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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

22 March 2023 (*)

(EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark representing a band with an acute angle – Earlier EU and national figurative marks representing a band – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Article 8(5) of Regulation 2017/1001 – Legal certainty – Equal treatment – Principle of sound administration)

In Case T‑5/22,

Puma SE, established in Herzogenaurach (Germany), represented by P. González-Bueno Catalán de Ocón, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,

defendant,

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

Brooks Sports, Inc., established in Seattle, Washington (United States), represented by C. Spintig and S. Pietzcker, lawyers,

THE GENERAL COURT (Third Chamber),

composed, at the time of the deliberations, of G. De Baere, President, G. Steinfatt (Rapporteur) and K. Kecsmár, Judges,

Registrar: R. Ūkelytė, Administrator,

having regard to the written part of the procedure,

further to the hearing on 8 November 2022,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Puma SE, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 October 2021 (Case R 910/2021-4) (‘the contested decision’).

 Background to the dispute

2        On 18 December 2018, the intervener, Brooks Sports, Inc., obtained from the International Bureau of the World Intellectual Property Organization (WIPO) international registration No 1 441 912 designating the European Union in respect of the figurative mark reproduced below:

3        The registration covers goods in Classes 18 and 25 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, corresponding, for each of those classes, to the following description:

–        Class 18: ‘Backpacks; duffel bags; drawstring bags’;

–        Class 25: ‘Footwear; clothing, namely, tops, pants, jackets, headwear, shorts, tights, sweat shirts, leggings, rainwear’.

4        On 3 January 2019, EUIPO received notification of the international registration at issue, pursuant to the fourth sentence of Article 3(4) of the Protocol relating to the Madrid Agreement concerning the international registration of marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22), as amended on 12 November 2007. The international registration was published in European Union Trade Marks Bulletin No 2019/002 of 4 January 2019.

5        On 3 May 2019, the applicant filed a notice of opposition, pursuant to Article 196 of 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), read in conjunction with Article 46 of that regulation, to protection of the international registration in the European Union in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on, inter alia, the following two earlier figurative marks:

–        the EU figurative mark reproduced below, which was registered on 31 January 2010 under the number 8 461 469 and covers, inter alia, goods in Class 18 and 25 corresponding, for each of those classes, to the following description:

–        Class 18: ‘Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides; trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddlery; bags (included in class 18), and other containers not specifically designed for the objects to be carried, and small leather goods, included in class 18; purses, pocket wallets, cases for keys, carrying bags, travel bags, sports bags and pouches, included in class 18, duffel bags, rucksacks, satchels, belt bags, toilet bags’;

–        Class 25: ‘Clothing; footwear; boot uppers; footwear uppers; inner soles; non-slipping devices for boots and shoes; soles for footwear; studs for football boots (shoes); headgear’:

–        the German figurative mark reproduced below, which was registered on 23 May 1978 under the number 971 406 and covers goods in Class 25 corresponding to the following description: ‘Shoes, in particular sports and leisure shoes’:

7        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and (5) of Regulation 2017/1001.

8        On 30 March 2021, the Opposition Division rejected the opposition brought by the applicant.

9        On 18 May 2021, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.

10      By the contested decision, the Board of Appeal dismissed the appeal in its entirety. It found that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 on account of the visual dissimilarities between the signs at issue, as those signs were not capable of being compared phonetically and conceptually. Furthermore, in the light of those dissimilarities, the Board of Appeal found that one of the conditions set out in Article 8(5) of Regulation 2017/1001 had not been satisfied.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO and the intervener to pay the costs.

12      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 The subject matter of the proceedings

13      On 25 October 2022, EUIPO lodged an application for a declaration that there was no need to adjudicate on part of the action in so far as the protection of the international registration had been restricted, on 31 August 2022, to only ‘footwear’ in Class 25.

14      At the hearing, the applicant and the intervener stated that they did not oppose that application.

15      In so far as the present action seeks the annulment of the contested decision to the extent that it rejected the opposition to protection of the international registration in the European Union in respect of goods other than the ‘footwear’ in Class 25 covered by that registration, it has become devoid of purpose following the restriction of protection to those goods alone. To that extent, there is therefore no longer any need to adjudicate.

 Substance

16      The applicant relies on three pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001, secondly, infringement of Article 8(5) of that regulation and, thirdly, infringement of the principles of legal certainty, of equal treatment and of sound administration.

