Travel Service v OHMI - Eurowings Luftverkehrs (smartWings) (Intellectual property) [2010] EUECJ T-72/08 (13 September 2010)

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(Community trade mark – Opposition proceedings – Application for the Community figurative mark smartWings – Earlier national and international word and figurative marks EUROWINGS and EuroWings – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) – Obligation to state the reasons on which the decision is based – Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) – Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009))

Travel Service a.s., established in Prague (Czech Republic), represented by S. Hejdová and R. Charvát, lawyers,

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by A. Folliard-Monguiral, acting as Agent,

Eurowings Luftverkehrs AG, established in Nuremberg (Germany), represented by J. Schmidt, lawyer,

1 On 9 March 2004, the applicant, Travel Service a.s., filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), under Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

3 The goods and services for which registration was sought fall within Classes 16, 21, 37, 39, 41 and 43 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, to the following description:

4 The trade mark application was published in Community Trade Marks Bulletin No 49/2004 of 6 December 2004.

5 On 11 January 2005, the intervener, Eurowings Luftverkehrs AG, filed a notice of opposition under Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009), against registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

7 The opposition was based on all the goods and services designated by the earlier marks.

8 The grounds of the opposition were those referred to in Article 8(1)(b) and (5) of Regulation No 40/94 (now Article 8(1)(b) and (5) of Regulation No 207/2009).

9 On 29 September 2006, the Opposition Division issued its decision, authorising registration of the trade mark applied for only in respect of the following goods and services: ‘paper, paper matter such as table cloths of paper, stationery, office requisites especially writing materials, pencils, pens; writing books’ in Class 16; ‘porcelain ware, glass, hand-operated kitchen utensils, namely bottle openers, vases, cups not of precious metal’ in Class 21; ‘airplane maintenance and repair, repair and maintenance of electronical goods’ in Class 37; ‘rescue of persons’ in Class 39 and ‘interpretations, translations’ in Class 41. Essentially, the Opposition Division considered that, because of the similarity between the earlier marks EUROWINGS and Eurowings and the trade mark applied for, there was a likelihood of confusion with regard to the identical or similar goods and services. On the other hand, the Opposition Division held that there was no likelihood of confusion between the earlier trade mark WINGSCLASS and the trade mark applied for because of their differences and the fact that they designated dissimilar goods and services.

10 On 22 November 2006, the applicant filed a notice of appeal at OHIM, under Articles 57 to 62 of Regulation No 40/94 (now Articles 58 to 64 of Regulation No 207/2009) against the Opposition Division’s decision.

11 On 21 November 2007, the Board of Appeal gave its decision (‘the contested decision’) dismissing that appeal and upholding the Opposition Division’s decision. The Board of Appeal held that the similarity between, on one hand, the earlier trade marks EUROWINGS and Eurowings and, on the other hand, the trade mark applied for, was liable to create a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94.

12 Specifically, the Board of Appeal held, in paragraph 23 of the contested decision, that those trade marks were clearly similar because of the identity of the word ‘wings’. According to the Board of Appeal, this is the principal and dominant element of each sign, whereas the words ‘euro’ and ‘smart’ play only secondary roles. The slight differences ‘between the style of font and the negligible figurative element’ in the trade mark applied for do not serve to ‘override this similarity’. Accordingly, paying less attention to the secondary verbal and stylistic elements, consumers will believe, according to the Board of Appeal, that the goods and services derive from the same trader, who is defined by the word ‘wings’, and will assume that the marks at issue are mere variations on the same mark. Lastly, the Board of Appeal held that, even if it were true that the word ‘wings’ had weak distinctive character, that nevertheless does not rule out a likelihood of confusion.

16 Since Judge Tchipev was prevented from attending after the oral procedure was closed, the case was reallocated to Judge Meij, the President of the Chamber, as Judge Rapporteur, and Judge Truchot was designated to complete the Chamber, in accordance with Article 32(3) of the Rules of Procedure of the Court.

17 By order of 5 July 2010, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing on 1 September 2010.

18 The applicant, by letter of 9 July 2010, and OHIM and the intervener, by letters of 15 July 2010, notified the Court that they waived their right to present again oral argument.

19 Consequently, the President of the Sixth Chamber decided to close the oral procedure.

20 As a preliminary point, it must be noted that, although the first head of claim seeks that the Court alter the contested decision by annulling the Opposition Division’s decision and rejecting the opposition, the applicant is in fact seeking, as it furthermore confirmed at the hearing in reply to a question asked by the Court, the annulment of the contested decision, formal notice of which has been taken.

