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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

13 December 2016 (*)

(EU trade mark — Opposition proceedings — Application for the EU word mark APAX — Earlier international word mark APAX — Relative ground for refusal — Likelihood of confusion — Similarity of the goods and services — Article 8(1)(a) and (b) of Regulation (EC) No 207/2009)

In Case T‑58/16,

Apax Partners LLP, established in London (United Kingdom), represented by D. Rose, J. Warner and J. Curry, Solicitors,

applicant,

v

European Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral and I. Moisescu, acting as Agents,

defendant,

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

Apax Partners Midmarket, established in Paris (France), represented by C. Moyou Joly, lawyer,

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 26 November 2015 (Case R 1441/2014-2), relating to opposition proceedings between Apax Partners Midmarket and Apax Partners,

THE GENERAL COURT (Ninth Chamber),

composed of S. Gervasoni (President), L. Madise (Rapporteur) and R. da Silva Passos, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 11 February 2016,

having regard to the response of EUIPO lodged at the Court Registry on 19 April 2016,

having regard to the response of the intervener lodged at the Court Registry on 22 April 2016,

having regard to the fact that no request for a hearing was submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

 Background to the dispute

1        On 14 November 2003, the applicant, Apax Partners LLP, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO), 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 European Union trade mark (OJ 2009 L 78, p. 1)).

2        The trade mark for which registration was sought is the word mark APAX. 

3        The goods and services in respect of which registration was sought are in Classes 16, 35 and 36 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, inter alia, to the following description:

–        Class 16: ‘Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists’ materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); printers’ type; printing blocks’;

–        Class 35: ‘Advertising; business management; business administration; office functions’;

–        Class 36: ‘Insurance; financial affairs; monetary affairs; real estate affairs’.

4        The trade mark application was published in Community Trade Marks Bulletin No 36/2004 of 6 September 2004.

5        On 3 December 2004, the intervener, Apax Partners Midmarket, filed a notice of opposition pursuant to Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) to registration of the mark applied for. That opposition was registered under number B 764029.

6        The opposition was based, inter alia, on the existence of international registration No 572268 of the word mark APAX, designating Spain, amongst other countries, filed and registered on 6 June 1991, covering, inter alia, goods and services in Class 16, 35 and 36 and corresponding, for each of those classes, to the following description:

–        Class 16: ‘printed matter and publications of all types’.

–        Class 35: ‘Business services, especially business management assistance, commercial or industrial management assistance; business management consultancy; business assessments, evaluations and expert opinions, business investigations and research, business inquiries; organisational and business consulting; commercial information agencies; consultancy in connection with company and staff management, strategy planning, organisation and administration, consultancy regarding staff training and recruitment as services related to staff recruitment; market research and studies’.

–        Class 36: ‘investment activities of all kinds; real estate evaluations, real estate management and building; leasing of real estate; financial and monetary affairs’.

7        The grounds relied on in support of the opposition were those referred to in Article 8(1)(a) and (b) of Regulation No 40/94 (now Article 8(1)(a) and (b) of Regulation No 207/2009).

8        The opposition was directed against part of the goods and services covered by the mark applied for, namely:

–        Class 16: ‘Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists’ materials; office requisites (except furniture); instructional and teaching material (except apparatus); printers’ type; printing blocks’;

–        Class 35: ‘Advertising; business management; business administration; office functions’;

–        Class 36: ‘Insurance; financial affairs; monetary affairs; real estate affairs.’

9        On 9 April 2014, the Opposition Division partly upheld the opposition, under Article 8(1)(a) and (b) of Regulation No 207/2009, for the following goods and services:

–        Class 16: ‘Goods made from these materials (paper, cardboard), not included in other classes; printed matter; photographs; instructional and teaching material (except apparatus)’;

–        Class 35: ‘Advertising; business management; business administration; office functions’;

–        Class 36: ‘Insurance; financial affairs; monetary affairs; real estate affairs’.