 Preliminary observations

17      In the first place, EUIPO submits that Annex A 5 to the application has been produced for the first time before the Court, with the result that the documents which it contains are inadmissible.

18      It is apparent from the case file that those documents were not submitted in the course of the proceedings before the adjudicating bodies of EUIPO.

19      The purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, they must be excluded and there is no need to assess their probative value (see, to that effect, judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited).

20      In the second place, the applicant’s arguments based on United Kingdom figurative mark No 980 191, which it had relied on when it filed the notice of opposition, must be rejected as inadmissible. In paragraph 15 of the contested decision, the Board of Appeal found, confirming the Opposition Division’s decision in that regard, that that mark did not constitute a valid basis for the opposition. It therefore found that the opposition was based solely on the earlier marks which have been referred to in paragraph 6 above, a finding which the applicant has not, moreover, disputed in the application initiating proceedings. Furthermore, the applicant also did not base its appeal before EUIPO on its United Kingdom trade mark, with the result that the Board of Appeal did not need to reconsider that matter. On the contrary, in its appeal against the Opposition Division’s decision, the applicant stated that, since the United Kingdom’s withdrawal from the European Union, its United Kingdom trade mark had no longer constituted a valid basis for the opposition.

21      It is not for the Court, in its review of the legality of the contested decision, to carry out an assessment on which the Board of Appeal has not adopted a position (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72). Accordingly, in the context of the action before the Court, the Court cannot take the applicant’s arguments based on its United Kingdom trade mark into account.

 The first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001

22      The first plea consists of three parts. The applicant submits that, in the contested decision the Board of Appeal, first, did not identify the relevant public, secondly, did not correctly assess the visual similarities between the marks at issue and, thirdly, did not assess whether the earlier marks had enhanced distinctiveness.

–       The first part of the first plea, alleging failure to identify the relevant public

23      The applicant submits that the contested decision does not make any reference to the relevant public or that public’s level of attention. It argues that the Board of Appeal did not take into account either the relevant public’s level of attention or the category of goods at issue, which are mass consumption goods that are usually impulse purchases, the price of which is generally affordable and which are aimed at the general public displaying an average level of attention.

24      In that regard, it submits that the consumer who is normally attentive does not pay attention to details which are difficult to notice and often does not have the opportunity to see both marks side by side when deciding to make a purchase, with the result that he or she must rely on his or her imperfect recollection of them.

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

26      Article 196(1) of Regulation 2017/1001 provides that international registrations designating the European Union are to be subject to opposition in the same way as published EU trade mark applications.

27      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade 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 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.

28      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. 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).

29      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, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

30      It follows that, in order to assess the likelihood of confusion, it is necessary to ascertain the relevant public at which the goods at issue are aimed.

31      In the present case, the Board of Appeal reproduced, in paragraph 8 of the contested decision, the Opposition Division’s assessment that, inter alia, the goods in Class 25 were identically covered by the earlier marks and that they were aimed at the general public, the level of attention of which was considered to be average. As EUIPO correctly points out, the Board of Appeal therefore implicitly, but necessarily, endorsed the Opposition Division’s assessment, particularly because the Opposition Division’s findings had not been disputed before the Board of Appeal by the applicant and the Board of Appeal had found that the Opposition Division was right in rejecting the opposition. In those circumstances, it must be held that the Board of Appeal endorsed the Opposition Division’s finding as regards the relevant public and its level of attention, in spite of the lack of any express finding in that regard in the contested decision.

32      That finding is borne out by paragraph 23 of the contested decision, in which the Board of Appeal pointed out that the relevant public would perceive the signs at issue ‘without further thought and in-depth analysis’. The applicant therefore errs in claiming that the Board of Appeal did not take the relevant public or its level of attention into account in its assessment.

33      Since the Board of Appeal took into account the relevant public’s average level of attention with regard to the goods at issue, there is, moreover, no contradiction with the judgment of 25 February 2016, Puma v OHIM – Sinda Poland (Representation of an animal) (T‑692/14, not published, EU:T:2016:99, paragraph 25), on which the applicant relies and according to which, with regard to footwear and sports footwear as mass consumption goods, the level of attention to be taken into account in the assessment of the likelihood of confusion is average.

