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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

7 February 2018 (*)

(EU trade mark — Opposition proceedings — International registration designating the European Union — Figurative mark CRABS — Earlier international registration of the figurative mark РАКОВЫЕ ШЕЙКИ — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

In Case T‑795/16,

Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO, established in Moscow (Russia), represented by O. Spuhler, M. Geitz and J. Stock, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė and D. Walicka, acting as Agents,

defendant,

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

Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’, established in Kiev (Ukraine), represented by R. Žabolienė and I. Lukauskienė, lawyers,

ACTION brought against the decision of the First Board of Appeal of EUIPO of 11 August 2016 (Case R 2507/2015-1), relating to opposition proceedings between Moscow Confectionary Factory ‘Krasnyiy oktyabr’ and Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’,

THE GENERAL COURT (Third Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, I.S. Forrester and E. Perillo, Judges,

Registrar: X. Lopez Bancalari, Administrator,

having regard to the application lodged at the Court Registry on 9 November 2016,

having regard to the response of EUIPO lodged at the Court Registry on 22 February 2017,

having regard to the response of the intervener lodged at the Court Registry on 20 February 2017,

further to the hearing on 21 November 2017,

gives the following

Judgment

 Background to the dispute

1        On 26 September 2013, the intervener, Dochirnie pidpryiemstvo Kondyterska korporatsiia ‘Roshen’, filed an application for protection in the European Union of international registration No 1186110 with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2        The international registration in respect of which protection was sought is the following figurative sign:

3        The goods in respect of which protection was sought are in Class 30 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 that class, to the following description: ‘confectionery, caramels [candy]’.

4        The colours red, yellow and white were claimed.

5        The particulars of the international registration provided for in Article 152(1) of Regulation No 207/2009 (now Article 190(1) of Regulation 2017/1001) were published in Community Trade Marks Bulletin No 242/2013 of 20 December 2013.

6        On 4 March 2014, the applicant, Joint-Stock Company ‘Krasnyiy oktyabr’, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to the application for protection of the international registration in respect of the goods referred to in paragraph 3 above.

7        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001) and the opposition was based on international registration No 1102599, with effect in Bulgaria, Benelux, Germany, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia and the United Kingdom, of the following figurative sign registered in respect of goods in Class 30, namely ‘sweetmeats [candy]’:

8        The colours red, white and black were claimed.

9        The opposition was based on all the goods covered by the earlier right and was directed against all the goods covered by the intervener’s international registration.

10      On 21 October 2015, the Opposition Division rejected the opposition in its entirety. It found that, irrespective of the identity of the goods and the conceptual similarity of the pictures of crayfish, the visual and phonetic differences between the signs, in particular as regards their word elements, were sufficient to offset the similarities and that there was therefore no likelihood of confusion.

11      On 16 December 2015, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the Opposition Division’s decision.

12      By decision of 11 August 2016 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed that appeal.

 Forms of order sought

13      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

14      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

15      The applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009, which it divides into three parts: assessment of the signs at issue, assessment of the distinctiveness of the earlier mark and assessment of the likelihood of confusion.

16      Pursuant to Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for cannot 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 trade mark.

17      According to established 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 case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and 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, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

18      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).

 The relevant public

19      As regards the determination of the relevant public, it is apparent from paragraph 18 of the contested decision that the Board of Appeal considered that the relevant public consisted of the public at large and that its level of attention varied from low, in the case of low-priced confectionary designed for mass consumption, to average, in the case of luxury confectionary. The Board of Appeal further considered, in paragraph 19 of the contested decision, that the relevant territories for the global assessment of the likelihood of confusion were Bulgaria, Benelux, Germany, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia and the United Kingdom.

20      Having regard to the contents of the file, it is appropriate to endorse that definition of the relevant public, which, moreover, is not disputed by the parties.