10      On 6 June 2014, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division in so far as it had upheld the opposition of the intervener in respect of the goods and services referred to in paragraph 9 above.

11      By decision of 26 November 2015 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal. In the first place, after having held in paragraph 25 of the contested decision, that the relevant territory for assessing the likelihood of confusion was Spain, it noted, in paragraphs 26 and 27 of that decision, that, first, the goods at issue in Class 16 being aimed at the public at large, the relevant public had to be regarded as having an average level of attention and, second, since the services in Class 35 and 36 were aimed at a specialised or professional public, the level of attention of that public had to be considered high. In the second place, concerning the identity and similarity of the goods and services, the Board of Appeal held, first of all, in paragraph 32 of the contested decision, that the ‘photographs’ covered by the mark applied for had to be considered similar to the ‘printed matter’ covered by the earlier mark, then, in 36 and 37 of that decision, that the ‘business management’ services covered by the earlier mark must be considered similar, to a low degree, to the ‘advertising’ services and ‘office functions’ services in Class 35 and covered by the mark applied for and, finally, in paragraph 41 of the contested decision, that the ‘financial affairs’ services covered by the earlier mark were similar to the ‘insurance’ services covered by the mark applied for. The Board of Appeal considered, moreover, in paragraph 42 of the contested decision, that the other goods and services covered by the mark applied for were identical or similar to the goods and services covered by the earlier mark. In the third place, the Board of Appeal observed, in paragraph 47 of the contested decision, that the signs at issue were identical, which the parties did not dispute. The Board of Appeal therefore held, first, that, under Article 8(1)(a) of Regulation No 207/2009, the mark applied for could not be registered for goods and services considered identical to those covered by the earlier mark (paragraphs 48 and 49 of the contested decision) and, second, under Article 8(1)(b) of Regulation No 207/2009, the mark applied for could not be registered for the goods and services considered similar to those covered by the earlier mark, given the likelihood of confusion between the marks at issue (paragraphs 50 to 53 of the contested decision). It therefore dismissed the appeal brought against the Opposition Division’s decision.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        refer the application for registration back to EUIPO to allow it to proceed;

–        order EUIPO and the intervener to pay the costs, including those incurred for the purposes of the proceedings before the Board of Appeal and the Opposition Division.

13      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

14      The intervener contends that the Court should:

–        uphold the contested decision;

–        order the applicant to pay the costs, including those incurred for the purposes of the proceedings before the Board of Appeal and the Opposition Division.

 Law

15      As a preliminary point, given that ‘upholding’ the contested decision is tantamount to dismissing the action, the intervener’s first head of claim must be regarded as seeking, in essence, the dismissal of the action (see, to that effect, judgment of 5 February 2016, Kicktipp v OHIM — Italiana Calzature (kicktipp), T‑135/14, not published, EU:T:2016:69, paragraph 19 and the case-law cited).

16      In support of its action, the applicant relies on, in essence, a sole plea in law based on the Board of Appeal’s error of assessment in applying Article 8(1)(a) and (b) of Regulation No 207/2009.

17      EUIPO and the intervener dispute the applicant’s arguments.

18      Under Article 8(1)(a) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if it is identical to the earlier trade mark and the goods or services for which registration is applied for are identical to the goods or services for which the earlier trade mark is protected.

19      Under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the mark applied for must not 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 both 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.

20      Moreover, pursuant to Article 8(2)(a)(iii) of Regulation No 207/2009, ‘earlier trade marks’ should be taken to mean trade marks registered under international arrangements which have effect in a Member State, with a date of application for registration earlier than the date of application for registration of the EU trade mark.

21      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 relevant public’s perception of the signs and the goods or services in question, and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services 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).

22      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, Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

23      Consequently, for the purposes of applying Article 8(1)(b) of Regulation No 207/2009, it is still necessary, even where the two marks are identical, to adduce evidence of similarity between the goods or services covered by them (see judgment of 22 January 2009, easyHotel, T‑316/07, EU:T:2009:14, paragraph 43 and the case-law cited).