21 In addition, by its second head of claim, the applicant seeks an order for costs against the intervener with regard to the opposition proceedings and appeal before OHIM.

22 It should be observed that, under Article 136(2) of the Rules of Procedure of the General Court, ‘costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal and costs incurred for the purposes of the production, prescribed by the second subparagraph of Article 131(4), of translations of pleadings or other documents into the language of the case shall be regarded as recoverable costs’. The costs incurred for the purposes of opposition proceedings cannot therefore be regarded as recoverable costs (Case T-�164/03 Ampafrance v OHIM – Johnson & Johnson (monBeBé) [2005] ECR II-�1401, paragraph 27).

23 The applicant’s second head of claim regarding costs must therefore be rejected as inadmissible in so far as it concerns the costs incurred in respect of the opposition proceedings.

24 In support of its action, the applicant puts forward two pleas in law, alleging, respectively, infringement of Article 8(1)(b) of Regulation No 40/94 and infringement of essential procedural requirements, namely, first, infringement of Article 73 of Regulation No 40/94 (now Article 75 of Regulation No 207/2009) and, secondly, infringement of Article 79 of Regulation No 40/94 (now Article 83 of Regulation No 207/2009).

The first plea, alleging infringement of Article 8(1)(b) of Regulation No 40/94

25 The applicant takes the view, in essence, that there is no likelihood of confusion between the earlier marks and the trade mark applied for as those marks are not identical or similar.

26 First, the applicant disputes the finding of the Board of Appeal as regards the existence of a likelihood of confusion on the ground that the signs concerned have in common the dominant element ‘wings’. The applicant submits that the term ‘wings’ cannot be regarded as the dominant element of the marks at issue, since it is of descriptive character with regard to the goods and services relating to air transport. In those circumstances, its capacity to distinguish those goods and services is very limited. In support of that argument, the applicant observes that the word ‘wings’ is used in many marks registered in the European Union, and in unregistered marks, in the air transport services sector.

27 The applicant submits that the word element ‘smart’ must be considered to be the fanciful element of the trade mark applied for. Its combination with the term ‘wings’ makes the trade mark highly distinctive. In addition, the relevant consumer will also pay attention to the wave and colours of the trade mark applied for. Those elements must be considered to be dominant and distinctive.

28 Furthermore, the applicant maintains that, in the earlier marks, the prefix ‘euro’ and the word ‘wings’ have, both standing alone and taken together, a weak distinctive character. Those words should therefore be granted limited protection.

29 Next, the applicant claims that there are visual, phonetic and conceptual differences between the marks at issue. As far as the visual comparison is concerned, the applicant points out, inter alia, that according to case-law, consumers attach more importance to the first part of words, in the present case the prefix ‘euro’ in the earlier marks and the term ‘smart’ in the trade mark applied for. The applicant takes the view that there is also an obvious difference phonetically. It submits that the word elements ‘smart’ and ‘euro’ are at the beginning of the marks at issue, so that their pronunciation produces a more direct impact in the mind of consumers than the second part of those marks, consisting in the word ‘wings’. It follows from the foregoing that the marks at issue are not similar conceptually.

30 Lastly, the applicant submits that, on account of the weak distinctive character of the common element ‘wings’, the relevant public, which will moreover display a greater level of attention than average consumers, will pay more attention to the elements differentiating the marks at issue and will not be led to believe that the goods and services covered by those marks originate from the same undertaking or from undertakings which are economically-linked. Therefore, there is no likelihood of confusion.

31 OHIM and the intervener contend that the first plea in law should be rejected.

32 Pursuant to Article 8(1)(b) of Regulation No 40/94, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to 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.

33 In addition, under Article 8(2)(a)(ii) and (iii) of Regulation No 40/94 (now Article 8(2)(a)(ii) and (iii) of Regulation No 207/2009), ‘earlier trade marks’ is to mean trade marks registered in a Member State, or trade marks registered under international arrangements which have effect in a Member State, with a date of application for registration which is earlier than the date of application for registration of the Community trade mark.

34 It is settled case-law that 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 line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services at issue, 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 (see Case T-�162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II-�2821, paragraphs 30 to 33 and the case-law cited).