21      Furthermore, it must be borne in mind that, as regards the assessment of the likelihood of confusion, the section of the public which has the lowest level of attention must be taken into consideration (see judgment of 15 July 2011, Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO), T‑220/09, not published, EU:T:2011:392, paragraph 21 and the case-law cited). In the case at hand, the likelihood of confusion is to be assessed from the perspective of an average consumer, who is reasonably well informed and reasonably observant and circumspect, but whose level of attention is low in the case of low-priced confectionary and candy designed for mass consumption.

 The comparison of the goods

22      As regards the comparison of the goods, it is apparent from paragraph 21 of the contested decision that the Board of Appeal found them to be identical, since, on the one hand, ‘confectionary’ covered by the contested right was identical to ‘sweetmeats [candy]’ covered by the earlier right and, on the other, ‘caramels [candy]’ covered by the contested right were included in ‘sweetmeats [candy]’ of the earlier right and were therefore also identical.

23      Having regard to the contents of the file, it is appropriate to endorse that assessment of the comparison of the goods, which, moreover, is not disputed by the parties.

 The comparison of the signs

24      The applicant submits that there was at least an average degree of similarity between the signs at issue. In the present case, the Board of Appeal should, in its view, have considered that the structure of the signs was almost identical, since they were both rectangular with a number of crayfish depicted in the centre of the signs and a border of figurative and word elements on the left- and right-hand sides.

25      First, the applicant submits that the Board of Appeal did not correctly assess the overall impression created by the signs at issue because it adopted an approach which was too analytical and which dissected the signs at issue by pointing out the differences between them in every detail. In particular, the applicant claims that the Board of Appeal did not take into account that the level of attention of the relevant consumers, namely the general public, varied from low to average with regard to the goods at issue. It submits that, if the average consumer’s attention is considered to be low, that consumer would not carry out a detailed examination, but would focus on the overall impression created.

26      Secondly, the applicant submits that the Board of Appeal wrongly assumed that the distinctive element of the contested sign was the word element ‘crabs’. It further submits that the Board of Appeal failed to point out, in the present case, that the figurative elements had more weight than the verbal elements of the contested sign because the importance of the verbal element was weakened by its position and size and the fact that the figurative element was conceptually linked with the word element. The Board of Appeal also failed to take into consideration that the relevant public, on account of its level of attention, would not differentiate between the concepts of crab and crayfish, which it would associate with crustaceans without giving thought to possible differences. It maintains that the public would assume that the element ‘crabs’ in the contested sign was an illustration or description of the crayfish represented in the centre of that sign. It maintains that, in addition, owing to its position in the centre of the sign, it was the figurative element representing crayfish which was the focus of attention rather than the word element ‘crabs’, which was part of the frame. In the applicant’s view, the fact that the contested sign used crayfish in connection with the word ‘crabs’ showed that the relevant public would confuse one with the other. For the relevant public, it was the representation of crayfish in the centre of the contested sign which was the distinctive element of that sign. It claims that that element is not decorative, but is the dominant element in the contested sign. Similarly, the applicant claims that the contested decision did not take into account that the relevant public would not analyse whether the crayfish in the contested sign were depicted on sweet wrappers or not. It submits that, on account of its low level of attention, that public would only perceive that those crayfish were represented in the centre of the contested sign; the average consumer would not give any thought to the question of the background of the depicted crayfish. The applicant claims that, as regards the earlier sign, the contested decision correctly assumed that the word elements in that sign would not be understood by the majority of the relevant public and that the distinctive element in that sign was the representation of crayfish in the centre of the sign.

27      Thirdly, the applicant submits that the structure of the signs was identical from a visual standpoint, since those signs consisted of representations of crayfish which were arranged in the centre of the signs and were the distinctive elements in those signs and of elements arranged to the left and right of those representations, which gave the impression of forming a frame. In its view, the relevant public, which only rarely has the chance to compare the marks directly, would remember the imperfect image of crayfish arranged vertically in the centre of the signs at issue and would not pay attention to the details of those crayfish or to how they were arranged. It maintains that, in spite of alleged differences in the degrees of stylisation, the signs gave an overall impression of symmetry and were visually similar to at least an average degree. As regards the phonetic comparison of the signs, the Board of Appeal was right to observe that it would not be possible for the majority of the relevant public to make such a comparison. It takes the view that the Board of Appeal, however, incorrectly took into consideration that only a minimal part of the relevant public would be capable of pronouncing the word elements in the earlier mark and of finding differences between the signs.Furthermore, from a conceptual point of view, the signs at issue were identical, as the Board of Appeal found.

