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Cite as: [2011] EUECJ T-313/10

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JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

10 November 2011 (*)

(Community trade mark – Opposition proceedings – Application for Community word mark AYUURI NATURAL – Earlier Community word and figurative marks AYUR – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 207/2009)

In Case T-313/10,

Three-N-Products Private Ltd, established in New Delhi (India), represented by C. Jäger, lawyer,

applicant,

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

defendant,

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

Sheilesh Shah, residing in Wembley (Royaume-Uni),

Akhil Shah, residing in Wembley,

represented by M. Chapple, Barrister,

interveners,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 1 June 2010 (case R 1005/2009-4), relating to opposition proceedings between (i) Three-N-Products Private Ltd and (ii) S. Shah, A. Shah and Mr M. Shah,

THE GENERAL COURT (Fifth Chamber),

composed of S. Papasavvas (Rapporteur), President, V. Vadapalas and K. O’Higgins, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Registry of the Court on 26 July 2010,

having regard to the response of OHIM lodged at the Registry of the Court on 16 November 2010,

having regard to the response of the interveners lodged at the Registry of the Court on 26 October 2010,

having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure, and having therefore decided, acting upon a report of the Judge Rapporteur, to give a ruling without an oral procedure pursuant to Article 135a of the Rules of Procedure of the Court,

gives the following

Judgment

Background to the dispute

1 On 2 April 2007, the interveners, Sheilesh Shah and Akhil Shah, filed an application for registration of 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 (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2 The mark for which registration was sought is the word sign AYUURI NATURAL.

3 The goods in respect of which registration was sought fall within Classes 3 and 5 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: ‘soaps; perfumery, essential oils, cosmetics, hair care products; dentifrices; beauty products’;

– Class 5: ‘Ayurvedic preparations; homeopathic preparations; herbal health preparations; healthfood supplements; healthcare products’.

4 The Community trade mark application was published in Community Trade Marks Bulletin No 2008/011 of 10 March 2008.

5 On 10 April 2008 the applicant, Three-N-Products Private Ltd, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6 The opposition was based on the following earlier marks:

– the Community word mark AYUR, registered under No 5429469;

– the Community figurative mark, registered under No 2996098, reproduced below:

7 The earlier mark registered under No 5429469 designates goods falling within Classes 3 and 5 of the Nice Agreement and corresponding, for each of those classes, to the following description:

– Class 3: ‘cosmetics, non medicated herbal skin care preparations, non medicated herbal hair care preparations, non medicated body care lotions; laundry bleach’;

– Class 5: ‘Herbal preparations for skin treatment, weight control, weight loss and treatment of diabetes; vitamin and mineral preparations and substances; health care products; vitamin preparations, mineral preparations for skin treatment, weight loss and treatment of diabetes’.

8 The earlier mark registered under No 2996098 designates products falling within Classes 3 and 5 within the meaning of the Nice Agreement and corresponding, for each of those classes, to the following description:

– Class 3: ‘cosmetics, non-medicated toiletries, bleaching preparations, scouring and cleansing preparations; cotton wool for cosmetic purposes’;

– Class 5: ‘herbal preparations; dietetic preparations and substances; vitamin and mineral preparations and substances; health care products; vitamin preparations, mineral preparations’.

9 The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009).

10 On 2 July 2009, the Opposition Division upheld the opposition.

11 On 27 August 2009, the interveners filed a notice of appeal at OHIM against the decision of the Opposition Division, pursuant to Articles 58 to 64 of Regulation No 207/2009.

12 By decision of 1 June 2010 (‘the contested decision’) the Fourth Board of Appeal of OHIM annulled the decision of the Opposition Division. Essentially, it considered that, although the goods in question were identical or similar, there was no likelihood of confusion given the weak distinctive character of the earlier marks and the low overall similarity between the signs at issue.

Forms of order sought by the parties

13 The applicant claims that the Court should:

– annul the contested decision;

– order OHIM to confirm the decision of its Opposition Division and to reject the application for a Community mark in its entirety;

– order OHIM to pay the costs;

– order OHIM to require the interveners to meet the applicant’s costs incurred in the opposition proceedings and the subsequent appeal.

14 OHIM contends that the Court should:

– dismiss the action;

– order the applicant to pay OHIM’s costs.