24      Lastly, it must be borne in mind that for a Union trade mark not to be registered, it suffices that a relative ground for refusal for the purposes of 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, EU:T:2006:397, paragraph 76 and the case-law cited).

25      It is in the light of those considerations that the lawfulness of the contested decision must be examined.

 The relevant public and territory

26      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s degree of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

27      In the present case, it must be noted that the Board of Appeal was fully entitled to consider, without challenge by the parties, first, in paragraph 25 of the contested decision, that the opposition being based on international registration No 572268 covering in particular Spain, the relevant territory in the light of which the likelihood of confusion must be assessed was Spain’s and, second, in paragraph 27 of that decision, that consumers display an average level of attention for the goods in Class 16, these being aimed at the public at large, and a high level of attention for the services in Class 35 and 36, these being aimed at a professional public, whose level of attention is high.

 Comparison of the signs

28      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, account being taken, in particular, of 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 engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

29      In the present case, the Board of Appeal correctly held, in paragraph 47 of the contested decision, and without challenge by the parties, that the goods at issue were identical, both being constituted entirely of the word sign APAX.

 Comparison of the goods and services

30      According to settled case-law, in order to assess the similarity of the goods or services concerned, all the relevant factors relating to those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and 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, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).

 The goods and services considered identical by the Board of Appeal

31      In paragraph 48 of the contested decision, the Board of Appeal considered that the goods and services covered by the mark applied for corresponding to the following description were identical to certain goods and services covered by the earlier mark:

–        Class 16: ‘Goods made from these materials (paper, cardboard), not included in other classes; printed matter; instructional and teaching material (except apparatus)’.

–        Class 35: ‘business management’;

–        Class 36: ‘Insurance; financial affairs; monetary affairs; real estate affairs’.

32      Consequently, having regard to the identity of the opposing signs and the identity of the goods and services covered by those signs, the Board of Appeal refused the registration of the mark applied for for those goods and services, under Article 8(1)(a) of Regulation No 207/2009.

33      This analysis, which, moreover, is undisputed by any of the applicant’s specific arguments, must be confirmed.

 The goods and services considered similar by the Board of Appeal

–       The ‘photographs’ in Class 16 covered by the mark applied for

34      The Board of Appeal held, in paragraph 32 of the contested decision, that the ‘photographs’ in Class 16 covered by the application for registration were similar to the ‘printed matter’ covered by the earlier mark. According to the Board of Appeal, that similarity is due to the fact that printed matter, including books, magazines, booklets, brochures and other publicity materials, can be entirely devoted to photography.

35      The applicant disputes this assessment. It relies on, in this respect, a decision of the Opposition Division and a decision of the Board of Appeal in which both held that the goods concerned lacked similarity in that, in essence, they had a different nature and purpose, were not manufactured by the same companies, were not created for the same consumers and were not distributed through the same channels.

36      According to settled case-law, decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal are called upon to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the question whether a sign may be registered as an EU trade mark must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of any previous practice of the Boards of Appeal (see judgments of 13 June 2014, Grupo Flexi de León v OHIM (FLEXI), T‑352/12, not published, EU:T:2014:519, paragraph 32 and the case-law cited).

37      In that regard, it should be recalled that observance of the principle of equal treatment must be reconciled with observance, specifically, of the principle of legality. According to that latter principle, no person may rely to his advantage on an unlawful act committed in another procedure (see judgment of 13 June 2014, FLEXI, T‑352/12, not published, EU:T:2014:519, paragraph 33 and the case-law cited).

38      Moreover, in so far as the applicant refers to a decision of the Opposition Division, it must be observed that the Boards of Appeal may not in any event be bound by the decisions of lower ranking adjudicating bodies of EUIPO (judgment of 22 May 2014, NIIT Insurance Technologies v OHIM (EXACT), T‑228/13, not published, EU:T:2014:272, paragraph 48).