35 In the present case, the applicant does not dispute either the finding of the Board of Appeal that the earlier mark WINGSCLASS differs from the trade mark applied for, or its finding that the goods and services designated by the earlier marks and the trade mark applied for are identical or similar.

36 By contrast, the applicant does object to the Board of Appeal’s assessment of the similarity, and the existence of a likelihood of confusion, between the earlier marks Euro Wings and EUROWINGS (‘the earlier opposing marks’) on one hand, and, on the other hand, the trade mark applied for.

37 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the marks at issue, must be based on the overall impression given by the marks, bearing in mind, in particular, the distinctive and dominant components (Case C-334/05 P OHIM v Shaker [2007] ECR I-�4529, paragraph 35 and the case-law cited).

38 The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see OHIM v Shaker, 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 (OHIM v Shaker, paragraph 42, and judgment of 20 September 2007 in Case C-193/06 P Nestlé v OHIM, not published in the ECR, paragraph 42). That might, in particular, be the case where that component is liable on its own to dominate the image of that mark which the relevant public keeps in mind, so that all the other components of the trade mark are negligible in the overall impression produced by it (Nestlé v OHIM, paragraph 43).

39 In the present case, it must first be noted that the trade mark applied for is complex in character inasmuch as it is composed of two word elements and a figurative element. The word elements consist in the succession of terms ‘smart’ and ‘wings’, whereas the figurative element follows from the combination of those terms and the use of colours and a sign. Both the word ‘smart’ and the word ‘wings’ are written in italic in blue. To the right of the term ‘wings’ there is a decorative element in the form of a zigzag, which is orange.

40 Secondly, each of the earlier opposing marks constitutes variants on the combination of the terms ‘euro’ and ‘wings’. In particular, the EuroWings marks contain, first, those two word elements represented with a slight gap between them and written in lower case, with the exception of the first letter of each term and, secondly, a figurative element, which corresponds to the use of italics on the second part of the sign, namely the word ‘wings’. The sign EUROWINGS, for its part, consists of a single word element.

41 Lastly, as is apparent, inter alia, from paragraph 23 of the contested decision, the Board of Appeal held that the marks at issue were similar for the purposes of Article 8(1)(b) of Regulation No 40/94, given, in particular, that the common element ‘wings’ dominated the overall impression produced by them. The applicant, for its part, argues in opposition to that finding that the differences between the marks at issue override their similarities and that, even if they share the common element ‘wings’, it cannot be considered to be dominant on account of its weak distinctive character.

42 The legality of the contested decision must be assessed in the light of those considerations.

43 Although the applicant submits that the ‘wings’ element is not such as to dominate the overall impression of the signs, it must be stated that, as far as the trade mark applied for is concerned, that element holds a more important position that the other constituent elements of the mark, namely the word ‘smart’ and the figurative element in the form of a zigzag. The term ‘wings’ is written in a large font and its first letter is in upper case. By contrast, as the Board of Appeal observed in paragraph 22 of the contested decision, the element ‘smart’ is written in a smaller font and therefore appears as a marginal addition. Furthermore, it must be pointed out, as it was by the Board of Appeal in paragraph 21 of the contested decision, that the ‘euro’ element of the earlier opposing marks is perceived as the usual abbreviation of ‘European’ or ‘Europe’ and indicates the European origin, or the supply throughout Europe, of the goods and services concerned (see, to that effect, Case T-�359/99 DKV v OHIM (Eurohealth) [2001] ECR II-�1645, paragraph 26, and Case T-�207/06 Europig v OHIM (EUROPIG) [2007] ECR II-�1961, paragraph 34). Consequently, that element is devoid of distinctive character with regard to the goods and services concerned.

44 The applicant states that the ‘wings’ element cannot be the dominant element of the marks at issue because of its descriptive character. In support of that contention, it points out that the term ‘wings’ forms part of many marks registered in the European Union.

45 It must be pointed out in this connection, without going so far as to examine the issue of whether the word ‘wings’ is descriptive for the relevant public, that, in any event, the possibly weak distinctive character of an element of a complex mark does not necessarily imply that that element cannot constitute a dominant element since – because, in particular, of its position in the sign or its size – it may make an impression on consumers and be remembered by them (see, to that effect, Case T-�115/02 AVEX v OHIM – Ahlers (a) [2004] ECR II-�2907, paragraph 20; Case T-�153/03 Inex v OHIM – Wiseman (Representation of a cowhide) [2006] ECR II-�1677, paragraph 32; and Case T-�134/06 Xentral v OHIM – Pages jaunes (PAGESJAUNES.COM) [2007] ECR II-�5213, paragraph 54).