15 The interveners claim that the Court should:

– dismiss the action;

– affirm the contested decision;

– allow their application for a Community mark to proceed to registration;

– order the applicant to pay the costs or, in the alternative, order OHIM to pay the costs, or, in the further alternative, order the applicant and OHIM to pay jointly and severally the costs incurred by the interveners.

Law

Admissibility of the applicant’s second head of claim

16 It is settled case-law that, in an action brought before the Courts of the European Union against the decision of a Board of Appeal of OHIM, OHIM is required, under Article 65(6) of Regulation No 207/2009, to take the measures necessary to comply with the judgments of those courts. Accordingly, it is not for the General Court to issue directions to OHIM. It is for the latter to draw the appropriate inferences from the operative part and grounds of the Court’s judgment (see Case T-443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [2007] ECR II-2579, paragraph 20, and the case-law cited).

17 Therefore, the applicant’s head of claim requesting that the Court order OHIM to confirm the decision of the Opposition Division and to reject the application for a Community mark is inadmissible.

Documents put forward for the first time before the General Court

18 In order to demonstrate that the earlier marks have acquired distinctive character through use, the applicant produced copies of invoices issued between 2003 and 2008 by the company Ayur International.

19 Those documents, which were produced for the first time before the General Court, cannot be taken into consideration. The purpose of actions before the General Court is to review the legality of decisions of the Boards of Appeal of OHIM for the purposes of Article 65 of Regulation No 207/2009, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, the abovementioned documents must be excluded and there is no need to assess their probative value (see, to that effect, Case T-346/04 Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE) [2005] ECR II-4891, paragraph 19 and the case-law cited).

Substance

20 In support of its action, the applicant relies, essentially, on two pleas, the first alleging a breach of Article 7(1)(b) and (c) of Regulation No 207/2009 and Article 8(1)(b) of that regulation, the second alleging a misuse of powers within the meaning of Article 65(2) of the same regulation.

21 Regarding the first plea, the applicant submits that the Board of Appeal was wrong to conclude that there was no likelihood of confusion since the earlier marks are not of weak distinctive character, and the signs at issue are highly similar visually and phonetically.

22 OHIM claims that the reference to Article 7 of Regulation No 207/2009 is not relevant and that the assessment of the distinctive character of the earlier marks must take place in the context of the analysis of the likelihood of confusion. Furthermore, OHIM asserts that the Board of Appeal did not err in considering that the earlier marks had weak distinctive character. OHIM adds that the applicant’s arguments relating to the similarity between the signs at issue are unfounded and maintains that the Board of Appeal correctly concluded that there was no likelihood of confusion.

23 The interveners contest the merits of the applicant’s arguments. They consider that the Board of Appeal was fully entitled to conclude that the earlier marks were of weak distinctive character and that there were significant visual, phonetic and conceptual differences between the signs at issue.

24 First of all, it must be noted that Article 7 of Regulation No 207/2009 does not apply given that the Board of Appeal based its decision only on Article 8(1)(b) of that regulation. Nevertheless, in so far as the purpose of the applicant’s arguments relating to Article 7 of Regulation 207/2009 is to challenge the assessment of the distinctive character of the earlier marks carried out by the Board of Appeal, they will be examined in the context of the likelihood of confusion.

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 is not to be registered if because of its identity with, or similarity to, the 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 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 from economically linked undertakings constitutes a likelihood of confusion. According to the same line of authority, the likelihood of confusion must be assessed globally, in accordance with the perception of the relevant public of the signs and goods or services in question, taking into account all relevant factors, and in particular the interdependence between the similarity of the signs and the similarity of the goods or services designated (see Case T-162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II-2821, paragraphs 30 to 33 and the case-law cited).

27 It should be noted that the applicant does not contest the analysis of the Board of Appeal according to which the relevant public is that of the European Union, and the goods in question are aimed at both the final consumer and professionals in the field of beauty products and health care. Neither does it contest the conclusion of the Board of Appeal that, as none of the goods are pharmaceutical products available only on prescription, the level of attention paid by the relevant public will be average.

28 Furthermore, none of the parties contest the Board of Appeal’s finding that the goods in question are identical or similar.

Comparison of the signs

29 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 the signs, 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 assessment 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 (see Case C-334/05 P OHIM v Shaker [2007] ECR I-4529, paragraph 35 and case-law cited).