39      In the present case, the Board of Appeal rightly considered that ‘photographs’ and ‘printed matter’ were similar. As stated in the contested decision, printed matter can be entirely devoted to photography, in particular where a catalogue or an album of photographs are concerned. Furthermore, printed matter and photographs share a common purpose, namely, to display the text or images in the case of the former and display the images in the case of the latter, images and text which are often combined.

40      In the light of the foregoing, the Board of Appeal rightly considered that ‘photographs’ covered by the mark applied for must be considered similar to ‘printed matter’ covered by the earlier mark.

–       ‘Advertising’ and ‘office functions’ services in Class 35 covered by the mark applied for

41      In the first place, the Board of Appeal held, in paragraph 36 of the contested decision, that the ‘advertising’ services covered in the application for registration were similar, to a low degree, to the ‘business management’ services covered by the earlier mark.

42      The applicant disputes that finding on the basis of a decision of the Opposition Division and claims that, in that decision, the Opposition Division considered that ‘business management’ services were dissimilar to ‘exploitation of all form and mode of advertising services’ and did not have the same purpose. The applicant also claims that the Opposition Division, in that decision, considered it unlikely that undertakings offering methods of management and administration also offer advertising strategies.

43      Nevertheless, first, as has been noted in paragraphs 36 to 38 above, in accordance with settled case-law, the question whether a sign may be registered as an EU trade mark must be assessed solely on the basis of Regulation No 207/2009, as interpreted by the Courts of the European Union, and not on the basis of any previous practice of the Boards of Appeal or Opposition Divisions.

44      Second, the applicant, by simply relying on the findings of the decision of the Opposition Division referred to in paragraph 42 above, does not demonstrate that the services at issue are dissimilar in nature and purpose and therefore cannot be provided by the same undertakings.

45      In those circumstances, the findings of the contested decision that, in essence, advertising amounts to a tool in business management, in that it increases the exposure of the undertaking on the market and, consequently, professionals who offer advice regarding how to manage a business may include, in their advice, advertising strategies, so that the relevant public may believe that these two services have the same professional origin, must, in the present case, be upheld.

46      The Board of Appeal was fully entitled to consider that ‘advertising’ services and ‘business management’ services were similar, to a low degree.

47      In the second place, the Board of Appeal stated, in paragraph 37 of the contested decision, that ‘office functions’ services in Class 35 covered by the application for registration were similar, to a low degree, to ‘business management’ services in the same class covered by the earlier mark.

48      The applicant disputes that assessment, by submitting that there is a significant difference with respect to the sources of those services, since their suppliers are entirely different and ‘“office functions” denotes day-to-day, logistical services which will be provided by secretaries ... whereas “business management” services relates to more strategic, long-term concerns’.

49      Nevertheless, as the Board of Appeal rightly noted, firstly, ‘business management’ services and ‘office functions’, which imply, typically, in particular, the renting and running of office equipment, and photocopying, secretarial and typing duties, can be offered by the same specialised suppliers, secondly, those services are aimed at the same consumers, namely, professional business customers and, thirdly, they contribute to the same purpose, namely, the proper running and success of an undertaking.

50      In those circumstances, the Board of Appeal did not err in its assessment finding that ‘office functions’ services were similar, to a low degree, to ‘business management’ services.

–       The ‘business administration’ services in Class 35 covered by the mark applied for

51      It must be noted that, as EUIPO states, the ‘business administration’ services covered by the application for registration have the same purpose, are addressed to the same consumers and offered by the same kind of specialised undertakings as the ‘business management’ services covered by the earlier mark. In those circumstances, the Board of Appeal’s assessment, according to which those services are similar, which, moreover, is undisputed by any of the applicant’s specific arguments, must be confirmed.

–       The ‘insurance’ services in Class 36 covered by the mark applied for

52      The Board of Appeal considered, in paragraph 41 of the contested decision, that the ‘insurance’ services covered in the application for registration were similar to the ‘financial affairs’ covered by the earlier mark.

