Stayer Iberica v OHMI - Korporaciya "Masternet" (STAYER) (Judgment) [2015] EUECJ T-254/13 (04 June 2015)

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(Community trade mark — Invalidity proceedings — Community figurative mark STAYER — Earlier international word mark STAYER — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) and Article 53(1)(a) of Regulation No 207/2009)

Stayer Ibérica, SA, established in Pinto (Spain), represented by S. Rizzo, lawyer,

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Geroulakos, acting as Agent,

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

ZAO Korporaciya ‘Masternet’, established in Moscow (Russia), represented by N. Bürglen, lawyer,

ACTION brought against the decision of the Second Board of Appeal of OHIM of 4 March 2013 (Case R 2196/2011-2), concerning invalidity proceedings between ZAO Korporaciya ‘Masternet’ and Stayer Ibérica, SA,

composed of G. Berardis, President, O. Czúcz and A. Popescu (Rapporteur), Judges,

having regard to the response of OHIM lodged at the Court Registry on 30 July 2013,

having regard to the response of the intervener lodged at the Court Registry on 7 August 2013,

having regard to the change in the composition of the Chambers of the General Court,

having regard to the fact that no application for a hearing was submitted by the parties within the period of one month from notification of closure of the written procedure and having therefore decided, acting upon a report of the Judge-Rapporteur, to give a ruling without an oral procedure, pursuant to Article 135a of the Rules of Procedure of the General Court,

1 On 7 October 2005, the applicant — Stayer Ibérica, SA — filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

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

3 On 20 April 2007, the sign was registered as a Community trade mark under No 4 675 881.

4 The goods and services in respect of which the mark was registered are in Classes 7, 8 and 39 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:

– Class 7: ‘Equipment and tools; parts of cutting, milling and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles, brick, concrete, and bitumen and, in general terms, cutting tools as parts of the equipment included in Class 7’;

– Class 39: ‘Hand held abrasive items (wheels and grinding wheels), equipment and tools; parts of cutting, milling and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles, brick, concrete, and bitumen and, in general terms, cutting tools as parts of machines’.

5 On 20 October 2009, the intervener — ZAO Korporaciya ‘Masternet’ — filed an application with OHIM seeking a declaration of invalidity of the Community trade mark in respect of all the goods and services for which it had been registered.

6 In support of its application for a declaration of invalidity, the intervener invoked the international word mark STAYER, registered on 29 December 2001 under No 781 663 and producing its effects in Germany in respect of goods and services in Classes 3, 8 and 16 and corresponding, for each of those classes, to the following description:

– Class 3: ‘Cleaning products; finishing products; polishing preparations; degreasing products, abrasives, products for grinding abrasives, emery (incomprehensive terms according to the International Bureau — Rule 13.2)b) of the common execution regulations), polishing products, emery paper, emery tissue, grindstones, polishing tissue; abrading products’;

– Class 8: ‘Tools, cutlery, manual abra[d]ing instruments, whetstones, hand grinders, emery grinders, gu[i]de files, files; drilling bits, grass shearing devices, mo[u]lding irons; coffers, drill chucks, perforators, hand tools to be operated manually; pistols, snips, punchers’;

– Class 16: ‘Scrubbers, brushes, paint brushes, writing brushes, writing shafts (quite vague terms according to the International Bureau — Rule 13.2)b) of the common execution regulations), inking rollers, painting rollers, paper knives, set squares, plastic bags, bags (quite vague terms according to the International Bureau — Rule 13.2)b) of the common execution regulations), filtering materials (quite vague terms according to the International Bureau — Rule 13.2)b) of the common execution regulations)’.

7 The ground for invalidity relied on in support of that application was that referred to in Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation.

8 Following a request by the applicant, the intervener submitted documents intended to establish genuine use of the earlier trade mark in Germany during the relevant period.

9 On 29 August 2011, the Cancellation Division rejected the application for a declaration of invalidity in its entirety, finding that the intervener had not established genuine use of the earlier trade mark.

10 On 24 October 2011, the intervener filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Cancellation Division’s decision.

11 By decision of 4 March 2013 (‘the contested decision’), the Second Board of Appeal of OHIM partially upheld that appeal. First, it held that the intervener had established genuine use of the earlier trade mark in Germany during the relevant period in respect of the polyurethane (PU) float trowels — ‘PU hand float trowels’ — in Class 8 covered by the earlier trade mark.

12 Secondly, the Board of Appeal held that, besides the fact that the relevant territory was that of Germany, the relevant public comprised both the general public and professionals in the sectors in which the goods and services concerned were used, such as the construction sector, with the relevant public’s degree of attention being relatively high. In addition, it held that the signs at issue were similar overall.