30 The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. Rather, the comparison must be made by examining each of the marks in question as a whole, which is not to say that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see OHIM v Shaker, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (OHIM v Shaker, paragraph 42, and judgment of 20 September 2007 in Case C-193/06 P Nestlé v OHIM, not published in the ECR, paragraph 42). That may be the case, inter alia, where that component is likely by itself to dominate the image which the relevant public retains of that mark, with the result that all the other components of the mark are negligible in the overall impression created by it (Nestlé v OHIM, paragraph 43).

31 Furthermore, there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since both types of mark have a graphic form capable of creating a visual impression (see Case T-359/02 Chum v OHIM – Star TV (STAR TV) [2005] ECR II-1515, paragraph 43 and the case-law cited).

32 The Board of Appeal considered that the visual similarity of the figurative and word marks at issue was average. It stated that there was less similarity between the mark applied for and the earlier figurative mark. It found that that there was a low degree of phonetic similarity between the signs at issue. Finally, at the conceptual level, the Board of Appeal found that, for that part of the public perceiving the mark applied for as a reference to the notion of ‘Ayurveda’, there was conceptual similarity. However, according to the Board of Appeal, no conceptual comparison could be made for that part of the public which perceives the mark applied for as a fantastical term devoid of meaning.

33 The applicant submits that the word ‘ayuuri’ is the dominant component of the mark applied for, that it coincides with the word ‘ayur’ and that the public generally pay greater attention to the start of words. It therefore asserts that the signs are highly similar visually. Likewise, it suggests there is a high level of phonetic similarity. Finally, at the conceptual level, it asserts that neither of the marks at issue has any meaning, and therefore that a conceptual comparison therefore has no bearing in comparing the similarity of the signs.

34 OHIM submits that the Applicant’s arguments are unfounded. In particular, at the visual level, it submits that the ending ‘ri’ of the mark applied for will attract the public’s attention to a greater extent. At the phonetic level, OHIM asserts that the marks at issue have markedly different length, vowel structure, rhythm and intonation. Finally, at the conceptual level, OHIM contends that the word ‘ayur’ will be understood as a reference to the term ‘ayurveda’.

35 The interveners assert that the conflicting marks bear a low degree of visual similarity, a very low degree of phonetic similarity and exhibit no meaningful conceptual similarity. They suggest that the mark applied for must be examined as a whole, but that, in any event, there is a substantial and sufficient difference between the earlier marks and the ‘ayuuri’ component.

36 It should be observed that the marks at issue are visually different, owing to the presence of ‘natural’, two letters ‘u’ and a letter ‘i’ in the AYUURI NATURAL mark applied for.

37 As the Board of Appeal noted, and the parties do not contest, ‘ayuuri’ is the dominant component of the mark applied for.

38 It should be noted that all the letters of the term ‘ayur’ are reproduced, in the same order, in ‘ayuuri’. Admittedly, the letters ‘u’ and ‘i’ added in the middle and at the end of the word are different, but they are not such as to attract the attention of the consumer, since he normally attaches more importance to the first part of words (see Joined Cases T-183/02 and T-184/02 El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aérees de España (MUNDICOR) [2004] ECR II-965, paragraph 81). OHIM’s argument that, in this case, the ending ‘uri’ is more distinctive and attracts more attention than the start of the word is not supported by evidence and cannot, therefore, be accepted.

39 Furthermore, as the Board of Appeal stated, the term ‘natural’ is a term frequently used in the field of beauty care and health treatments. Therefore, it will have only secondary importance in the overall impression left by the mark applied for.

40 It follows from the foregoing that, taking each as a whole, the two word marks at issue bear a high degree of visual similarity.

41 Regarding the comparison of the word mark applied for and the earlier figurative mark, it should be observed that graphic differences add to the differences between the verbal elements referred to at paragraphs 38 and 39 above: in the earlier figurative mark, a ring circles the word component and there are two ears of cereal to the right of that component.

42 The graphic components are of secondary importance, however, in that they do not constitute a particularly original or fantastical representation likely to draw the consumer’s attention. In addition, neither their size nor their colour is so distinctive as to dominate the word component of the mark (see, to that effect, Case T-35/04 Athinaiki Oikogeniaki Artopoiia v OHIM – Ferrero (FERRÓ) [2006] ECR II-785, paragraph 51). Finally, as the Board of Appeal noted, representations of cereals are commonly used in relation to cosmetic products and beauty treatment products to illustrate the fact that they are made with natural ingredients.