53      The applicant disputes that assessment on the basis of a decision of the Opposition Division and claims that the services at issue are dissimilar, in that the ‘financial affairs’ services designate investment and advisory services, whereas ‘insurance’ services designate the provision of an insurance policy to a legal or natural person. It adds that those services correspond to sectors of activities entirely dissimilar in themselves.

54      Nevertheless, as stated in paragraphs 36 to 38 and 43 above, in accordance with settled-case law, the question whether a sign may be registered as an EU trade mark must not be assessed on the basis of any previous practice of the Boards of Appeal or Opposition Divisions.

55      Furthermore, as mentioned by the Board of Appeal, insurance services are of a financial nature. In that regard, clearly, first, insurance companies are subject to, in relation to licensing, supervision and solvency, rules similar to those of financial institutions and, second, the undertakings offering financial services can also offer insurance services, either directly, or by acting as agents for insurance companies to which they are, in some cases, economically linked.

56      In those circumstances, the Board of Appeal rightly considered that ‘insurance’ services were similar to ‘financial affairs’ services.

 The likelihood of confusion

57      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 covered. Accordingly, a low degree of similarity between those goods or services covered may be offset by a high degree of similarity between the marks, and vice versa (see, by analogy, judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and Others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

58      In the present case, the Board of Appeal held, in paragraphs 52 and 53 of the contested decision, that, in the light of the factors taken into account and of their mutual interdependence and, in particular, of the identity of the signs, there was a likelihood of confusion on the part of the public for those goods and services of the mark applied for considered similar, even if only slightly, to those of the earlier mark, even though, for certain services, the relevant public displayed a high level of attention.

59      The applicant merely states that, ‘having incorrectly assessed the similarity between the Contested Goods and Services and the goods and services of the Earlier Rights, the Board’s global assessment of the likelihood of confusion must necessarily be incorrect because it has erred in its approach’.

60      Nevertheless, as is apparent from paragraphs 34 to 56 above, it is wrongly that the applicant states that the Board of Appeal vitiated its decision by an error of assessment regarding the similarity of the contested goods and services.

61      In those circumstances, the Board of Appeal rightly held that there was a likelihood of confusion between the marks at issue (see, to that effect, judgment of 24 September 2014, Sanofi v OHIM — GP Pharm (GEPRAL), T‑493/12, not published, EU:T:2014:807, paragraphs 39 and 40).

62      Consequently, the applicant’s single plea in law must be rejected as unfounded and the action must therefore be dismissed in its entirety, without any need to examine the admissibility of the applicant’s claim seeking, in essence, to obtain the registration of the mark applied for (see, to that effect, judgment of 27 February 2015, LS Fashion v OHIM — Gestión de Activos Isorana (L’Wren Scott), T‑41/12, not published, EU:T:2015:125, paragraph 83 and the case-law cited).

 Costs

63      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

64      In the present case, EUIPO and the intervener have applied for the applicant to be ordered to pay the costs of these proceedings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in the proceedings before the Court in accordance with the form of order sought by EUIPO and the intervener.

65      Moreover, the intervener has also claimed that the applicant should be ordered to pay the costs incurred by the intervener in the administrative proceedings before EUIPO. In that regard, it must be borne in mind that, pursuant to Article 190(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 in respect of the costs incurred for the purposes of proceedings before the Opposition Division. Accordingly, the intervener’s request that the applicant, having been unsuccessful, be ordered to pay the costs of the administrative proceedings before EUIPO can be allowed only as regards the costs necessarily incurred by the intervener for the purposes of the proceedings before the Board of Appeal (see, to that effect, judgment of 10 February 2015, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13, not published, EU:T:2015:81, paragraph 98 and the case-law cited).

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders APAX Partners LLP to pay the costs, including those necessarily incurred by APAX Partners Midmarket, for the purposes of the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO).

Delivered in open court in Luxembourg on 13 December 2016.

* Language of the case: English.

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