13 The Board of Appeal also held that some of the goods in Class 7 and the goods in Class 8 covered by the contested trade mark were similar or slightly similar to the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark. It inferred from this that, so far as the goods covered by the contested trade mark were concerned, the signs at issue were sufficiently similar to create a likelihood of confusion between the marks at issue even if a part of the relevant public was particularly attentive. It annulled the Cancellation Division’s decision in that regard and declared the contested trade mark invalid in respect of those goods.

14 By contrast, the Board of Appeal dismissed the remainder of the appeal and upheld the Cancellation Division’s decision in that regard. It held that the other goods in Class 7 and the services in Class 39 covered by the contested trade mark were dissimilar to the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark. The Board of Appeal therefore found that, in view of the lack of similarity between those goods and services, one of the conditions for applying Article 8(1)(b) of Regulation No 207/2009 was not satisfied, which meant there could be no likelihood of confusion between the marks at issue.

– annul the contested decision to the extent that it has declared the Community trade mark invalid in respect of ‘[e]quipment and tools; parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘[h]and held abrasive items (wheels and grinding wheels)’ in Class 8;

Admissibility of certain documents submitted for the first time before the General Court

17 OHIM contends that some of the documents produced before the Court by the applicant — namely, Annexes A.2 to A.15 to the application, which, according to the applicant, establish a lack of genuine use of the earlier trade mark and a lack of similarity between the goods in question — constitute new evidence which was not produced during the administrative procedure before OHIM, with the result that those documents are inadmissible.

18 In that regard, it should be noted that the analysis of the administrative file relating to the procedure before OHIM clearly shows that the documents in Annexes A.2 to A.15 to the application were produced for the first time before the Court. It should be borne in mind that, according to settled case-law, the purpose of actions before the General Court is to review the legality of decisions of the Boards of Appeal of OHIM for the purposes of Article 65 of Regulation No 207/2009, 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, the abovementioned documents must be excluded, without it being necessary to assess their probative value (judgment of 26 November 2014 in Aldi Einkauf v OHIM — Alifoods (Alifoods), T‑240/13, ECR (Extracts), EU:T:2014:994, paragraph 20; see also, to that effect, judgment of 24 November 2005 in Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, ECR, EU:T:2005:420, paragraph 19 and the case-law cited).

20 The applicant submits that the Board of Appeal made improper use of the discretion to take into account evidence submitted out of time conferred on it by Article 76(2) of Regulation No 207/2009 and wrongly took into account evidence filed with it by the intervener to establish genuine use of the earlier trade mark. It claims that, contrary to the Board of Appeal’s assessment in paragraph 42 of the contested decision, that evidence did not supplement the main evidence, which had been produced before the Cancellation Division. It also argues that there was no explanation whatsoever from the intervener as to why it had been unable to produce that evidence before the Cancellation Division. The applicant concludes that, since the evidence produced before the Cancellation Division was deemed insufficient to establish genuine use of the earlier trade mark, the appeal against that division’s decision should have been dismissed in its entirety.

22 In the contested decision, the Board of Appeal held that the relevant period in respect of which the intervener was required to adduce evidence of genuine use of the earlier trade mark ran from 20 October 2004 to 19 October 2009 (paragraph 19). It stated that the intervener had produced the following items before the Cancellation Division: five invoices from 2008; some undated pictures; a declaration from 15 June 2004; some printouts from a website; and a copy of a catalogue (paragraph 20). It held that the invoices — corroborated by the undated pictures — proved that the earlier trade mark had been used in the relevant territory during the relevant period, albeit only on a small scale (paragraphs 21 to 26 and 28 to 31). By contrast, it found that the remaining documents contained no references to the earlier trade mark and were therefore irrelevant (paragraph 27).

23 The Board of Appeal stated that the evidence of use of the earlier trade mark adduced by the intervener during the appeal proceedings was clearly submitted out of time, as it had been produced after the expiry of the time-limit set by OHIM pursuant to Rule 40(6) of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark (OJ 1995 L 303, p. 1), as amended (paragraphs 32 and 33 of the contested decision). It observed that, under Article 76(2) of Regulation No 207/2009 and case-law, it had discretion to decide whether or not it was appropriate to take that evidence into account (paragraph 34 of the contested decision). It added that the new evidence, adduced out of time, had to be additional evidence rather than the main evidence (paragraph 40 of the contested decision).

24 The Board of Appeal examined the evidence of use of the earlier trade mark adduced by the intervener during the appeal proceedings (paragraphs 41 to 44 of the contested decision). It held that the five invoices produced before the Cancellation Division were relevant and constituted the main evidence, and that five of the six invoices produced out of time constituted additional evidence.

25 The Board of Appeal concluded that the overall assessment of all the evidence produced by the intervener showed that genuine use of the earlier trade mark had been established, but only for the PU floats — ‘PU hand float trowels’ — in Class 8 covered by the earlier trade mark (paragraphs 43 to 45 of the contested decision).