28      EUIPO and the intervener dispute those arguments.

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, inter alia, their distinctive and dominant elements. 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 that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse 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).

30      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 of 12 June 2007, OHIM v Shaker, C‑334/05 P, 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 of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 42). That may be the case, in particular, 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 the mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

31      In the present case, following its analysis of the comparison of the signs, the Board of Appeal considered that, although the signs at issue contained representations of crayfish, there were a number of significant differences, especially visual differences. Therefore, the Board of Appeal concluded that the signs at issue were only ‘similar to a low degree’ (see paragraph 33 of the contested decision).

32      As a starting point, the Court notes that the signs at issue were described as follows by the Board of Appeal.

33      First, in paragraph 22 of the contested decision, the Board of Appeal stated, first of all, that the contested sign depicted a label consisting of a white square with yellow and red wavy lines at its right and left sides and a thick curved yellow band on top of the square. Next, the Board of Appeal stated that, in the middle of the white square, there was a stylised red crayfish depicted together with a number of sweets ‘each of them bearing on [its] wrapper the image of the same stylised red crayfish’. Finally, the Board of Appeal pointed out that, above the crayfish and the sweets with crayfish on their wrappers there was the word element ‘crabs’ written in large, red, stylised letters.

34      Secondly, in paragraph 23 of the contested decision, the Board of Appeal also stated that the earlier sign consisted of a rectangular label containing a stylised image of a crayfish depicted four times in a vertical line, that it contained the word elements ‘раковЫе шейки’ and ‘карамель’, written in Cyrillic letters in black and repeated twice (their transliterations being ‘rakovye šejki’ and ‘karameľ), that a round seal with various illegible elements was depicted on two sides of the sign, twice on the left side and three times on the right side and that, on the left side of the sign, some words written vertically appeared in Cyrillic and, according to the description of the sign in the registration certificate, their transliterations were ‘kond’, ‘f-ka’ and ‘krasnyj octyabr’.

35      The applicant submits in that respect that the Board of Appeal did not correctly evaluate, first, the relative importance of the word and figurative elements of the contested sign and, second, the structure of the signs at issue. The applicant also submits that the result of the visual, phonetic and conceptual comparison of the signs was erroneous and that the Board of Appeal did not correctly assess the overall impression created by the signs at issue.

36      First of all, as it already argued before the Board of Appeal, the applicant submits that the distinctive element of the contested sign was not the word element ‘crabs’.

37      The Court points out, however, that, for the reasons set out in paragraph 24 of the contested decision, the Board of Appeal did not err in considering that the most distinctive element of the contested sign was the word element ‘crabs’. First, as the Board of Appeal pointed out, that word was not descriptive of the goods at issue, even for the part of the relevant public who understood its meaning. Crabs have no connection with sweets. Second, the Board of Appeal also correctly stated that the word element ‘crabs’ was written in large, red, bold letters and constituted the visual focus of the contested sign because it was prominently situated at its centre and it was elevated above the figurative elements beneath it. Third, the Board of Appeal was right to consider that, due to their position in the contested sign, their arrangement and their significantly smaller size compared to the word element ‘crabs’, the figurative elements of a crayfish and sweets with crayfish on their wrappers would be perceived as serving only decorative purposes. In that respect, the Board of Appeal was legitimately able to find that to be all the more true since the representation of sweets was non-distinctive for the relevant goods.

38      Similarly, the Board of Appeal was founded in noting, in paragraph 25 of the contested decision, that it was settled case-law that, when a mark is composed of word elements and figurative elements, the former are, as a rule, more distinctive than the latter, since the average consumer will more easily refer to the goods in question by citing the name rather than describing the figurative element of the mark (see judgment of 15 December 2009, Trubion Pharmaceuticals v OHIM — Merck (TRUBION), T‑412/08, not published, EU:T:2009:507, paragraph 45 and the case-law cited).

