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

ORDER OF THE COURT (Sixth Chamber)

15 July 2014 (*)

(Appeals - Community trade mark - Figurative mark in black and white ‘zoo sport’ - Opposition by the proprietor of the Community word and figurative marks containing the word elements ‘ZOOT’ and ‘SPORTS ZOOT SPORTS’ - Partial refusal of registration)

In Case C-675/13 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 December 2013,

Zoo Sport Ltd, established in Leeds (United Kingdom), represented by I. Rungg, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant at first instance,

K-2 Corp., established in Seattle (United States),

intervener at first instance,

THE COURT (Sixth Chamber),

composed of A. Borg Barthet (Rapporteur), President of the Chamber, M. Berger and S. Rodin, Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By its appeal, Zoo Sport Ltd (‘Zoo Sport’) requests the Court of Justice to vary the judgment of the General Court of the European Union in Zoo Sport v OHIM - K-2 (Zoo Sport), T-455/12, EU:T:2013:531 (‘the judgment under appeal’), by which the General Court dismissed its action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 9 August 2012 (Case R 1395/2011-4) concerning opposition proceedings between K-2 Corp. and Zoo Sport (‘the contested decision’).

 Legal context

2        Article 8 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1), which is entitled ‘Relative grounds for refusal’, provides in paragraph 1:

‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b)      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.’

 Facts giving rise to the dispute

3        The General Court summarised the facts giving rise to the dispute as follows:

‘1      On 24 January 2010, the predecessor in law to the applicant, [Zoo Sport], filed an application for registration of a Community trade mark at [OHIM], pursuant to [Regulation No 207/2009].

2      The mark in respect of which registration was sought is the following figurative mark in black and white:

3      The goods and services in respect of which registration was sought fall within Classes 18, 25 and 35 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond, in relation to each of those classes, to the following description:

Class 18: “Sports bags”;

Class 25: “Clothing; maillots; footwear; sports shoes”;

Class 35: “Distribution of samples; advertising”.

4      The Community trade mark application was published in Community Trade Marks Bulletin No 2010/057 of 29 March 2010.

5      On 29 June 2010, the intervener, K-2 Corp., filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009, to registration of the mark applied for in respect of all of the goods and services referred to in paragraph 3 above.

6      The opposition was based on two earlier marks: Community word mark ZOOT, registered on 13 September 2007 under No 5233119 (“the earlier word mark”), and Community figurative mark No 4719316 in black and white, registered on 8 June 2007 (“the earlier figurative mark”), reproduced below:

7      The earlier word mark was registered for the following goods:

Class 9: “Diving suits”;

Class 25: “Articles of clothing namely swimwear, footwear and headgear”.

8      The earlier figurative mark was registered for the following goods and services:

Class 25: “Clothing, footwear, headgear”;

Class 35: “Retailing in the field of sports clothing and equipment”;

Class 36: “Sponsoring of athletes during sports competitions and/or events”;

Class 41: “Providing information relating to sports competitions and events via a global computer information network”.

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

10      On 13 May 2011, the Opposition Division upheld the opposition pursuant to Article 8(1)(b) of Regulation No 207/2009, in so far as it was based on the earlier figurative mark, for part of the contested goods, namely for all of the goods in Classes 18 and 25, and rejected the opposition as to the remainder of the goods and services concerned. The Opposition Division also rejected the opposition based on Article 8(5) of Regulation No 207/2009 on the ground that no evidence had been adduced to support the claim that the earlier marks had a reputation. Lastly, the Opposition Division rejected the opposition in so far as it was based on the earlier word mark.

11      On 7 July 2011, the applicant filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.

12      In its response to the statement of grounds for the appeal, the intervener filed a cross-appeal in which it sought to have the opposition upheld for the services in Class 35.

13      By [the contested decision], the Fourth Board of Appeal of OHIM [“the Board of Appeal”] allowed the applicant’s appeal for the goods “sports bags” and dismissed the appeal as to the remainder.

