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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

27 February 2015 (*)

(Community trade mark — Opposition proceedings — Application for Community word mark INTERFACE — Earlier Community word mark Interfog — Relative ground for refusal — Likelihood of confusion — Identity of the goods — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

In Case T‑227/13,

Bayer Intellectual Property GmbH, established in Monheim am Rhein (Germany), represented by E. Armijo Chávarri and A. Sanz Cerralbo, lawyers,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented initially by A. Schifko and subsequently by D. Walicka, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of OHIM being

Interhygiene GmbH, established in Cuxhaven (Germany),

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 4 February 2013 (Case R 1688/2011-4), relating to opposition proceedings between Interhygiene GmbH and Bayer Intellectual Property GmbH,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,

Registrar: J. Weychert, Administrator,

having regard to the application lodged at the Court Registry on 17 April 2013,

having regard to the response lodged at the Court Registry on 24 July 2013,

further to the hearing on 4 December 2014,

gives the following

Judgment

 Background to the dispute

1        On 3 March 2009, the applicant — Bayer Intellectual Property GmbH — 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 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 trade mark for which registration was sought is the word sign INTERFACE.

3        The goods in respect of which registration was sought are in Class 5 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 to the following description: ‘Preparations for destroying plants and vermin, insecticides, herbicides, fungicides’.

4        The Community trade mark application was published in Community Trade Marks Bulletin No 9/2010 of 18 January 2010.

5        On 15 April 2010, the intervener — Interhygiene GmbH — filed a notice of opposition under Article 41 of Regulation No 207/2009 to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on the earlier Community word mark Interfog, applied for on 26 March 2004 and registered on 2 August 2005 under No 3 752 243, which covers, inter alia, goods in Class 5 corresponding to the following description: ‘Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides’.

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

8        By decision of 23 June 2011, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009, refusing, in respect of all of the goods concerned, registration of the mark applied for.

9        On 17 August 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.

10      By decision of 4 February 2013 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal. It found that the relevant public consisted both of general end consumers and of horticultural and agricultural specialists in the European Union, and that that public had a high level of attention. The Board of Appeal found that the goods covered by the marks at issue were identical, that those marks had an average degree of visual and phonetic similarity, and that they were neutral from a conceptual point of view. The Board of Appeal also noted that the distinctiveness of the earlier mark was average and that the intervener had not claimed any enhanced distinctive character acquired through use. Furthermore, the Board of Appeal rejected the applicant’s arguments based on the supposed coexistence of earlier marks sharing the prefix ‘inter’. In the light of those various factors, and taking account of the presence of that prefix at the beginning of each of the marks at issue, the Board of Appeal concluded that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order OHIM to pay the costs.

12      OHIM contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. In the first place, the applicant submits that the Board of Appeal erred in finding that all of the goods concerned were identical. In the second place, it argues that there is only a very low degree of similarity between the marks at issue. In the third place, it submits that the Board of Appeal erred in concluding that there was a likelihood of confusion between the marks at issue.

14      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 may not be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier 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 from economically-linked undertakings constitutes a likelihood of confusion. According to that same case-law, the likelihood of confusion must be assessed globally, according to the perception which the relevant public has of the signs and the goods or services in question, account being taken of all factors relevant to the circumstances of the case, including the interdependence between the similarity of the signs and that of the goods or services covered (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      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009 in Commercy v OHIM –– easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).

17      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, it should be noted that, in order to refuse to register a Community trade mark, it suffices that a relative ground for refusal under Article 8(1)(b) of Regulation No 207/2009 exists in part of the European Union (see, to that effect, judgment of 14 December 2006 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 76 and the case-law cited).

18      It is in the light of the foregoing principles that the present plea in law must be examined.

 The relevant public

19      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 level 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).

20      In paragraph 13 of the contested decision, the Board of Appeal held that the relevant territory is that of the European Union. This assessment, which, moreover, is shared by the parties, must be approved, as the earlier mark on which the contested decision is based is a Community mark.

21      In paragraph 14 of the contested decision, the Board of Appeal indicated that the goods concerned are aimed both at general end consumers and at horticultural and agricultural specialists. In view of the nature of those goods, it is necessary to confirm this identification of the relevant public, which, moreover, is likewise shared by the parties.

22      With regard to the level of attention of the relevant public, it is necessary to confirm the Board of Appeal’s assessment in paragraph 28 of the contested decision, approved by the parties, that that level of attention is high, as the goods concerned may contain toxic substances.