39      That principle was very much applicable in the present case. For the reasons set out by the Board of Appeal in paragraphs 25 and 26 of the contested decision in response to the arguments made in that respect by the applicant, it could not be considered that the figurative elements had the same or more weight than the word element (see, to that effect, judgments of 12 November 2015, CEDC International v OHIM — Fabryka Wódek Palmos Łańcut (WISENT), T‑449/13, not published, EU:T:2015:839, paragraphs 81 to 84, and of 30 November 2015, Hong Kong Group v OHIM — WE Brand (W E), T‑718/14, not published, EU:T:2015:916, paragraph 45). For the same reasons, the applicant’s line of argument that the importance of the word element was weakened by its size and that the figurative element was conceptually linked with the word element cannot be upheld in an attempt to rely once again on the case-law cited above. That assertion does not correspond at all to the description of the contested sign, in which the word element ‘crabs’ occupies a central position and is significantly larger than the figurative elements and in which those figurative elements represent crayfish and not crabs.

40      The applicant has thus no basis for arguing that, in the contested sign, the word element ‘crabs’ was not the most distinctive element but was only descriptive of the figurative elements depicting crayfish.

41      Following on from the above, the applicant submits that the Board of Appeal should have considered that the dominant element of the contested sign was constituted by its figurative elements depicting crayfish.

42      In that respect and contrary to what the applicant asserts, there is no basis to consider that the relevant public would not make a distinction between the notions of crab and crayfish, which they would associate with crustaceans without giving thought to possible differences. Other than the fact that such an assertion is not substantiated by evidence of any kind, it should also be pointed out that it is contradicted by several findings made by the Board of Appeal in paragraph 26 of the contested decision. Accordingly, for the part of the relevant public which understood the meaning of the word element ‘crabs’ and was thus able to examine it in the light of the figurative elements depicting crayfish, that word element could not be perceived as an element detachable from the figurative elements. In any event, the mere fact that crabs and crayfish are crustaceans cannot suffice to remove the differences which exist between those two animals or between a crab and a sweet with a representation of a crayfish on its packaging when it comes to assessing the distinctive and dominant elements of the signs at issue from the point of view of the relevant public. Similarly, for the part of the public which did not understand the meaning of the word element ‘crabs’, the fact remains that, in principle, that element remained more distinctive than the figurative elements for the reasons set out in paragraph 39 above.

43      The applicant has thus no basis for claiming that, in the contested sign, the figurative elements depicting crayfish constituted the dominant element.

44      Moreover, the applicant accuses the Board of Appeal of not having taken account of the fact that the relevant public would not seek to analyse whether the crayfish of the contested sign were depicted or not on sweet wrappers.

45      In that regard, the Court points out that, in paragraph 24 of the contested decision, the Board of Appeal stated that the contested sign bore the graphic representation of a number of sweets with crayfish on their wrappers. By referring to that characteristic, the Board of Appeal therefore did not, contrary to what the applicant alleges, commit an error in identifying the distinctive element of the contested sign. As has been stated in paragraphs 37 to 40 above, the most distinctive element of the contested sign was the word element ‘crabs’ and not the figurative elements depicting crayfish, irrespective of whether the relevant public was able to distinguish between the stylised, red crayfish placed to the left of the centre of the contested sign or the four other crayfish featured on the packaging of the two sweets situated to the right of the centre of that sign. Nor is the reference made by the applicant to the decision of the First Board of Appeal of 11 August 2016 in Case R 2419/2015-1 any more relevant in so far as the contested sign which was the subject matter of that decision, even though a representation of a sweet wrapper, did not contain a figurative element reproducing sweet wrappers decorated with crayfish.

46      The applicant has therefore no basis for claiming that the Board of Appeal committed an error in identifying the distinctive element of the contested sign as wrappers decorated with a crayfish.