46 Therefore, it is not necessary to rule on the possibly weak distinctive character of the word ‘wings’, since it is obvious, in view of the findings in paragraph 43 above, that that word is in the present case likely to make an impression on the relevant public and be remembered by them (see, to that effect, PAGESJAUNES.COM, paragraph 55, and Case T-�7/04 Shaker v OHIM – Limiñana y Botella (Limoncello della Costiera Amalfitana shaker) [2008] ECR II-�3085, paragraphs 44 and 45).

47 Concerning the applicant’s argument that the weak distinctive character of the word element ‘wings’ is demonstrated by the fact that that word forms part of many marks registered in the European Union, it is sufficient to observe that, according to case-law, the mere fact that there are earlier marks registered which contain a certain term is not enough to establish that that term lacks distinctive character (see, by analogy, judgment of 18 June 2009 in Case T-�418/07 LIBRO v OHIM – Causley (LiBRO), not published in the ECR, paragraph 74).

48 Having regard to the foregoing, it must be held that the Board of Appeal was correct to conclude that the word ‘wings’ was the dominant element of the marks at issue.

49 So far as the visual comparison of the marks at issue is concerned, the applicant asserts that the word element ‘smart’ and the figurative element in the form of a zigzag have greater distinctive character than the ‘wings’ element, without, however, submitting arguments or evidence in support of that contention. Having regard to the considerations in paragraphs 43 and 48 above, it must be concluded that the applicant has not shown that the Board of Appeal erred in holding that there were certain visual similarities between the marks at issue.

50 Furthermore, as regards the applicant’s argument that the consumer pays more attention to the initial part of a trade mark, it is settled case-law that that argument cannot hold in all cases (see judgment of 16 May 2007 in Case T-�158/05 Trek Bicycle v OHIM – Audi (ALLTREK), not published in the ECR, paragraph 70, and the case-law cited). It does not, in any event, cast doubt on the principle that the assessment of the similarity of marks must take account of the overall impression created by those marks, since the average consumer normally perceives a trade mark as a whole and does not analyse the different aspects of it (Case T-�363/06 Honda Motor Europe v OHIM – Seat (MAGIC SEAT) [2008] ECR II-�2217, paragraph 38). It thus follows that, since the marks at issue share the element ‘wings’, it cannot be denied that they are visually similar.

51 It must be concluded, in the light of the foregoing, that the Board of Appeal did not commit an error of assessment in holding that the marks at issue were visually similar.

52 As regards the phonetic and conceptual comparisons, the Court notes first of all that the Board of Appeal did not, in the contested decision, make such comparisons expressly. However, pursuant to case-law, where the Board of Appeal confirms the decision of an Opposition Division in its entirety, and in view of the continuity in terms of their functions between the Opposition Divisions and the Boards of Appeal – as demonstrated by Article 62(1) of Regulation No 40/94 (now Article 64(1) of Regulation No 207/2009) – that decision and its reasoning are part of the context in which the Board of Appeal’s decision was adopted, a context which is known to the parties and which enables the Court to carry out in full its review of legality as regards the soundness of the assessment made by the Board of Appeal (see, to that effect, judgment of 21 November 2007 in Case T-�111/06 Wesergold Getränkeindustrie v OHIM – Lidl Stiftung (VITAL FIT), not published in the ECR, paragraph 64).

53 In the present case, the Opposition Division stated in the decision of 29 September 2006 that, because of the presence of the common element ‘wings’, the marks at issue were phonetically similar ‘to a medium degree’, and conceptually similar ‘to a medium degree’, at least for the part of the relevant public which understood English.

54 As regards the phonetic comparison, it must be observed, as the Opposition Division established, that the ‘wings’ elements are the same in the marks at issue. In so far as the applicant relies on the case-law according to which the average consumer pays more attention to the initial part of a mark, that argument must be rejected for the reasons set out in paragraph 50 above.

55 Accordingly, it must be held that the marks at issue have an average degree of phonetic similarity.

56 Concerning the conceptual comparison, it must first be pointed out that, according to case-law, even if the comparison between the signs at issue from the conceptual point of view is of limited relevance with regard to some consumers, in this instance those who do not understand English, that does not prevent, with regard to the consumers who understand that term, the conceptual similarities between the signs at issue from being taken into consideration (see, by analogy, judgment of 11 July 2006 in Case T-�247/03 Torres v OHIM– Bodegas Muga (Torre Muga), not published in the ECR, paragraph 65).