43 It follows from the foregoing that, taking each as a whole, the mark applied for and the earlier figurative mark exhibit an average degree of visual similarity.

44 At the phonetic level, as was observed by the Board of Appeal, the earlier marks are pronounced ‘ayur’, with two syllables, whereas the mark applied for is composed of two words comprising, in all, six syllables.

45 However, it must be recalled that all the letters of the earlier marks are included within the dominant component of the mark applied for. In addition, even if, as the Board of Appeal states, the consumer will try to pronounce the second syllable ‘yuu’ for longer, it is not certain that this difference will be perceptible to the ear, particularly if the word is pronounced quickly. Moreover, though the letter ‘i’ at the end of the word does indeed reinforce the phonetic differences in those languages in which the accent is on the last syllable, it is however at the end of the dominant element, to which consumers generally pay less attention, as the Board of Appeal rightly observed.

46 It follows from all the foregoing that the marks at issue, each taken as a whole, have phonetic differences; these are not, however, sufficient to counteract the resemblances between the dominant component of the mark applied for and the earlier marks. Accordingly, it is necessary to conclude that the signs at issue present an average degree of phonetic similarity.

47 At the conceptual level, it must be held that, contrary to the view of the Board of Appeal, the relevant public will not readily link the component ‘ayur’ and the word ‘Ayurveda’, which refers to a form of traditional Hindu medicine.

48 In that regard, as the Board of Appeal noted in the contested decision, that the word ‘ayurveda’ exists in several languages of the European Union. Furthermore, the terms ‘ayurveda’, ‘ayurvedic’ or ‘ayur’ are mentioned on pages of internet sites that were placed on the case file by the interveners.

49 However, that does not provide a sufficient basis on which to conclude that consumers in general are familiar with the concept of ‘Ayurveda’ in the sense of traditional Indian health and medicinal teachings. Although there exists, among the general consumer public of the European Union, a more specialised public with knowledge of alternative medicine, esotericism, Hinduism, oriental culture and yoga (judgment of 17 September 2008 in Case T-226/07 Prana Haus v OHIM (PRANAHAUS), not published in the ECR, paragraphs 26 and 29), there is no basis for the conclusion that that public makes up a large part of the relevant public, contrary to the assertions of the Board of Appeal. Likewise, the Board of Appeal’s assertion that alternative medicines, and in particular Ayurveda, are well known and have infiltrated European culture is not sufficiently substantiated.

50 Accordingly, only a part of the relevant public, made up of professionals in the field of beauty products and health treatments and also the public specifically interested in Indian culture or questions relating to alternative forms of medicine, will readily associate ‘Ayurveda’ and ‘ayur’. Owing to its knowledge, this specialised public will also recognise that the component ‘ayuuri’ alludes to ‘Ayurveda’.

51 On the other hand, for consumers who are unfamiliar with Indian culture or alternative medecine, it must be concluded that the terms ‘ayur’ and ‘ayuuri’ are devoid of meaning.

52 The presence of the component ‘natural’ in the mark applied for and the additional graphic elements in the earlier figurative mark are not such as to call those conclusions into question.

53 It follows that, for a part of the relevant public, there is a certain conceptual similarity between the signs at issue, whereas, for final consumers who have no particular interest in Indian culture or questions of alternative medicine, no conceptual comparison is possible.

54 In the light of all the foregoing, the Board of Appeal was wrong to conclude that the signs at issue exhibited a low degree of overall similarity. Given the average or high degree of visual similarity and the average degree of phonetic similarity, as well as the conceptual similarity for a part of the relevant public, it must on the contrary be concluded that the signs at issue bear at least an average degree of overall similarity.

The likelihood of confusion

55 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and that of the goods or services concerned. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (Case C-39/97 Canon [1998] ECR I-5507, paragraph 17, and Joined Cases T-81/03, T-82/03 and T-103/03 Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and Others) [2006] ECR II-5409, paragraph 74).

56 The Board of Appeal took the view that the term ‘ayur’ has weak distinctive character since a large part of the relevant public will understand this term as being derived from ‘Ayurveda’, which is a recognised name for a form of alternative medicine originating in India. It observed that the similarity between the signs is based on the element ‘ayur’, which is descriptive for the goods in question. Accordingly, given the weak distinctive character of the earlier marks and the weak overall similarity of the signs at issue, the Board of Appeal concluded that there was no likelihood of confusion, even for identical goods.