47      In addition, and a point which is not disputed by the parties, it should be pointed out that the Board of Appeal considered that, as its word elements were not understood by the majority of the relevant public, the most distinctive element of the earlier sign was the representation of crayfish in the centre of the sign (see contested decision, paragraphs 27 to 29).

48      As a result and contrary to what the applicant claims, it is not sufficient to claim that the structure of the signs was ‘almost identical’, because they were both rectangular, had a number of crayfish depicted in their centres and had a border made up of figurative or verbal elements on the sides, to assert that the Board of Appeal was not entitled to consider that the most distinctive element of the contested sign was not that representation of crayfish but the word element ‘crabs’.

49      In the second place, precisely in the context of its assessment of the comparison of the signs at issue in the present case, the Board of Appeal came to the conclusion that those signs were only ‘visually similar to a low degree’ for the following reasons (see contested decision, paragraph 29).

50      First of all, the Board of Appeal found that the signs at issue were similar in so far as they both contained graphic representations of crayfish. However, the Board of Appeal immediately pointed out that, whereas the word element ‘crabs’ formed the most distinctive element of the contested sign, the most distinctive element of the earlier sign consisted, for the non-Russian-speaking part of the relevant public, which made up the vast majority of that public, of the four representations of crayfish, taken as a whole.

51      As is apparent from paragraphs 36 to 47 above, such an assessment is founded.

52      Moreover, the Board of Appeal found that the signs at issue showed a significantly different structure in several respects:

–        the four crayfish were arranged in a vertical line in the earlier sign, whereas the graphic representations of one crayfish and a number of sweets with crayfish on their wrappers of the contested sign gave the impression of serving only decorative purposes;

–        the earlier sign was composed of three vertical lines, namely a prominent vertical line in the middle of the sign showing representations of crayfish and two significantly smaller vertical lines formed out of additional figurative and verbal elements, whereas the contested sign lacked the prominent vertical line in the centre;

–        unlike the earlier sign, the representations of crayfish of the contested sign did not give an orderly impression, but rather evoked the impression of being randomly scattered around;

–        the largest individual element in the contested sign was the word ‘crabs’, written in large letters in the upper part of the sign and which was significantly larger than the representations of one crayfish and a number of sweets with crayfish on their wrappers, whereas the largest individual elements in the earlier sign were the representations of crayfish;

–        the depictions of crayfish in the respective signs showed differences, since, in the contested sign, the depiction was much more stylised and simplified than in the earlier sign where the crayfish were shown in a more realistic and lifelike manner;

–        the signs at issue also differ in their word elements (‘раковЫе шейки’ and ‘карамель’ in the earlier sign and the word element ‘crabs’ in the contested sign) as well as in the remaining figurative elements (the seals in the earlier mark and the sweets and wavy lines in the contested sign).

53      All those findings are based on the visual assessment of the signs at issue and support, especially when taken as a whole, the conclusion drawn by the Board of Appeal that the signs at issue showed a significantly different structure from the point of view of the relevant public.

54      The applicant’s argument can thus not be followed that the structure of the signs was identical from a visual standpoint, since those signs consisted of representations of crayfish which were arranged in the centre of the signs and were the distinctive elements in those signs and of elements arranged to the left and right of those representations, which gave the impression of forming a frame. Similarly, its assertions that, on the one hand, the relevant public would remember only the imperfect image of crayfish arranged vertically in the centre of the signs at issue and would not pay attention to the details of those crayfish or to how they were arranged and, on the other hand, the signs gave an overall impression of symmetry and were visually similar to at least an average degree, manifestly do not correspond to the result set out above of the visual comparison of the signs.

55      In the light of such observations, the Board of Appeal was entitled to find that the signs at issue were only visually similar to a low degree.

56      As regards the phonetic comparison of the signs, it is not disputed that the signs at issue either did not lend themselves to such a comparison because their word elements were incomprehensible and illegible for the relevant consumers, such as those who were not able to pronounce the word elements of the earlier sign written in Cyrillic letters, or could be recognised only by consumers who spoke Bulgarian or who had knowledge of Russian, for whom the signs at issue were different phonetically (see contested decision, paragraphs 30 and 31).