57 In the present case, as regards that part of the relevant public which understands English, the Opposition Division stated that the ‘wings’ element would be understood as referring to the wings of an aircraft. Furthermore, the term ‘euro’ is used in order to refer generically to Europe or the European character of the goods and services covered, and the term ‘smart’ expresses, according to the Opposition Division, a quality attached to the term ‘wings’. Consequently, the Opposition Division concluded that the terms ‘smart’ and ‘euro’ were secondary in nature in relation to the term ‘wings’.

58 Inasmuch as the applicant merely asserted that the marks at issue were not similar from the conceptual point of view, without submitting arguments or evidence to substantiate that assertion, it has not shown that the Opposition Division’s assessment, confirmed by the Board of Appeal, was incorrect.

59 It follows that the Board of Appeal, by implicitly confirming the findings of the Opposition Division, correctly considered that the marks at issue had an average degree of phonetic similarity, in that they shared the term ‘wings’, and an average degree of conceptual similarity, at least for those consumers who understand English.

60 In the light of those considerations, it must be held that the Board of Appeal correctly concluded that the marks at issue were similar for the purposes of Article 8(1)(b) of Regulation No 40/94.

61 As is apparent from paragraphs 23 and 24 of the contested decision, the Board of Appeal held that the similarities between the marks at issue were liable to create a likelihood of confusion for consumers of the goods and services designated by those marks, despite the weak distinctive character of the element ‘wings’.

62 In that regard, inasmuch as, first, the goods and services at issue are identical or highly similar and, secondly, the examination carried out above with regard to the comparison of the signs shows that they produce a similar overall impression, there is a risk that the public for which the goods and services at issue are intended may believe that those goods and services come from the same undertaking or from economically-linked undertakings.

63 The Court rejects as unfounded the applicant’s argument that, since the earlier opposing marks are of weak distinctive character, there is no likelihood of confusion between the marks at issue. It is sufficient to observe in this connection that, according to case-law, in the case of a trade mark of weak distinctive character, there can be a likelihood of confusion, particularly because of the similarity of the signs and of the goods or services covered. That is true where, as in the present case, the degree of similarity between the goods covered by the marks at issue and the degree of similarity between the marks themselves, considered cumulatively, are sufficiently high to justify the conclusion that there is a likelihood of confusion (Case T-�35/04 Athinaiki Oikogeniaki Artopoiia v OHIM – Ferrero (FERRÓ) [2006] ECR II-�785, paragraph 69).

64 In addition, the applicant submits that the likelihood of confusion between the marks at issue may be ruled out since the relevant public is more specialised than the everyday consumer and thus displays a higher level of attention in relation to the differences between the trade marks. However, even if the relevant public were to display a greater level of attention than the average consumer, that fact would not be sufficient to rule out the possibility that it might believe that the goods and services designated by the marks at issue have the same commercial origin, given the identical nature of the goods and services designated by those marks and the similarity between the marks (see, to that effect, Case T-�483/04 Armour Pharmaceutical v OHIM – Teva Pharmaceutical Industries (GALZIN) [2006] ECR II-�4109, paragraph 80).

65 It follows from the foregoing that the Board of Appeal did not err in holding that there were, between the earlier opposing marks and the trade mark applied for, visual, phonetic and conceptual similarities liable to create a likelihood of confusion for the relevant public.

66 Consequently, the first plea alleging infringement of Article 8(1)(b) of Regulation No 40/94 must be rejected.

67 The applicant essentially submits that the Board of Appeal infringed Article 73 of Regulation No 40/94 in that it did not specify, in the contested decision, the reasons for which it did not take into account the arguments and evidence which the applicant provided in order to establish the descriptive character of the ‘wings’ element common to the marks at issue, specifically a list of unregistered marks and signs including the ‘wings’ element and owned by various proprietors.

69 Under the first sentence of Article 73 of Regulation No 40/94, decisions of OHIM are to state the reasons on which they are based. That duty has the same scope as that enshrined in Article 253 EC (Joined Cases T-�124/02 and T-�156/02 Sunrider v OHIM – Vitakraft-Werke Wührmann (VITATASTE) [2004] ECR II-�1149, paragraph 72).