 Comparison of the goods

23      According to settled case-law, in order to assess the similarity of the goods or services concerned, all of the relevant factors relating to 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).

24      In paragraph 15 of the contested decision, the Board of Appeal held that all of the goods covered by the marks at issue were identical.

25      The applicant concurs with the Board of Appeal’s assessment that the ‘preparations for destroying vermin’, ‘insecticides’, ‘herbicides’ and ‘fungicides’ covered by the mark applied for are identical to certain goods covered by the earlier mark. By contrast, the applicant claims that the ‘preparations for destroying plants’ covered by the mark applied for include not only the ‘fungicides’ and ‘herbicides’ covered by the earlier mark, but also other goods, which are not covered by that mark, such as ‘pesticides’, ‘plant and seed disinfectants’, ‘bactericides’ and ‘algicides’. The Board of Appeal, it submits, ought therefore to have held that the goods concerned are partly identical and partly different.

26      It should be noted that goods may be regarded as identical where the goods covered by the earlier mark are included in a more general category to which the trade mark application refers (judgment of 23 October 2002 in Institut für Lernsysteme v OHIM — Educational Services (ELS), T‑388/00, ECR, EU:T:2002:260, paragraph 53), or, conversely, where the goods covered by the mark applied for are included in a more general category covered by the earlier mark (judgments of 23 October 2002 in Oberhauser v OHIM — Petit Liberto (Fifties), T‑104/01, ECR, EU:T:2002:262, paragraphs 32 and 33, and of 18 February 2004 in Koubi v OHIM — Flabesa (CONFORFLEX), T‑10/03, ECR, EU:T:2004:46, paragraphs 41 and 42).

27      In the case here at issue, as, moreover, the applicant itself observes, the ‘fungicides’ and ‘herbicides’ covered by the earlier mark fall into the broader category of ‘preparations for destroying plants’ covered by the mark applied for.

28      Accordingly, it must be concluded that the Board of Appeal acted correctly in law in holding that all of the goods concerned were identical.

 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 those 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 context, the average consumer generally perceives a mark as a whole and does not undertake an examination of 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).

30      According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgments of 23 October 2002 in Matratzen Concord v OHIM — Hukla Germany (MATRATZEN), T‑6/01, ECR, EU:T:2002:261, paragraph 30, and of 12 September 2007 in Koipe v OHIM — Aceites del Sur (La Española), T‑363/04, ECR, EU:T:2007:264, paragraph 98).

31      Moreover, 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. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment in OHIM v Shaker, paragraph 29 above, EU:C:2007:333, 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 (judgments in OHIM v Shaker, cited above, EU:C:2007:333, paragraph 42, and of 20 September 2007 in Nestlé v OHIM, C‑193/06 P, EU:C:2007:539, paragraph 43). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain in their memory, with the result that all of the other components are negligible in the overall impression which that mark creates (judgment in Nestlé v OHIM, cited above, EU:C:2007:539, paragraph 43).

32      In the present case, the marks at issue are, on the one hand, the earlier word mark Interfog and, on the other hand, the word mark applied for, INTERFACE.

33      In paragraphs 16 to 20 of the contested decision, the Board of Appeal found that the marks at issue had an average degree of visual and phonetic similarity and that they were neutral from a conceptual point of view.

34      The applicant contests those assessments, submitting that there is only a very low degree of similarity between the marks at issue. It claims that the prefix ‘inter’, common to those marks, is a generic term with only scant distinctiveness, which cannot therefore be regarded as the dominant element of those marks. Accordingly, the relevant public would focus its attention on the suffixes of the marks at issue — that is to say, on ‘face’, in the case of the mark applied for, and on ‘fog’, in the case of the earlier mark — which are different both visually and phonetically. As regards the conceptual comparison, the applicant notes that the mark applied for, unlike the earlier mark, has a clear meaning and that, accordingly, the Board of Appeal ought to have held that those marks were different, and not neutral, from a conceptual point of view.

35      OHIM takes issue with the applicant’s arguments.

36      First, as regards the visual comparison of the marks at issue, it should be noted that the Board of Appeal acted correctly in pointing out, in paragraph 18 of the contested decision, that the circumstance that one of the marks was presented in lower-case characters whereas the other was in upper-case characters was immaterial, as the protection arising from the registration of a word mark relates to the word indicated in the application for registration and not to the particular graphic or stylistic aspects that that mark might possibly assume (see judgment of 11 June 2014 in Golam v OHIM — meta Fackler Arzneimittel (METABIOMAX), T‑281/13, EU:T:2014:440, paragraph 41 and the case-law cited).