57      The applicant submits, however, that the Board of Appeal wrongly took account of the fact that only part of the relevant public was capable of pronouncing the word elements of the earlier sign and of finding differences between the signs.

58      Such an assertion, which is devoid of any explanation as to the nature and scope of the error which the Board of Appeal is alleged to have committed, has no bearing on the grounds set out by the Board of Appeal in the contested decision. The Board of Appeal rightly found that the signs at issue were either different for the public able to read the Cyrillic alphabet or incomparable in so far as the remainder of the public was not able to pronounce the word element ‘раковЫе шейки’.

59      In relation to the conceptual comparison of the signs, the Board of Appeal was also right to consider, in paragraph 32 of the contested decision, that the signs were conceptually similar to the extent that they both contained representations of crayfish and that their word elements were meaningless for the parts of the relevant public who did not understand Russian or Bulgarian so as to be able to grasp the meaning of the word element ‘раковЫе шейки’ or who did not understand English or French so as to be able to understand the word element ‘crabs’.

60      However, contrary to what the applicant asserts, it cannot be considered that the Board of Appeal took the view that the signs at issue were conceptually identical. Reference needs to be made in this regard to the content of the contested decision, in which the Board of Appeal found that the signs at issue were only similar and not identical.

61      Finally, it must be found that, in its analysis of the overall impression conveyed to the relevant public by complex marks, which may each be dominated by one or more of their components, the Board of Appeal did not adopt an approach which was ‘too analytical’, as argued by the applicant, but correctly adhered to the principles applicable to such an analysis (see paragraphs 21, 29 and 30 above).

62      In that regard, the applicant cannot merely claim that, because its level of attention would be low, the relevant public would not be able to identify the differences found to exist between the signs at issue in the present case. None of its arguments supports such a claim and is such as to call into question the findings made by the Board of Appeal in the contested decision following its examination of the signs at issue from the point of view of the relevant public.

63      In conclusion, the Board of Appeal was entitled to conclude that, when compared as a whole, the signs at issue were only similar to a low degree. The applicant’s arguments seeking to call that assessment into question must therefore be rejected.

 The distinctiveness of the earlier right

64      The applicant submits that the Board of Appeal should have taken into consideration that the image of red crayfish was highly distinctive with regard to the goods in question. It maintains that the Board of Appeal should also have established that the earlier mark was distinctive on the basis of the documents submitted by the intervener to EUIPO on 17 June 2015, which, in its view, established that there has been long-standing use of the earlier mark. It submits that the earlier mark, which was registered in 2011, had been used continuously since then, which was sufficient to show that it had a highly distinctive character. In its view, the documents filed by the intervener also showed that the word element ‘раковЫе шейки’ had been used by a number of manufacturers of candy. It claims that that element and the word element ‘crabs’ did not therefore have any distinctiveness in connection with such goods. In that regard, by letter of 1 September 2017, on which the other parties were able to submit observations, on 6 October 2017 in the case of EUIPO and on 9 October and 14 November 2017 in the case of the intervener, the applicant informed the Court that the EU figurative mark registered on 7 July 2017 under number 15948185, of which it was the proprietor and which covered goods in Class 30, confirmed that the element consisting of a crayfish in the earlier right was distinctive on its own for the trade circles addressed.

65      EUIPO observes that the Board of Appeal was right in finding that a mark does not have a higher degree of distinctiveness just because it has no conceptual link to the relevant goods. It submits that, as regards the alleged long-standing use of the earlier mark, the Board of Appeal considered that the evidence provided, which relates to Russia, Ukraine and Belarus, did not relate to the territories which are relevant for the purpose of the analysis.