34      It follows that the first part of the first plea cannot be upheld.

–       The second part of the first plea, alleging that the visual comparison of the signs at issue was incorrect

35      The applicant submits that the marks at issue are similar to, at least, an above average degree. It argues that, since the differences between them are not sufficiently significant to offset the similarities between them, the general visual impression is similar or very similar. It contends that the Board of Appeal’s conclusion, in paragraphs 26 and 28 of the contested decision, that there are no similarities between the marks is therefore incorrect.

36      First, it submits that the signs at issue both consist of a relatively curved white band with black contours, which starts on the right-hand side and bends towards the left-hand side, that the inclination is practically the same and that the band widens at the end. It claims that the fact that the sign applied for stretches the curve towards the left at the top does not allow the conclusion that the marks are substantially different, let alone that they do not display any, even slight, similarities.

37      Secondly, the applicant contends that when the marks at issue are placed one on top of the other it is possible to notice that only an ending has been added to the earlier mark, just as a syllable is added to a word mark.

38      Thirdly, the applicant submits that the actual examination of the marks carried out by consumers in a market which is characterised by rapid transactions should have been taken into account. It argues that that is especially the case with regard to mass consumption goods, which are often the subject of impulse purchases carried out without any detailed or meticulous analysis; rather, such purchases are at times the result of a spur-of-the-moment impulse or a spontaneous desire.

39      Fourthly, the applicant claims that the similarity is particularly obvious if the sign applied for is affixed to footwear. It submits that it is necessary to consider the possibility that the signs at issue may occupy the same place on the same type of goods. According to the applicant, the use of the mark applied for on a shoe partially covered by a pair of trousers gives a visual impression which is very similar to that of the earlier marks, since only the lower part of the sign applied for is visible and the stretching of the curve towards the left is hidden. The applicant contends that, in order to ensure that there is no likelihood of confusion, the manner in which the marks may appear to consumers should not be entirely disregarded.

40      Fifthly, the applicant claims that the Board of Appeal distorted the description of the earlier German mark in paragraph 20 of the contested decision by finding that that mark is internally shaded with dots. It submits that it did not intentionally apply for the registration of that mark with dots, but that their appearance is due to the technical imperfections in the visual representation of the sign when that earlier mark was filed in 1977.

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

42      According to the case-law, the global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, 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 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).

43      It is important to point out at the outset that the applicant does not dispute the Board of Appeal’s assessment that it is not possible to carry out a phonetic and conceptual comparison of the marks at issue since they do not comprise any pronounceable elements and have no discernible semantic content. However, the applicant disputes the Board of Appeal’s finding that the signs are visually dissimilar.

44      In that regard, the Board of Appeal pointed out, in paragraphs 22 and 23 of the contested decision, that the signs at issue overlapped to the extent that they all featured a horizontal base line, albeit of different widths, and variations of simple parallel lines which inclined towards the right. However, it found that the earlier marks featured curved contours which narrowed into stripes, pipe-like. It took the view that the earlier signs were visibly narrower and continued to narrow until they were cut off. The lines in the earlier marks formed a curve which continued in the same direction. By contrast, it found that the sign applied for featured lines which inclined to the right before then swerving in the opposite direction to form an acute angle. It took the view that the sign applied for differed from the earlier signs in how far apart the lines were (the breadth of the stripe), the angle of the rise, the curved course and its inclination. Moreover, according to the Board of Appeal, the inner part of the earlier German mark differed in that it was dotted, unlike the sign applied for. The Board of Appeal concluded that the signs at issue created very different overall impressions.

45      In order to provide reasons for the alleged visual similarity, the applicant relies on a description of the signs at issue (see paragraphs 36 and 37 above) that disregards the overall impression created by the sign applied for, which is, however, decisive.

46      According to the applicant, the sign applied for consists of a band which starts on the right-hand side and bends towards the left-hand side and which stretches the curve to the left at the top. However, the applicant artificially divides the sign applied for, separating that sign into two parts, namely a first part corresponding to a band which starts on the right-hand side and bends towards the left-hand side and a second part which the applicant describes as a mere stretching of the band towards the left.

47      In accordance with the case-law cited in paragraph 42 above, the average consumer will perceive the sign applied for as a whole. Taking the overall impression into account, it must be held that that sign forms a hook, which excludes any similarity, even a slight similarity, between it and the earlier signs. The upper part of the sign applied for is not merely the stretching of a band, but is rather an integral and important part of that sign, which confers on it an overall impression that is very different from that of the earlier marks, which contain bands which extend strictly in the same direction.

