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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Hammarplast v OHMI-Steninge Slott (STENINGE SLOTT) (Intellectual property) [2006] EUECJ T-499/04 (17 October 2006)
URL: http://www.bailii.org/eu/cases/EUECJ/2006/T49904.html
Cite as: [2006] EUECJ T-499/4, [2006] EUECJ T-499/04
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JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)
17 October 2006 (*)
(Community trade mark - Opposition proceedings - Application for Community word mark STENINGE SLOTT - Earlier word mark STENINGE KERAMIK - Likelihood of confusion)
In Case T-499/04,
Hammarplast AB, established in Tingsryd (Sweden), represented by R. Almaraz Palmero, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance, being
Steninge Slott AB, established in Märast (Sweden), represented by M. Björkenfeldt, lawyer,
ACTION brought against the decision of the Second Board of Appeal of OHIM of 25 October 2004 (Case R 394/2003-2) concerning the opposition filed by the holder of the national trade mark STENINGE KERAMIK against registration of the Community trade mark STENINGE SLOTT,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of J. Pirrung, President, N.J. Forwood and S. Papasavvas, Judges,
Registrar: J. Plingers, Administrator,
further to the hearing on 21 March 2006,
gives the following
Judgment
Background to the dispute
1 On 5 January 2000, Steninge Slott AB, intervener in the present action (hereafter 'the intervener'), filed an application for a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended.
2 The mark in respect of which registration was sought is the word mark STENINGE SLOTT.
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: 'Design products of glass, crystal and porcelain for household and indoor decoration'.
4 On 14 November 2000, Hammarplast AB, applicant in the present action (hereinafter 'the applicant'), filed a notice of opposition against the trade mark sought in respect of all the goods covered by that mark, on the basis of its earlier Swedish word mark No 209 251 STENINGE KERAMIK for the goods in Class 21 corresponding to the following description: 'Flowerpots made of ceramics, including both outer as well as inner pots'.
5 By decision of 24 April 2003, the Opposition Division of OHIM upheld the opposition.
6 On 18 June 2003 the intervener filed an appeal against this decision in which it limited the list of goods covered by the mark applied for to the following: 'design products of glass and crystal for household and indoor decoration'. This limitation thus sought to exclude porcelain goods from the list of products covered.
7 By decision of 25 October 2004 (Case R 394/2003-2, hereinafter 'the contested decision') the Second Board of Appeal of OHIM took note of the reduction in the list of goods in the notice of appeal, allowed the appeal and rejected the opposition. In essence, the Board of Appeal considered that, taking into account the low degree of similarity between the goods covered by the opposing trade marks, the visual, phonetic and conceptual differences between the signs meant that there was no likelihood of confusion on the part of the average Swedish consumer between the marks.
Procedure and forms of order sought by the parties
8 By application lodged at the Registry of the Court on 23 December 2004, the applicant brought the present action. OHIM and the intervener lodged their responses on 5 and 20 April 2005 respectively.
9 Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure and, under the measures of organisation of procedure laid down in Article 64 of the Court's Rules of Procedure, put to OHIM in writing the question as to the exact legal status of the reduction in the list of products covered by the mark applied for, carried out by the intervener in the notice of appeal filed with the Board of Appeal, and appearing in the operative part of the contested decision, inviting it to respond at the hearing (see paragraphs 6 and 7, above).
10 The parties presented oral argument and submitted their replies to the Court's written and oral questions at the hearing on 21 March 2006.
11 At that hearing, the applicant expressly abandoned its second head of claim seeking an order that OHIM refuse registration of the mark applied for; formal notice was taken of this.
12 The applicant claims that the Court should:
- annul the contested decision;
- order OHIM and the intervener to pay the costs of the proceedings before the Court and the Board of Appeal.
13 OHIM and the intervener contend that the Court should:
- dismiss the application;
- order the applicant to pay the costs.