26 It should be borne in mind that, under Article 76 of Regulation No 207/2009, OHIM may disregard facts or evidence which are not submitted in due time by the parties concerned.

27 According to settled case-law, it follows from the wording of Article 76(2) of Regulation No 207/2009 that, as a general rule and unless otherwise specified, the submission of facts and evidence by the parties remains possible after the expiry of the time-limits to which such submission is subject under the provisions of that regulation and that OHIM is in no way prohibited from taking account of facts and evidence which are submitted or produced out of time, that is to say, after the time-limit set by the Cancellation Division and, as the case may be, for the first time before the Board of Appeal (see, to that effect, judgments of 13 March 2007 in OHIM v Kaul, C‑29/05 P, ECR, EU:C:2007:162, paragraph 42, and 18 July 2013 in New Yorker SHK Jeans v OHIM, C‑621/11 P, ECR, EU:C:2013:484, paragraph 22).

28 In stating that OHIM ‘may’ decide to disregard facts and evidence submitted or produced out of time, Article 76(2) of Regulation No 207/2009 grants OHIM a broad discretion to decide, while giving reasons for its decision in that regard, whether or not to take such information into account (judgments in OHIM v Kaul, cited in paragraph 27 above, EU:C:2007:162, paragraphs 43 and 68, and New Yorker SHK Jeans v OHIM, cited in paragraph 27 above, EU:C:2013:484, paragraph 23).

29 Regarding, more specifically, the submission of evidence of genuine use of an earlier trade mark during invalidity proceedings, it should be noted that, although, under Article 57(2) and (3) of Regulation No 207/2009, read in conjunction with Article 42(2) and (3) of that regulation, if the proprietor of the contested trade mark so requests, the proprietor of an earlier Community trade mark, being a party to the invalidity proceedings, is to furnish proof of genuine use of that earlier trade mark, in the absence of which the application for a declaration of invalidity is to be rejected, that regulation does not contain any provision specifying the period within which such proof must be furnished.

30 By contrast, Rule 40(6) of Regulation No 2868/95, read in conjunction with Rule 22(2) of that regulation, states in that regard that, where such an application is made, OHIM is to invite the proprietor of the earlier trade mark to furnish proof of use of the mark or show that there are proper reasons for non-use within such period as it may specify.

31 Next, it should be borne in mind that the second sentence of Rule 40(6) of Regulation No 2868/95 also states that, if proof of use of the mark is not provided within the time-limit set by OHIM, the application for a declaration of invalidity is to be rejected. In that regard, although it is admittedly apparent from the wording of that provision that, when no proof of use of the mark concerned is submitted within the time-limit set by OHIM, the application for a declaration of invalidity must automatically be rejected by that office, such a conclusion is not inevitable when proof of use has indeed been submitted within that time-limit (see, by analogy, judgment in New Yorker SHK Jeans v OHIM, cited in paragraph 27 above, EU:C:2013:484, paragraph 28). In such a case, and unless it appears that that evidence is irrelevant for the purposes of establishing genuine use of the mark, the proceedings are to run their course. Accordingly, OHIM is, inter alia, called upon, as provided by Article 57(1) of Regulation No 207/2009, to invite the parties, as often as necessary, to file their observations on the notifications it has sent to them or on the communications from the other parties. In such a situation, if the application for a declaration of invalidity is subsequently rejected owing to lack of sufficient proof of genuine use of the earlier mark, that rejection does not result from application of Rule 40(6) of Regulation No 2868/95 — a provision which is essentially procedural — but exclusively from the application of the substantive provisions set out in Article 57(2) and (3) of Regulation No 207/2009 (see, by analogy, judgment in New Yorker SHK Jeans v OHIM, cited in paragraph 27 above, EU:C:2013:484, paragraph 29).

32 It follows from the foregoing that, where evidence which is considered to be relevant for the purposes of establishing use of the mark at issue has been produced within the time-limit set by OHIM under Rule 40(6) of Regulation No 2868/95, the submission of additional proof of such use remains possible after the expiry of that time-limit. In such a case, OHIM is in no way prohibited from taking account of evidence submitted out of time through use of the discretion conferred on it by Article 76(2) of Regulation No 207/2009 (see, by analogy, judgment in New Yorker SHK Jeans v OHIM, cited in paragraph 27 above, EU:C:2013:484, paragraph 30).

33 Furthermore, as regards the exercise of that discretion by OHIM for the purposes of the possible taking into account of evidence submitted out of time, it should be noted that, where OHIM is called upon to give judgment in the context of invalidity proceedings, taking such facts or evidence into account is particularly likely to be justified where OHIM considers, first, that the evidence submitted late is, on the face of it, likely to be relevant to the outcome of the invalidity proceedings brought before it and, second, that the stage of the proceedings at which that late submission takes place and the circumstances surrounding it do not preclude such evidence being taken into account (see, by analogy, judgments in OHIM v Kaul, cited in paragraph 27 above, EU:C:2007:162, paragraph 44, and New Yorker SHK Jeans v OHIM, cited in paragraph 27 above, EU:C:2013:484, paragraph 33).