66      The intervener claims that the applicant has not submitted sufficient evidence to prove the alleged enhanced distinctiveness of the earlier mark. The intervener states, however, that, even though it is in principle satisfied with the contested decision and does not have the right to contest it, it is still of the view that the earlier mark is weakly distinctive. It maintains that, on candies, the word element ‘раковЫе шейки’ and the visual element representing a crayfish lacked distinctiveness because they had been used continuously in various forms since the 19th century and the invention of those candies by Mr Alexei Abrikosov, the owner of Russia’s largest confectionery factory. It submits that the applicant was not the only undertaking which had produced such candies and that it could not therefore claim that its mark had inherent or enhanced distinctiveness. It takes the view that the Board of Appeal incorrectly concluded that the territories of Russia, Belarus and Ukraine had no relationship with the territories which were relevant for the purpose of the analysis as the evidence filed in that regard referred to the period of the Soviet Union, a period during which Lithuania, Latvia and even Bulgaria had close links with the Soviet Union.

67      As is apparent from recital 8 of Regulation No 207/2009, the assessment of the likelihood of confusion depends on numerous factors, in particular the public’s recognition of the trade mark on the market in question. Since the more distinctive the earlier mark the greater the likelihood of confusion, 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 judgment of 24 November 2016, CG v EUIPO — Perry Ellis International Group (P PRO PLAYER), T‑349/15, not published, EU:T:2016:677, paragraph 66 and the case-law cited).

68      In the present case, in paragraph 36 of the contested decision, the Board of Appeal considered that the evidence filed during the opposition proceedings in relation to the alleged weak distinctiveness of the word element ‘раковЫе шейки’ did not concern the relevant territories for the assessment of the likelihood of confusion (namely, Bulgaria, Benelux, Germany, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Poland, Portugal, Romania, Slovakia and the United Kingdom), but territories outside of the European Union (namely, Russia, Belarus and Ukraine). Such evidence should thus not have been taken into account in the assessment of the distinctiveness acquired by the earlier right within the territories of the Member States covered by that international registration, even if it were to be assumed that some of those Member States may be singled out in the light of their 20th century history.

69      The same reasoning holds true for the evidence filed by the intervener.

70      Consequently, in the absence of any relevant information in the file such as to establish the high degree of distinctiveness of the earlier right, the Board of Appeal was entitled to conclude, in paragraph 38 of the contested decision, that that assessment was based on its inherent distinctiveness. Since the earlier sign was neither descriptive of nor allusive to the goods concerned, it possessed a normal degree of inherent distinctiveness.

71      The applicant’s arguments seeking to call that assessment into question must therefore be rejected.

72      There is no need to adjudicate in that regard on the elements communicated during the proceedings in the intervener’s letter of 1 September 2017, which concern an EU trade mark registered after the adoption of the contested decision. In addition to the fact that that mark, of which the intervener is the proprietor, is currently being challenged in annulment proceedings brought by the applicant, which the latter was able to indicate to the Court in its observations of 14 November 2017, it should be noted that, although the Court assesses the legality of the decision of the Board of Appeal by reviewing the application of EU law made by the Board of Appeal in the light, inter alia, of the facts which were submitted to it, it cannot, by contrast, carry out such a review by taking account of new facts produced before it (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 54 and the case-law cited).

 The global assessment of the likelihood of confusion

73      The applicant submits that the Board of Appeal erred in finding that there was no direct or indirect likelihood of confusion.

74      First, the applicant claims that, having regard to the identity of the goods at issue, the at least average degree of similarity between the signs at issue, the conceptual identity between those signs and the at least normal distinctiveness of the earlier right, the Board of Appeal did not correctly assess whether there was a likelihood of confusion between the rights at issue. It maintains that the contested right copied the structure of the earlier right by merely rearranging the representations of crayfish in the centre of the sign. It claims that, owing to the low level of attention of the relevant public and the fact that the goods in question are usually bought on sight, there was therefore a direct likelihood of confusion between the rights at issue. It submits that, in addition, the Board of Appeal’s assessment that there was no likelihood of confusion was contradictory, because the Board of Appeal found that all the criteria that were necessary for it to be established that there was a likelihood of confusion — the similarity between the signs at issue, the similarity between the goods at issue and the distinctiveness of the earlier right — had been satisfied, but did not, however, find that such a likelihood of confusion existed. Furthermore, the applicant takes the view that, even if the differences between the signs at issue outweighed the similarities, those signs would still be similar and, as the goods at issue were identical, even a very low degree of similarity between the signs would be sufficient to establish a likelihood of confusion.