57 The applicant submits that the Board of Appeal’s analysis is not sufficiently substantiated. In particular, the applicant states that the term ‘ayur’ is not a recognised abbrevation for ‘Ayurveda’, and does not exist in any dictionary of a language of the European Union. It contends that the conclusion that the public will readily associate the term ‘ayur’ with Ayurvedic products is unfounded. It also maintains that the distinctive character of the earlier marks has been recognised by several European trademarks offices. In that context, the applicant asserts that the term ‘ayur’ is devoid of meaning and therefore has a distinctiveness which should be taken into account in the assessment of the likelihood of confusion.

58 OHIM contends that the word ‘Ayurveda’ is recognised by the public of the European Union and that the reasonably informed consumer will readily establish a link between this word and the term ‘ayur’. Furthermore, OHIM asserts that the similarities between the signs at issue relate only to a component which is descriptive for the goods in question. Therefore, OHIM maintains that the Board of Appeal was entitled to conclude that there was no likelihood of confusion.

59 The interveners submit that the findings of the Board of Appeal are correct, and submit, in particular, that the term ‘ayur’ is a recognised abbreviation within the European Union.

60 Regarding the distinctive character of the earlier marks, it follows from paragraphs 47 to 51 above that only a part of the relevant public will readily associate the terms ‘Ayurveda’ and ‘ayur’ for the relevant products.

61 Accordingly, the earlier marks can be considered weakly distinctive only for a part of the relevant public.

62 In the present case, as has been recalled above, the goods in question are identical or similar and the marks at issue exhibit at least an average overall degree of similarity.

63 It follows that, since the earlier marks are distinctive for a part of the relevant public and given the similarities between the goods and signs at issue, it must be concluded that there is a likelihood of confusion between the conflicting marks.

64 In any event, the finding of weak distinctive character for the earlier mark does not prevent a finding that there is a likelihood of confusion in the present case. Although the distinctive character of the earlier mark must be taken into account when assessing the likelihood of confusion, it is only one factor among others involved in such assessment. Thus, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see Case T-134/06 Xentral v OHIM – Pages jaunes (PAGESJAUNES.COM) [2007] ECR II-5213, paragraph 70 and the case-law cited).

65 Accordingly, even if the distinctive character of the earlier marks were considered weak for all of the relevant public, the similarities between the goods and signs set out at paragraph 62 above would justify the conclusion that there exists a likelihood of confusion.

66 It follows from all the foregoing that the Board of Appeal was wrong to conclude that there was no likelihood of confusion. The contested decision must therefore be annulled and there is no need to consider the second plea.

Costs

67 Pursuant to Article 87(2) 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.

68 Since OHIM has been unsuccessful, it must be ordered to pay the applicant’s costs, in accordance with the form of order sought by the applicant.

69 Since the interveners have been unsuccessful, they must be ordered to bear their own costs.

70 Furthermore, the applicant’s fourth head of claim is to be interpreted as a claim that the interveners should be ordered to bear the costs incurred by the parties during the administrative proceedings before OHIM. In that connection, it should be recalled that, under Article 136(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. However, that is not the case with regard to the costs incurred for the purposes of proceedings before the Opposition Division. It follows that the applicant’s request that the Interveners be ordered to pay the costs of the administrative proceedings before OHIM can be allowed only as regards the costs necessarily incurred for the purposes of the proceedings before the Board of Appeal (Case T-344/07 O2 (Germany) v OHIM (Homezone) [2010] ECR II-153, paragraph 84).

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1. Annuls the decision of the Fourth Board of Appeal of the Office for the Harmonisation of the Internal Market (Trade Marks and Designs) of 1 June 2010 (case R 1005/2009-4);

2. Orders OHIM to pay its own costs and those of Three-N-Products Private Ltd;

3. Orders Sheleish Shah and Akhil Shah to bear their own costs and the costs necessarily incurred by Three-N-Products Private Ltd for the purposes of the proceedings before the Fourth Board of Appeal.

Papasavvas

Vadapalas

O’Higgins

Delivered in open court in Luxembourg on 10 November 2011.

[Signatures]

* Language of the case: English.