whole, can be regarded as having a clear and definite meaning that the public would be capable of grasping immediately within the meaning of the case-law. Therefore, the fact that the initial parts of the signs at issue are suggestive of different concepts is not capable of counteracting the visual and phonetic similarities between those signs.

49 Accordingly, taking into account the fact that the signs at issue are visually and phonetically similar and that it is not possible to compare them conceptually, the Board of Appeal was fully entitled to find that those signs were similar.

50 The global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the marks and the similarity of the goods or services concerned. Thus, 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 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 74).

51 In the present case, the Board of Appeal found that the fact that the sign applied for reproduces a substantial part of the earlier sign leads to the conclusion that a likelihood of confusion cannot be excluded if account is also taken of the fact that the goods and services at issue are partly identical and partly similar.

52 The applicant submits that, since the Board of Appeal erred in finding that the goods and services at issue and the signs at issue were similar, its overall assessment with regard to the likelihood of confusion is also vitiated. Furthermore, the applicant submits that the conceptual differences between the signs at issue are capable of eliminating the visual and phonetic similarities.

53 It must be held that the Board of Appeal did not err in finding that there was a likelihood of confusion. In so far as the relevant public is composed of average consumers having an ordinary level of attention, and in so far as the goods covered by the marks at issue are identical or similar and the signs at issue are similar, the Board of Appeal did not err in finding that there was a likelihood of confusion, even if it incorrectly found that cosmetics were identical, and not similar, to dentifrices and mouth washes.

54 Accordingly, the applicant’s single plea in law must be rejected and the action as a whole must therefore be dismissed.

55 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. 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.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> credentis v OHMI - Aldi Karlslunde (Curodont) (Judgment) [2016] EUECJ T-53/15 (10 March 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T5315.html Cite as: EU:T:2016:136, [2016] EUECJ T-53/15, ECLI:EU:T:2016:136

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