75      Secondly, the applicant also claims that the Board of Appeal did not take into consideration that there was a risk of indirect likelihood of confusion between the rights at issue.

76      It submits that, taking into consideration the undisputed long-standing use of the earlier mark, the identity of the goods at issue, the degree of distinctiveness of the earlier trade mark, the conceptual identity between the signs and the at least average degree of similarity between those signs, the relevant public would automatically assume that there were legal or economic links between the parties to the opposition proceedings. Furthermore, the applicant maintains that, even if the relevant public were to see the differences between the signs at issue pointed out in the contested decision, it would assume that the contested trade mark were a mere modernisation or playful variation of the earlier mark, in particular if it noticed the asymmetrical vertical alignment of the three or four crayfish in the centre of the sign.

77      EUIPO and the intervener dispute those arguments.

78      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 may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM — LicoreraZacapaneca (VENADO with frame and others), T-81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

79      In the present case, as rightly pointed out by the Board of Appeal in paragraph 43 of the contested decision, despite the identity of the goods at issue and the relevant public’s low level of attention with regard to some of those goods, there was no likelihood of confusion. As found by the Board of Appeal, the signs at issue left a significantly different overall impression on the relevant public.

80      Accordingly, the applicant cannot ignore the fact that, unlike with the earlier right, the representations of one crayfish and a number of sweets with crayfish on their wrappers of the right applied for were perceived as serving purely decorative purposes.

81      Similarly, the applicant cannot validly dispute that ‘the most distinctive element of the contested sign [was] the word element ‘‘crabs’’ that has no equivalent in the earlier sign’, that ‘the signs [at issue] differ[ed] significantly in their whole structure and composition (different arrangement and size of the crayfish depicted, different position and size of the word elements in relation to the figurative elements, different additional figurative elements) and by their colour scheme (white, red and black versus white, red and yellow); that ‘the word ‘‘crabs’’ [was] written in large letters in the upper part of the contested sign’, that that word ‘[was] significantly larger than the representations of one crayfish and … sweets with crayfish on their wrappers’, ‘whereas in the earlier sign the representations of crayfish [were] the largest individual elements’, and that, ‘whereas the earlier sign evoke[d] a symmetric and orderly impression, the contested sign convey[ed] a more dynamic and unsystematic impression’. Therefore, the Board of Appeal was well founded in considering that the contested sign was easy to distinguish visually from the earlier sign.

82      Moreover, as noted by the Board of Appeal, the signs at issue were not phonetically similar, since for one part of the relevant public they were aurally dissimilar, and for the other part a phonetic comparison was not possible. Furthermore, the Board of Appeal was equally correct to find that the conceptual similarity was limited to the presence of the depiction of crayfish in both signs.

83      Consequently, in the light of the foregoing considerations, the Board of Appeal was entitled to conclude, in paragraph 44 of the contested decision, that the differences between the signs, especially the clearly recognisable visual differences in their structures and their overall impressions, outweighed their similarities and, therefore, there was no likelihood of confusion in the relevant territory, even for identical goods.

84      That conclusion is not called into question by the claims made by the applicant in paragraphs 74 and 75 above which do not take account of the result of the global assessment of the likelihood of confusion, whether in respect of the comparison of the signs or the distinctiveness of the earlier right.

85      Accordingly, the plea alleging infringement of Article 8(1)(b) of Regulation No 207/2009 must be rejected as unfounded.

86      The action must therefore be dismissed.

 Costs

87      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Moscow Confectionery Factory ‘Krasnyiy oktyabr’ OAO to pay the costs.

Delivered in open court in Luxembourg on 7 February 2018.

*      Language of the case: English.

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