48      Furthermore, the applicant has not disputed the Board of Appeal’s finding, in paragraph 21 of the contested decision, that the signs at issue consisted of variations of simple geometric shapes, with the result that even small differences were capable of leading to significant differences in their perception.

49      Consequently, the Board of Appeal was right in finding, in paragraphs 22 and 23 of the contested decision, that the signs at issue were very dissimilar visually.

50      As regards the applicant’s claim that placing the marks at issue one on top of the other shows that the earlier marks are completely included in the sign applied for, it must be stated, as pointed out by the intervener and EUIPO, that the upper parts of the marks beyond the area of overlap extend in different directions. Consequently, the argument that the earlier marks are completely included in the sign applied for cannot be accepted. Moreover, as has been pointed out in paragraph 47 above, the sign must be perceived as a whole and cannot be broken down. Furthermore, EUIPO is right in pointing out that the signs at issue are figurative signs, with the result that the applicant’s argument based on the comparison with syllables forming word marks must be rejected.

51      As regards the applicant’s argument that the Board of Appeal should have taken into account the actual examination which is carried by consumers of mass consumption goods in a market which is characterised by rapid transactions and impulse purchases that are carried out without any detailed or meticulous analysis, it is sufficient to point out that the Board of Appeal, just like the applicant, categorised the relevant public’s level of attention as average (see paragraphs 31 to 33 above).

52      So far as concerns the applicant’s argument which is based on the premiss that the upper part of the sign applied for could be hidden by a long pair of trousers if the sign were affixed to the lateral part of a shoe or the argument that, in order to assess whether there is a likelihood of confusion, the manner in which the marks may appear to consumers should not be entirely disregarded, the Board of Appeal found, in accordance with settled case-law, which EUIPO has correctly referred to, that the signs must be compared as they were filed or registered and that there is no need to take into account the way in which they may be used on the market (see judgment of 16 October 2018, Asics v EUIPO – Van Lieshout Textielagenturen (Representation of four crossed lines), T‑581/17, not published, EU:T:2018:685, paragraphs 42 and 43 and the case-law cited).

53      Lastly, the allegation that the description of the earlier German mark was distorted, in that the Board of Appeal found, in paragraph 20 of the contested decision, that the sign was internally shaded with dots, must be also be rejected.

54      It is the representation of the sign as registered which, in accordance with the case-law cited in paragraph 52 above, is decisive. It is apparent from the case file and from the representation of the earlier German mark as registered, which was produced by the applicant, that dots are visible inside the sign. In that regard, it must be stated that the trade mark applicant’s intention is irrelevant.

55      Consequently, the Board of Appeal was right in finding, in paragraph 26 of the contested decision, that the signs at issue were visually dissimilar and therefore that those signs were dissimilar, with the result that no likelihood of confusion could be found to exist.

56      It follows from the foregoing that the second part of the first plea must be rejected.

–       The third part of the first plea, alleging failure to assess the distinctive character of the earlier marks

57      The applicant complains that the Board of Appeal did not assess the distinctive character of the earlier marks. It submits that those marks have, first, a high degree of inherent distinctiveness and, secondly, enhanced distinctiveness acquired through use.

58      In that regard, it disagrees with the finding in paragraph 21 of the contested decision that the earlier marks are simple curvilinear shapes consisting of variations of simple geometric shapes. It submits that the sign which constitutes the earlier marks represents a specific and thought-out technical concept. It argues that the inclination and composition of the band are not a coincidence or the result of a pre-existing figure.

59      The applicant contends that the earlier marks also have a highly distinctive character because of their reputation on the market. It submits that the assessment of the distinctiveness of the earlier marks, either inherent or acquired through use, is particularly relevant in cases in which there is only a low degree of similarity between the signs and in which it must be ascertained whether that low degree can be compensated for by a high degree of similarity between the goods. The applicant argues that the Board of Appeal should, in that context, have assessed the evidence of use of the earlier marks which it had submitted.

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

61      In that regard, it is sufficient to state, as observed by EUIPO and the intervener, that, having correctly found that the marks at issue were dissimilar, the Board of Appeal was not required to assess either the inherent distinctiveness of the earlier marks or whether they had any distinctive character acquired through use.