Law
Admissibility
Arguments of the parties
14 OHIM and the intervener submit that the applicant relies for the first time before the Court, first, on the distinctiveness of the earlier mark as a result of its use since 1986, and, second, on an item of evidence consisting of an advertisement for a glass flowerpot. They take the view that these submissions are inadmissible, either because the reliance on the distinctive character acquired constitutes a change to the subject-matter of the proceedings contrary to Article 135(4) of the Rules of Procedure (Case T-57/03 SPAG v OHIM- Dann and Backer (HOOLIGAN) [2005] ECR II-287, paragraphs 30 and 31), or because the evidence was not filed within the time-limit (Case T-112/03 L'Oréal v OHIM- Revlon (FLEXI AIR) [2005] ECR II-949, paragraphs 28 to 33).
15 At the hearing the applicant submitted that the advertisement for a glass flowerpot, annexed to its application, is presented for the purpose of information and that it is not necessary, in any event, to prove a matter of common knowledge such as, in this case, the existence of the flowerpot.
Findings of the Court
16 First, following examination of the case-file submitted in the proceedings before OHIM, it appears that Annex 6 to the application, consisting of an advertisement for a glass flowerpot, was not submitted to OHIM.
17 According to consistent case-law, matters of fact which are relied on before the Court of First Instance without having been submitted previously before any of the bodies of OHIM must be dismissed (see HOOLIGAN, cited in paragraph 14 above, paragraph 20 and the extensive case-law cited therein).
18 It follows that, in the present case, Annex 6 to the application is inadmissible before the Court. On the other hand, there is nothing to prevent the applicant from relying on the fact that, as a matter of common knowledge, flowerpots can be made of glass.
19 Second, it appears, after examination of the case-file submitted in the proceedings before OHIM, that the fact of the distinctive character of the earlier mark resulting from its use was not relied on before OHIM.
20 According to what is now well-established case-law, matters of law relied on before the Court which have not been raised previously before the bodies of OHIM are inadmissible, in so far as a consideration of those matters by those bodies was not compulsory in order to resolve the dispute before them (HOOLIGAN, cited in paragraph 14 above, paragraphs 21 and 22; see also, in this regard, Case T-311/01 Les Éditions Albert René v OHIM - Trucco (Starix) [2003] ECR II-4625, paragraph 72).
21 In that regard, it must be noted that the reliance, in ex parte proceedings as in inter partes proceedings, on the fact of the distinctive character acquired as a result of use is a legal issue which is independent of the issue of the intrinsic distinctive character of the mark in question (HOOLIGAN, cited in paragraph 14 above, paragraph 30 and the case-law cited therein). Therefore, in the absence of reliance, by one of the parties to the proceedings before OHIM, on the distinctiveness acquired by its mark, OHIM is not obliged to consider, of its own motion, the existence of that distinctiveness.
22 It follows that, in the present case, reliance on the distinctive character of the earlier mark resulting from its use is inadmissible before the Court.
Substance
23 The applicant submits that the Board of Appeal infringed Article 8(1)(b) of Regulation No 40/94 in concluding that there was no similarity between the goods covered by the two marks, no similarity between the signs in issue and, consequently, no likelihood of confusion between the marks in question.
24 Under Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of an earlier trade mark, the trade mark is to be refused registration 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 two 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.
25 According to consistent case-law, the likelihood of confusion that the goods or services in question originate from the same undertaking 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 of the factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and the similarity of the designated goods or services (Case T-162/01 Laboratorios RTB v OHIM - Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II-2821, paragraphs 29 to 33 and the case-law cited therein).
26 The Board of Appeal defined the relevant public as the average Swedish consumer (contested decision, paragraphs 16 and 29). This definition is taken up by the applicant. Consequently, this definition is not in dispute and must therefore be adopted.
27 By contrast, the parties disagree on the degree of similarity between the goods as well as on the degree of similarity between the signs in issue, and on the conclusions that should be drawn as to the likelihood of confusion.