70 It is settled case-law that the duty to give reasons for a decision has two purposes: to allow interested parties to know the justification for the measure so as to enable them to protect their rights and to enable the European Union judicature to exercise its power to review the legality of the decision. Whether a statement of reasons satisfies those requirements is a question to be assessed with reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question (see VITATASTE, paragraph 73 and the case-law cited).

71 In particular, when OHIM refuses registration of a sign as a Community trade mark, it must, in order to state the reasons for its decision, indicate the ground for refusal, absolute or relative, which precludes that registration and the provision from which that ground is drawn, and set out the facts which it found to be proved and which, in its view, justify application of the provision relied on (Case T-�304/06 Reber v OHIM –Chocoladefabriken Lindt & Sprüngli (Mozart) [2008] ECR II-�1927, paragraph 46).

72 In the present case, although the applicant argues that the Board of Appeal did not give sufficient reasons for its failure to take into account the arguments which the applicant submitted in order to establish the descriptive character of the term ‘wings’ with regard to goods and services relating to air transport, the fact remains that, in paragraphs 21 and 23 of the contested decision, the Board of Appeal held that it was evident that the term ‘wings’ alluded to activities linked to the aviation sector. Consequently, even though the Board of Appeal concluded that – in contrast to the view put forward by the applicant – that fact did not necessarily mean that the term ‘wings’ could not be the dominant element of the marks at issue, the first branch of the second plea cannot be upheld.

73 In any event, according to case-law, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may be implicit, on condition that, as in the present case, it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (see Case T-�191/07 Anheuser-Busch v OHIM – Budějovický Budvar (BUDWEISER) [2009] ECR II-�691, paragraph 128 and the case-law cited).

74 The applicant submits that the Board of Appeal infringed the right to a fair hearing and thereby infringed Article 79 of Regulation No 40/94, on the ground that it did not examine, in the contested decision, the evidence and arguments seeking to establish the descriptive character of the ‘wings’ element.

76 Article 79 of Regulation No 40/94 provides that, in the absence of procedural provisions in that regulation or its implementing regulations, OHIM must take into account the principles of procedural law generally recognised in the Member States. That provision applies only in the event of a lacuna or ambiguity in the procedural provisions (see, to that effect, judgment of 3 December 2009 in Case T-�223/08 Iranian Tobacco v OHIM – AD Bulgartabac (Bahman), not published in the ECR, paragraph 26).

77 In the present case, the applicant claims that Article 79 of Regulation No 40/94 was infringed by the Board of Appeal inasmuch as that latter did not examine, in the contested decision, the evidence and arguments seeking to establish the descriptive character of the ‘wings’ element.

78 It must be stated that the objection set out above is identical to that raised in the first branch of this plea.

79 Accordingly, it must be held that the reference by the applicant to Article 79 of Regulation No 40/94 is irrelevant. There is no need, in order to examine this objection, to be guided by the principles generally recognised in the Member States since, as is apparent from the examination of the first branch, the issue of the Board of Appeal’s alleged failure to take into account the evidence and arguments put forward by the applicant must be examined in the light of the procedural provisions contained in Regulation No 40/94 and in its implementing regulations (see, to that effect and by analogy, Case T-�160/07 Lancôme v OHIM– CMS Hasche Sigle (COLOR EDITION) [2008] ECR II-�1733, paragraph 27).

80 In any event, it must be stated that this branch is ineffective. It is apparent from paragraph 72 above that the Board of Appeal held that the term ‘wings’ alluded to activities linked to the aviation sector, even though it concluded from that, in contrast to the view put forward by the applicant, that that fact did not necessarily mean that that term could not be the dominant element of the marks at issue.

81 In the light of those considerations, the second branch of the second plea must be rejected and, consequently, the action in its entirety must be dismissed.

82 Under Article 87(2) of the Rules of Procedure, 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 forms of order sought by OHIM and the intervener.

2. Orders Travel Service a.s. to pay, in addition to its own costs, the costs of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Eurowings Luftverkehrs AG.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Travel Service v OHMI - Eurowings Luftverkehrs (smartWings) (Intellectual property) [2010] EUECJ T-72/08 (13 September 2010) URL: http://www.bailii.org/eu/cases/EUECJ/2010/T7208.html Cite as: [2010] EUECJ T-72/08, [2010] EUECJ T-72/8

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