14      The Board of Appeal also dismissed the intervener’s cross-appeal on the ground that it was inadmissible, since it did not meet the time-limit and fee requirements set out in Article 60 of Regulation No 207/2009. The Opposition Division’s decision to reject the opposition for the contested services in Class 35 therefore was res judicata in that respect. For the sake of completeness, the Board of Appeal nevertheless considered the cross-appeal and concluded that it was not well founded …

15      As regards the ground of appeal alleging breach of Article 8(1)(b) of Regulation No 207/2009, the Board of Appeal found, first, that the goods “sports bags” in Class 18 were different from the goods in Class 25 and from the services in Classes 35, 36 and 41 covered by the earlier figurative mark, whereas the goods in Class 25 were identical … The Board of Appeal also noted that the services in Class 35 covered by the mark applied for were different from all of the goods and services covered by the earlier figurative mark. According to the Board of Appeal, even if it were admissible, the cross-appeal brought by the other party would therefore be unfounded in any event …

16      Next, the Board of Appeal noted that the signs at issue had an average degree of phonetic and visual similarity. Conceptually, those signs are different for the public, who understands the word “zoo” as meaning an establishment for wild animals, and they are also similar in that they both include a reference to the term “sport” …

17      The Board of Appeal found that the goods covered by the marks at issue were aimed at the general public and that the consumer’s level of attention would be average and would not increase in accordance with the price of those goods …

18      For the Board of Appeal, the inherent distinctive character of the earlier figurative mark was normal …

19      Consequently, given the identical nature of the goods covered by the signs at issue, the average visual and phonetic similarity of those signs, the normal distinctive character of the earlier figurative mark and the normal level of attention of the relevant consumer, the Board of Appeal found a likelihood of confusion on the part of the relevant public as regards the goods in Class 25. The opposition was rejected for the other goods and services, which were different from those covered by the earlier figurative mark …

20      The Board of Appeal also considered that the outcome of the case would remain the same if the opposition were examined in the light of the earlier word mark …’

 The procedure before the General Court and the judgment under appeal

4        On 12 October 2012, Zoo Sport brought an action before the General Court against the contested decision.

5        In support of its action, Zoo Sport raised a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

6        In essence, the Zoo Sport complained that the Board of Appeal contravened that provision in so far as it should have found that the signs at issue, as a whole, were different and that there was therefore no likelihood of confusion.

7        After recalling, in paragraph 29 of the judgment under appeal, the case-law relating to the global assessment of the likelihood of confusion, the Court first of all found, in paragraph 30 of that judgment, that the goods at issue are aimed at the general public and are everyday consumer goods. Next, the Court found, in paragraph 36 of that judgment, that those goods may be purchased both by consumers who regularly practise a sport and by those who do not practise a sport or do not do so regularly. The Court added, in paragraph 39 of the judgment under appeal, that Zoo Sport did not put forward any argument capable of substantiating its claim that those goods cannot be considered to be everyday consumer goods. Consequently, the Court considered, in paragraph 42 of that judgment, that it is not appropriate to find a high degree of attention of the average consumers throughout the European Union, whether the goods at issue are specifically directed at sports activities or not.

8        With respect to the comparison of the goods at issue, the Court held, in paragraph 44 of the judgment under appeal, that the Board of Appeal was correct to find that the Opposition Division concluded that the goods at issue in Class 25 are identical given that the marks at issue cover clothing and footwear identically, and that maillots are included in the category of clothing covered by the earlier figurative mark, just as sports shoes are included in the category of footwear covered by the earlier figurative mark.

9        With respect to the comparison of the signs, the Court held, in paragraph 65 of the judgment under appeal, that, although it is true that the symmetrical effect which characterises the earlier figurative mark is not found in the mark in respect of which registration is sought and that the typefaces used to write the elements making up those marks differ, those facts are not however sufficient for the rejection of the Board of Appeal’s finding that the signs at issue have an average degree of visual similarity.

10      The Court also held, in paragraph 77 of the judgment under appeal, that, although it is true that the signs at issue are distinguished in particular by the fact that the letter ‘t’, or possibly ‘z’, of the earlier figurative mark must be pronounced, which will not be the case for the mark in respect of which registration is sought, that difference is not however sufficient to reject the finding reached by the Board of Appeal that the signs at issue are phonetically similar to an average degree.