The similarity between the goods
- Arguments of the parties
28 The applicant claims that the goods covered by the opposing marks are similar. Contrary to the opinion of the Board of Appeal (paragraph 21 of the contested decision), flowerpots can be made of glass and would then be considered very similar to flowerpots made of ceramics. Flowerpots can be design products of glass, crystal and porcelain and would then be almost identical to design flowerpots made of ceramics destined for household and indoor decoration. These products could be sold in the same sales outlets. All of these goods are in Class 21.
29 OHIM submits that the Board of Appeal's finding that a similarity between the goods exists, but to a low degree, is justified.
30 In response to a question put by the Court, OHIM confirmed at the hearing that the reduction in the list of goods covered by the mark applied for had been carried out lawfully, that is to say, in writing and without reserve, and that this reduction had given rise to a new publication of the application for the mark. In this regard, the reference to porcelain products in paragraph 20 of the contested decision is a clerical error.
31 The intervener maintains that the applicant is wrong in contending that the application for the mark still covers the original definition of the goods, even though the word 'porcelain' has been deleted. Furthermore, there is a considerable difference, from a technical and industrial standpoint, between ceramics or porcelain, on the one hand, and glass or crystal, on the other. Normal flowerpots made of ceramics are mass-produced inexpensive goods, which cannot be compared to the high-quality products sold under the mark applied for.
- Findings of the Court
32 According to consistent case-law, in assessing the similarity of the goods or services concerned, all the relevant factors which characterise the relationship between them should be taken into account. Those factors include, inter alia, their nature, their end users and their method of use and whether they are in competition with each other or are complementary (Case T-346/04 Sadas v OHIM - LTJ Diffusion (ARTHUR ET FELICIE) [2005] ECR II-0000, paragraph 33; see also, by analogy, Case C-39/97 Canon [1998] ECR I-5507, paragraph 23).
33 At the outset, it should be stated that, given OHIM's responses to the Court's questions, the reduction made to the list of goods covered by the mark applied for, as carried out by the intervener in its application to the Board of Appeal, is lawful and final. First, the applicant had direct knowledge of this reduction by reason of service of the notice of appeal. Thus, the rule of audi alteram partem in inter partes proceedings was respected, with the result that the reduction could be used against the applicant. Second, this reduction was acknowledged by the Board of Appeal in the operative part of the contested decision, thus giving the reduction its binding nature. Furthermore, the reduction was published, in accordance with Article 44(1) of Regulation No 40/94, thereby permanently preventing the intervener from relying on the possible registration of its mark in respect of porcelain goods.
34 In that regard, it must be accepted that the Board of Appeal, in referring, in paragraph 20 of the contested decision, to porcelain goods as being among the goods to be compared, committed a simple clerical error. First, its reasoning does not take porcelain goods into account, and, second, the operative part of the contested decision expressly refers to the reduction carried out by the intervener.
35 Regarding more specifically the issue of similarity between the goods in question, in the contested decision, the Board of Appeal held that design products made of glass or crystal intended for household and indoor decoration, on the one hand, and ceramic flowerpots including both outer and inner pots, on the other, had a low degree of similarity. The Board considered that, even though all these goods could be used for decoration, the primary function of flowerpots was to hold plants and that only those flowerpots with a somewhat artistic shape could be used for decoration, in conjunction with plants or flowers. By contrast, the primary function of design products made of glass or crystal was to decorate, without the need to add plants. Furthermore, according to the Board of Appeal, flowerpots made of glass were rare. Finally, the two product categories were generally sold in different sales outlets, or in different sections of large department stores (contested decision, paragraph 21).
36 This reasoning must be upheld. As OHIM rightly points out, the goods in question are different in nature, are intended for different uses, are neither interchangeable nor in competition with each other, and are not complementary. Although they may occasionally have the same end use or be sold through the same distribution channels, these goods are generally purchased for different end uses or sold in different sales outlets. Furthermore, design products are aimed at a public different from that interested in flowerpots, or at a public with different needs.