37      Next, it must be stated that the marks at issue, which comprise eight letters, in the case of the earlier mark, and nine, in the case of the mark applied for, and are therefore almost of the same length, have in common their first six letters ‘i’, ‘n’, ‘t’, ‘e’, ‘r’ and ‘f’, which are placed in the same order. Those marks are differentiated only by their endings, which consist, in the case of the earlier mark, of the letters ‘o’ and ‘g’ and, in the case of the mark applied for, of the letters ‘a’, ‘c’ and ‘e’. Accordingly, the Board of Appeal was right to find, in paragraph 18 of the contested decision, that there was an average degree of visual similarity between the marks in question.

38      Secondly, as regards the phonetic comparison of the marks at issue, it should be noted that the earlier mark is pronounced ‘in-ter-fog’, whereas the mark applied for is pronounced ‘in-ter-feis’ or ‘in-ter-fa-ce’. Thus, the first two syllables of the marks at issue are phonetically identical: their third syllable begins with the same consonant, ‘f’, and, in some EU languages, those marks are pronounced so as to be of the same length. It follows that the Board of Appeal acted correctly in finding, in paragraph 19 of the contested decision, that there was an average degree of phonetic similarity between the marks at issue.

39      Thirdly, as regards the conceptual comparison of the marks at issue, as the applicant has rightly observed, the Board of Appeal erred in its finding in paragraph 20 of the contested decision that this is neutral.

40      It follows from the case-law that, if one mark has a meaning while another mark does not, the marks are deemed to be conceptually different (see, to that effect, judgment of 16 November 2006 in Jabones Pardo v OHIM — Quimi Romar (YUKI), T‑278/04, EU:T:2006:351, paragraph 64).

41      In the case here at issue, the applicant agrees with the Board of Appeal’s assessment that the word ‘interfog’, of which the earlier mark is composed, does not have any conceptual content. Admittedly, the part of the relevant public that has a sufficient knowledge of English is liable to understand the word element ‘fog’ as signifying low-lying water droplets suspended in the air. However, this word element, when combined with the word element ‘inter’, is not such as to endow the earlier mark with a clear and determinate meaning.

42      By contrast, as the Board of Appeal rightly observes in paragraph 20 of the contested decision, the mark applied for is composed of the English word ‘interface’, which is a technical term used particularly in the field of information technology and has a semantic content not only in English but also in other EU languages, a fact which OHIM indeed acknowledged at the hearing. It must be held that there is a divergence in this respect between paragraphs 20 and 29 of the contested decision.

43      It follows that the Board of Appeal ought to have concluded that there is a certain conceptual difference between the marks at issue.

44      For the purpose of assessing the overall impression created by the marks at issue, apart from the comparisons made in paragraphs 36 to 43 above, it is also necessary to take account of the matters set out below.

45      First of all, it must be observed that the word element ‘inter’, which is common to the marks at issue, is a relatively common prefix. Therefore, as the applicant rightly argues, this element has only a low degree of distinctiveness and, contrary to what is indicated in paragraph 29 of the contested decision, although it appears in first place in the marks at issue, it is not of such a nature as to attract the attention of the consumer more than the other elements of which those marks are composed (see, to that effect, the judgment in METABIOMAX, paragraph 36 above, EU:T:2014:440, paragraph 50). In this context, it must be observed that, while it is true that, according to case-law, the first part of word marks may be capable of attracting the attention of consumers more than subsequent parts, this consideration does not, however, prevail in every case (see judgment in METABIOMAX, paragraph 36 above, EU:T:2014:440, paragraph 50 and the case-law cited).

46      Next, given that the level of attention of the relevant public is high, as has been established in paragraph 22 above, it must follow, as the applicant rightly contends, that that public will be more inclined to perceive the differences between the marks at issue than a public would be whose level of attention was only average or low.

47      The fact remains that the overall comparison of the marks at issue reveals certain similarities between them which cannot be ignored. Visually, as noted in paragraph 37 above, these marks are almost of the same length and have in common the majority of the letters which form them, those letters, moreover, being placed in the same order. Phonetically, as has been established in paragraph 38 above, the first two syllables of the marks at issue are identical, their third syllable begins with the same sound, ‘f’, and, in some EU languages, the marks are pronounced in such a way as to be of the same length.