62      The Board of Appeal correctly relied, in paragraph 28 of the contested decision, on the settled case-law that there can be no likelihood of confusion between the marks at issue, irrespective of the enhanced distinctiveness of the earlier marks or the identity of the goods, where, as a consequence of the dissimilarity between the signs, one of the necessary conditions laid down in Article 8(1)(b) of Regulation 2017/1001 is not satisfied (see judgments of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 53 and the case-law cited, and of 23 January 2014, OHIM v riha WeserGold Getränke, C‑558/12 P, EU:C:2014:22, paragraph 42 and the case-law cited).

63      Consequently, as the Board of Appeal correctly found in paragraph 29 of the contested decision, there was no need to examine the evidence submitted by the applicant as regards the use of the earlier marks or to decide whether that evidence could justify a finding of distinctive character acquired through use of the earlier marks in relation to the goods covered in Class 25.

64      In view of the foregoing, the third part of the first plea and therefore the first plea as a whole must be rejected.

 The second plea, alleging infringement of Article 8(5) of Regulation 2017/1001

65      The applicant complains that the Board of Appeal did not examine the evidence which had been submitted in order to prove that its marks have an exceptional reputation. It submits that the Board of Appeal also did not analyse the applicant’s arguments and merely repeated, in summary form, in paragraphs 33 and 34 of the contested decision, the conclusions reached by the Opposition Division.

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

67      In that regard, it must be borne in mind that, according to the case-law, where any similarity between the signs at issue is ruled out, Article 8(5) of Regulation 2017/1001 is, like Article 8(1)(b) of that regulation, manifestly inapplicable. It is only if there is some similarity, even faint, between the marks at issue that it is necessary to carry out an overall assessment in order to ascertain whether, notwithstanding the low degree of similarity between them, there is, on account of the presence of other relevant factors such as the renown or reputation enjoyed by the earlier mark, a likelihood of confusion or a link made between those marks on the part of the relevant public (see judgment of 24 September 2019, Volvo Trademark v EUIPO – Paalupaikka (V V-WHEELS), T‑356/18, EU:T:2019:690, paragraph 20 and the case-law cited). Consequently, it is sufficient to state that the Board of Appeal was right in finding that the application of Article 8(5) of Regulation 2017/1001 was subject to five cumulative conditions, the first of which requires the mark applied for to be identical or similar to the earlier mark and that, since the signs at issue were dissimilar, the application of that provision was excluded.

68      To the extent that the Board of Appeal assessed whether the earlier marks had a reputation, that assessment was made for the sake of completeness, as is clear from paragraph 32 of the contested decision. Consequently, the applicant’s criticism in that regard is ineffective.

69      The second plea, alleging infringement of Article 8(5) of Regulation 2017/1001, cannot therefore be upheld.

 The third plea, alleging infringement of the principles of legal certainty, of equal treatment and of sound administration

70      The applicant complains that the Board of Appeal did not carry out a comprehensive analysis of all the documentation and previous decisions of the Opposition Division and the Boards of Appeal of EUIPO on which the applicant had relied in support of its argument that the earlier marks had an exceptional reputation.

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

72      It is clear from paragraphs 62 and 67 above, respectively, that the Board of Appeal was right in finding that the application of Article 8(1)(b) and Article 8(5) of Regulation 2017/1001 was excluded. Furthermore, it is clear from paragraph 68 above that it was only for the sake of completeness that the Board of Appeal examined the evidence seeking to prove that the earlier marks had a reputation for the purposes of Article 8(5) of Regulation 2017/1001. The applicant’s argument seeking to claim that, in the context of that assessment, the Board of Appeal did not duly take into account the previous decisions on which it had relied is therefore ineffective.

73      Consequently, the third plea, alleging infringement of the principles of legal certainty, of equal treatment and of sound administration, must be rejected.

74      In view of all of the foregoing considerations, since none of the pleas relied on by the applicant in support of the form of order which it seeks can be upheld, the action must be dismissed.

 Costs

75      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.

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

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Declares that there is no longer any need to adjudicate on the action in so far it seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 October 2021 (Case R 910/2021-4) to the extent that it dismissed the appeal against the Opposition Division’s decision of 30 March 2021 in respect of goods other than ‘footwear’;

2.      Dismisses the action as to the remainder;

3.      Orders Puma SE to pay the costs.

Delivered in open court in Luxembourg on 22 March 2023.

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.