37 While it cannot be excluded that flowerpots made of glass may exist, this possibility is none the less the exception, and not the rule. That possibility is not such as to outweigh the significant differences between the categories of goods covered by each of the opposing marks.
38 Consequently, the Board of Appeal's assessment that there is a low degree of similarity between the goods in question is well founded.
The signs in issue
- Arguments of the parties
39 In substance, the applicant submits that the word 'Steninge', shared by both marks, is the dominant element of the earlier mark. First, consumers tend to attach more relevance to the beginning of a sign and to remember this. Furthermore, this first element is the dominant element, as evidenced by the practice of the Swedish Patent Office regarding geographical indications. Moreover, the words 'keramik' and 'slott' would be seen as secondary terms, as the word 'keramik' (ceramic) is purely descriptive. Therefore the similar elements outweigh those that are dissimilar.
40 According to the applicant, the Board of Appeal cannot base its decision on vague and unsupported inferences that a Swedish consumer would know or think that the words 'Steninge slott' refer to a specific palace.
41 OHIM states that the relevant territory is Sweden, that the word 'Steninge' refers to a locality in Sweden known for its castle, that the word 'slott' means 'castle' in Swedish, that the word 'keramik' means 'ceramic', and that it is uncontested that the words 'slott' and 'keramik' are entirely dissimilar. The image of the mark applied for, evoking that of a castle in the locality of Steninge, is totally different from the image conjured up by the earlier mark, which evokes that of ceramics from, or linked to, that locality.
42 OHIM submits, in substance, that the common element 'Steninge', as a geographical name, has very limited distinctiveness, if any at all (Joined Cases C-'108/97 and C-109/97 Windsurfing Chiemsee [1999] ECR I-'2779, paragraphs 29 and 30). Consequently, the minimum level of distinctiveness required for registration of the earlier mark lies in the association of the two words making up the mark, and not in the word 'Steninge' alone. The Board of Appeal was entitled to take into account, as a matter of common knowledge, the fact that the word 'Steninge' refers to a geographical location (HOOLIGAN, cited in paragraph 14 above, paragraph 59).
43 The intervener maintains that the trade mark applied for gives the consumer the general impression of a high-class product, because the word 'slott' means palace, and not castle, in Swedish. The palace of Steninge slott dates from the 17th century, has played an important role in Swedish history, and is nowadays a cultural centre. Even if the consumer does not understand this significance, the word 'slott' is completely different from the word 'keramik' in all visual, aural and conceptual respects.
44 According to the intervener, the applicant cannot rely on the fact 'that the Swedish Patent Office is known for their strict practice concerning the geographical indications', in the light of the composition of the Board of Appeal, which comprised the former Head of the Trade Marks Department of that Office, and later Judge at the Swedish Court of Patent Appeals, and a member who had previously served for 17 years as an official at the Court of Justice of the European Communities.
- Findings of the Court
45 As to the similarity of the marks in conflict, according to settled case-law, the global appreciation of the likelihood of confusion, in terms of 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 (Case C-251/95 SABEL [1997] ECR I-6191, paragraph 23, Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 25, and HOOLIGAN, cited in paragraph 14 above, paragraph 54). It is also necessary, in determining the degree of visual, aural and conceptual similarity, to evaluate, where appropriate, the importance to be attached to those different elements, taking account of the category of goods or services in question and the circumstances in which they are marketed (Lloyd Schuhfabrik Meyer, cited above, paragraph 27, and HOOLIGAN, cited in paragraph 14 above, paragraph 54).