11      As regards the conceptual similarity of the signs at issue, the Court found, in paragraph 89 of the judgment under appeal, that those signs display, first, a conceptual difference owing to the use of the elements ‘zoo’ and ‘zoot’ and, second, a low degree of conceptual similarity since both signs include the word ‘sport’ or ‘sports’. Thus, it was concluded, in paragraph 91 of that judgment, that the Board of Appeal had been correct to find that the signs at issue are visually and phonetically similar to an average degree and that, conceptually, a comparison of the signs does not reveal a significant difference between them.

12      Accordingly, the Court held, in paragraph 98 of the judgment under appeal, that, due to the identical nature of the goods at issue and taking account of the average visual and phonetic similarity of the signs at issue and the fact that, conceptually, the comparison of the signs does not establish a significant difference between them, the Board of Appeal was correct to conclude that in the present case there is a likelihood of confusion on the part of the relevant public between the mark in respect of which registration is sought and the earlier figurative mark for the goods at issue.

 Form of order sought before the Court of Justice

13      By its appeal, Zoo Sport requests that the Court vary the judgment under appeal and order OHIM to pay the costs of the present proceedings.

 The appeal

14      Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

15      In support of its appeal, Zoo Sport relies on a single ground of appeal, consisting of two parts, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

 The first part of the single ground of appeal

16      By the first part of its single ground of appeal, Zoo Sport claims that the General Court defined incorrectly the relevant public as being composed of average consumers rather than knowledgeable sports practitioners and that, accordingly, it wrongly found that the relevant public does not show a high degree of attention that excludes any likelihood of confusion. In any event, in Zoo Sport’s submission, average consumers show a high degree of attention when purchasing expensive goods such as those covered by the earlier figurative mark.

17      In that regard, the Court would point out that it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside as well as the legal arguments specifically advanced in support of the appeal (see, inter alia, judgments in Bergaderm and Goupil v Commission, C-352/98 P, EU:C:2000:361, paragraph 34, and Acino v Commission, C-269/13 P, EU:C:2014:255, paragraph 35).

18      However, in the present case, Zoo Sport did not indicate, in the first part of its single ground of appeal, how the General Court erred in law by rejecting, in paragraphs 36 to 42 of the judgment under appeal, the arguments that it had submitted at first instance, but merely reproduced those arguments.

19      Consequently, the first part of the single ground of appeal must be rejected as manifestly inadmissible.

 The second part of the single ground of appeal

20      By the second part of its single ground of appeal, Zoo Sport complains that the General Court erred in law by holding in essence that the dissimilarity of the signs at issue is not sufficient to permit the conclusion that there is no likelihood of confusion. Zoo Sport submits that, given that the trademarks at issue are completely different with respect to their visual, oral and conceptual aspects, there is no likelihood of confusion.

21      The Court would point out that, in accordance with the settled case-law of the Court of Justice, pursuant to Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, an appeal is limited to points of law. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgments in Calvin Klein Trademark Trust v OHIM, C-254/09 P, EU:C:2010:488, paragraph 49 and the case-law cited, and Bolloré v Commission, C-414/12 P, EU:C:2014:301, paragraph 78).

22      In that regard, it should be borne in mind that the assessment of the similarities between the signs at issue is of a factual nature and, save where the evidence and facts are distorted, is not subject to review by the Court of Justice on appeal. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see judgments in New Holland Ford v Commission, C-8/95 P, EU:C:1998:257, paragraph 72, and Calvin Klein Trademark Trust v OHIM, EU:C:2010:488, paragraph 50).

23      In the present case, by the second part of its single ground of appeal, the appellant is clearly attempting to obtain a re-examination by the Court of Justice of the factual assessment made by the General Court as regards the visual, phonetic and conceptual comparison of the signs at issue, without demonstrating or even alleging that the General Court distorted the evidence or the facts. Accordingly, the appellant cannot secure a re-examination by the Court of that assessment, with the result that that second part of the single ground of appeal must be rejected as manifestly inadmissible.

24      Accordingly, the single ground of appeal relied on by Zoo Sport in support of its appeal must be rejected as manifestly inadmissible, and the appeal must therefore be dismissed.

 Costs

25      Under Article 137 of the Rules of Procedure, applicable to the procedure on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. In this case, it is appropriate to order Zoo Sport to bear its own costs.

On those grounds, the Court (Sixth Chamber) hereby orders:

1.      The appeal is dismissed.

2.      Zoo Sport Ltd is ordered to bear its own costs.

[Signatures]

* Language of the case: English.