48      This conclusion cannot be invalidated by the error vitiating the Board of Appeal’s reasoning with regard to the conceptual comparison of the marks at issue (see paragraphs 39 to 43 above). In this regard, it should be recalled that while, according to case-law, conceptual differences may be of a nature largely to neutralise visual or phonetic similarities between marks at issue, this is subject to the condition that at least one of the marks has, in the perception of the relevant public, a clear and determinate meaning, such that the public in question may grasp it immediately (judgment of 14 October 2003 in Phillips-Van Heusen v OHIM — Pash Textilvertrieb und Einzelhandel (BASS), T‑292/01, ECR, EU:T:2003:264, paragraph 54). In the case here at issue, if the relevant public is capable of attributing a meaning to the word ‘interface’ which constitutes the mark applied for, this word none the less relates to an abstract idea which, in the context of the goods concerned, will not have associations liable to facilitate the recollection of the mark on the basis of that meaning. The conceptual difference which exists between the marks at issue is therefore liable to escape the attention of the relevant public. Consequently, it must be held that the conceptual content of the mark applied for is not such as to neutralise the visual and phonetic similarities which exist between the marks at issue.

49      It follows from all of the foregoing that the marks at issue must be regarded as being overall similar, but to a degree which, without being low, is, for the reasons set out in paragraphs 45 and 46 above, below average.

 The likelihood of confusion

50      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 marks and the similarity of the goods or services concerned. Accordingly, a low degree of similarity between the 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 VENADO with frame and Others, paragraph 17 above, EU:T:2006:397, paragraph 74).

51      The Board of Appeal found, in paragraphs 21 to 29 of the contested decision, that, despite the high level of attention of the relevant public, there was a likelihood of confusion between the marks at issue after having observed, in substance, that the earlier mark had an average degree of distinctiveness and that no enhanced distinctiveness acquired through use had been claimed, that the goods concerned were identical, and that the marks possessed average visual and phonetic similarity which could not be neutralised by any conceptual differences between them.

52      The applicant disputes this conclusion, contending, in substance, that the goods concerned are only partially identical, that the marks at issue are only very slightly similar and that the level of attention of the relevant public is high. The applicant also submits that the Board of Appeal erred in rejecting the evidence that it had produced during the procedure before OHIM and which showed that a large number of marks containing the prefix ‘inter’ had been registered as Community marks by OHIM for goods in Class 5 and that those marks coexisted on the market.

53      That finding by the Board of Appeal must be upheld.

54      As has been established in paragraphs 23 to 28 above, the goods covered by the marks at issue are identical. It follows that, in order to avoid all likelihood of confusion, that identical nature must be offset by a high degree of difference between those marks. As concluded in paragraph 49 above, however, those marks possess, overall, a certain degree of similarity.

55      Furthermore, as indicated in paragraph 22 of the contested decision, the earlier mark possesses average — and not merely low — distinctiveness. This assessment, which, moreover, the applicant has not contested, must be upheld, as the term ‘interfog’ does not have any meaning in relation to the goods concerned (see paragraph 41 above). The more distinctive the earlier mark, the greater will be the likelihood of confusion, and therefore marks with a high distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, the judgments of 11 November 1997 in SABEL, C‑251/95, ECR, EU:C:1997:528, paragraph 24, and of 22 June 1999 in Lloyd Schuhfabrik Meyer, C‑342/97, ECR, EU:C:1999:323, paragraph 20).

56      It must also be held that, by means of its argument based on the presence on the market of several Community marks containing the prefix ‘inter’, the applicant seeks to demonstrate, in substance, that this prefix possesses a low distinctiveness only. This argument has already been examined in paragraphs 45 to 49 above, from which it follows that the low distinctiveness of that prefix does not stand in the way of the conclusion that, considered globally, the marks at issue are similar. It must be added that the fact that the prefix ‘inter’ possesses a weak distinctive character does not alter the fact that the earlier mark, considered as a whole, possesses average distinctiveness, for the reason set out in paragraph 55 above.

57      In view of all of the foregoing, the single plea in law must be rejected and the action dismissed in its entirety.

 Costs

58      Under 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.

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

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Bayer Intellectual Property GmbH to pay the costs.

Delivered in open court in Luxembourg on 27 February 2015.

[Signatures]

* Language of the case: English.

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