46 In the contested decision, the Board of Appeal noted first that 'Steninge' was the name of a geographical location, but without any link to ceramics. Names of geographical locations are capable of being part of a mark, or of becoming marks themselves, but their inherent distinctiveness is usually not high (paragraph 22). In the present case, the signs in issue have a certain degree of visual (paragraph 23) and phonetic (paragraph 24) similarity, as a result of the shared element 'Steninge'. According to the Board of Appeal, the conceptual impression is none the less different: STENINGE KERAMIK evokes the idea of ceramics originating or being sold in a place called Steninge, and STENINGE SLOTT evokes the well-known palace of Steninge (paragraph 25) for a Swedish consumer (paragraph 29). The Board of Appeal does not provide a formal conclusion to its analysis of the signs in issue, but relies on the differences between them to rule on the question of the likelihood of confusion (paragraph 30).
47 It must be noted that the marks in issue share a common element, 'Steninge', which is necessarily identical for both marks, as much from a visual standpoint as from a phonetic or conceptual one. It is common ground that this word refers to a geographical location in Sweden. However, the parties do not agree on the precise significance of this location, depending on whether it is associated with one of the localities bearing that name in Sweden, or with the location of a historical building. These marks also contain an element which is entirely dissimilar, namely the element 'keramik' (ceramic) for the earlier mark, or the element 'slott' (palace; translation not challenged by the applicant) for the mark applied for. Consequently, from a visual, phonetic and conceptual point of view, these marks have similarities and dissimilarities.
48 The parties differ as to the weight to be attributed to each of the elements of the marks in question. According to the applicant, the position of the shared element 'Steninge' at the beginning of its mark and the complete absence of any distinctive character in the second element of its mark ('keramik') render the first element dominant. It follows that the similarities between the opposing marks outweigh the differences between them. By contrast, according to OHIM, the fact that the first element is a geographical denomination renders it indistinctive, or at the most, as stated by the Board of Appeal, of limited distinctiveness, which thus makes it necessary to conduct a global analysis of both words of each trade mark.
49 In that regard, it is necessary to reject the applicant's argument that the Swedish Patent Office would necessarily have recognised the distinctiveness of the 'Steninge' element, at the time of registration of the earlier mark, notwithstanding that Office's 'strict' practice concerning geographical indications, on the ground that the 'keramik' element is exclusively descriptive. First, according to settled case-law, registrations already made in Member States are only factors which may merely be taken into consideration, without being given decisive weight, for the purposes of registering a Community trade mark. It is appropriate to add that there is no provision in Regulation No 40/94 requiring OHIM or, on appeal, the Court to come to the same conclusions as those arrived at by national authorities in similar circumstances (Case C-173/04 P Deutsche SiSi-Werke v OHIM [2006] ECR I-551, paragraph 49, and Case T-106/00 Streamserve v OHIM (STREAMSERVE) [2002] ECR II-723, paragraph 47). Second, even though, in accordance with that case-law, this alleged practice constitutes a relevant indicator in the assessment, not only is there no evidence to support the existence of this practice in the case-file, but, furthermore, there is also nothing to indicate that, in a dispute similar to that in the present case, the national Office would have acted in the manner wished for by the applicant.
50 From a Community standpoint, it is necessary, according to the case-law, to attach greater weight to the dominant element of a composite mark when assessing the likelihood of confusion. However, in the present case, it appears that the term 'Steninge' acquires real significance only as a result of its link with the second element of the marks in issue, particularly because of the fact that the term 'Steninge' denotes a geographical location.
51 Indeed, as the Board of Appeal noted (contested decision, paragraph 25), the mark applied for makes direct reference to a building, which both parties accept is a historic building located in Sweden, even though the applicant denies its renown. Consequently, the mark applied for has significance only in relation to that building. Likewise, the word 'keramik' in the earlier mark acquires a significance indicating the commercial origin of the goods covered by it only when it is linked with the word 'Steninge', thereby signifying ceramic goods from Steninge. Therefore, the assessment, particularly in its conceptual aspect, of the opposing marks must be carried out having regard to their whole meaning.
52 In that regard, the applicant disputes, on the ground of lack of substantiating evidence, the Board of Appeal's assessment that, for the average Swedish consumer, STENINGE SLOTT refers to the well-known historical palace of Steninge.
53 It is appropriate to recall that the Boards of Appeal are tasked with determining, even in the absence of scientifically demonstrable evidence (which can be adduced by the parties), the perception that the relevant public would have of the marks in issue. The Boards of Appeal can thus surmise what that perception will be. In order to do this, the Boards of Appeal can rely on matters of common knowledge and/or on the particular understanding of those matters by their members (HOOLIGAN, cited in paragraph 14 above, paragraph 59), subject to the adversely affected party's proving an error in assessing that common knowledge of those matters.
54 In the present case, it appears from the case-file that Steninge palace has played a role in national history which confers on it genuine notoriety amongst the Swedish public. Even taking into account the difficulty in proving otherwise, the applicant has provided no evidence that this palace does not enjoy particular notoriety amongst that public. Moreover, it is not claimed that 'Steninge' designates a location that is known in Sweden for its ceramics.
55 Consequently, the Board of Appeal was right to conclude that, from a conceptual point of view, the words 'Steninge slott' (Steninge palace) have a quite particular significance for the relevant public, compared with the words 'Steninge keramik' (Steninge ceramics), which have no real particular significance, and that the mark applied for would be recognised by a Swedish consumer as referring to Steninge palace, whereas the opponent's mark would be recognised as evoking only ceramics linked to Steninge (contested decision, paragraph 29).
56 This conceptual difference entails a real dissimilarity between the opposing marks taken as a whole which far outweighs any visual or phonetic similarities resulting from their common first element 'Steninge'.
57 It follows that the Board of Appeal was correct to hold that the differences between the signs in issue outweigh their similarities.
Likelihood of confusion
- Arguments of the parties
58 According to the applicant, the relevant public consists of average consumers, that is to say, consumers who are not well-informed about trade marks and are not very observant and circumspect as regards the slight differences between goods in Class 21, especially with regard to the goods covered by the opposing trade marks. As regards the similarity of the goods and the resemblances between the marks, the relevant public may reasonably assume that the goods originate, if not from the same undertaking, at least from economically-linked undertakings. The overall impression given by the opposing trade marks would be that the trade mark applied for is derivative of the earlier trade mark and has the same commercial origin. There is therefore a likelihood of confusion, which includes a likelihood of association, on the part of the relevant public.
59 In the present case, the degree of distinctiveness is not of major interest, since both trade marks are registrable as such. The application for the mark STENINGE SLOTT should be refused, not on the grounds of lack of distinctiveness, but because of the prior existence of the trade mark STENINGE KERAMIK.
60 Finally, the fact that the words 'Steninge slott' constitute the trade name of the applicant's company is irrelevant in the context of Article 8(1)(b) of Regulation No 40/94, as this fact has no impact on the assessment of the likelihood of confusion.
61 OHIM and the intervener submit that, given the differences between the goods covered by the opposing marks, the limited degree of distinctiveness of the 'Steninge' element, and the overall differences between the signs, there is no likelihood of confusion on the part of the Swedish public.
- Findings of the Court
62 Having correctly held that the goods in question had a low degree of similarity and that there were considerable differences between the signs in issue as a result of their conceptual differences, the Board of Appeal concluded, equally correctly, that there was no likelihood of confusion between the opposing marks for the average consumer in Sweden (contested decision, paragraphs 29 and 30).
63 This conclusion of the Board of Appeal must also be upheld as regards the likelihood of association of the opposing marks, as alleged by the applicant, to the extent to which the differences between those marks are sufficient also to rule out any risk that the average consumer might take the view that one of the marks is derived from the other.
64 In the light of the foregoing, the action must be dismissed.
Costs
65 Under Article 87(2) 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. 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.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders the applicant to pay the costs.
|
Pirrung |
Forwood |
Papasavvas |
Delivered in open court in Luxembourg on 17 October 2006.
|
Registrar |
President |
|
E. Coulon |
J. Pirrung |
*Language of the case: English.