34 In the present case, the applicant does not dispute the Board of Appeal’s assessment in paragraphs 31 and 41 of the contested decision, pursuant to which the intervener had submitted proof of genuine use of the earlier trade mark within the time-limit set by the Cancellation Division, but that division had deemed that proof insufficient.

35 In addition, in paragraph 42 of the contested decision the Board of Appeal stated that the evidence produced out of time comprised six invoices, five of which dated from the relevant period. It held that the parties involved and the object and structure of those five invoices were identical to the parties, object and structure of the invoices submitted within the time-limit set by the Cancellation Division, explaining that the former differed from the latter only in terms of their amounts and dates. As the applicant notes, the Board of Appeal inferred from this, in essence, that that evidence, submitted out of time, was additional evidence supplementing the evidence adduced before the Cancellation Division, which constituted the main evidence. Accordingly, it must be held — as OHIM contends — that, in accordance with the case-law cited in paragraph 28 above, the Board of Appeal provided reasons for its decision to take into account the evidence produced out of time.

36 Moreover, in accordance with the case-law cited in paragraph 33 above, the Board of Appeal implicitly held that the evidence produced out of time by the intervener to supplement the relevant evidence initially produced by that party was, on the face of it, likely to be relevant to the outcome of the invalidity proceedings brought before OHIM in so far as its being taken into account could help to provide proof of genuine use of the earlier trade mark in Germany during the relevant period. Furthermore, the Board of Appeal implicitly held that the stage of the proceedings at which that late submission took place and the circumstances surrounding it did not preclude such evidence being taken into account, in so far as the intervener had produced that evidence at the time of filing its statement setting out the grounds of its appeal before OHIM, thus enabling the Board to exercise, in an objective and reasoned manner, its discretion to decide whether or not to take that evidence into account.

37 In addition, contrary to the applicant’s assertions, the fact that the invoices submitted out of time concerned a larger number of goods than those produced before the Cancellation Division is not capable of calling into question the fact that they constitute additional evidence. First, the number of invoices involved is the same. Second, the intervener submitted evidence intended to establish the extent of the use of the earlier trade mark after the evidence which it had initially produced was deemed by the Cancellation Division to be insufficient to demonstrate the extent of that use. In those circumstances, logically, the intervener produced evidence concerning a larger volume of goods so as to demonstrate a wider use of the earlier trade mark.

38 Lastly, the applicant’s argument that the intervener did not explain why it had not submitted the evidence produced for the first time before the Board of Appeal within the prescribed time-limit also cannot succeed.

39 It should be noted from the outset — as OHIM contends — that neither Regulation No 207/2009 nor the case-law cited in paragraphs 28 and 33 above requires any such explanation.

40 Moreover, it must be observed that the intervener, in its statement setting out the grounds of its appeal before the Board of Appeal, made reference both to the Cancellation Division’s decision deeming the proof of use produced insufficient and to additional evidence. It thus relied on all of that evidence to support its arguments as set out on pages 2 and 3 of that statement. It must be held that the intervener’s referring to that evidence was sufficient indication of its arguing that, in view of the Cancellation Division’s decision, that evidence was relevant to the proceedings before the Board of Appeal.

41 Furthermore, it is important to emphasise that it is not necessary that the party concerned be unable to submit evidence within the time-limit referred to in Rule 40(6) of Regulation No 2868/95 in order for additional evidence of use of the mark submitted after expiry of that time-limit to be taken into account (see, by analogy, judgment of 26 September 2013 in Centrotherm Systemtechnik v OHIM and centrotherm Clean Solutions, C‑610/11 P, ECR, EU:C:2013:593, paragraph 117).

42 In addition, it should be noted that — contrary to the applicant’s assertions — the case-file does not show that the intervener abused the prescribed time-limits, demonstrating manifest negligence, but rather that it merely produced supplementary evidence after the evidence which it had initially produced was deemed insufficient by the Cancellation Division.

43 It follows from all of the foregoing that — as OHIM and the intervener contend — the Board of Appeal correctly exercised its discretion as regards the evidence produced for the first time before it by the intervener and did not make a manifest error of assessment in deciding to take that evidence into account.

44 Accordingly, the Board of Appeal cannot be accused of infringing Article 76(2) of Regulation No 207/2009 and the first plea in law must be dismissed.

45 The applicant claims that the Board of Appeal erred in its assessment of proof of genuine use of the earlier trade mark and, in so doing, infringed Article 15 of Regulation No 207/2009. It submits that the evidence produced by the intervener, when considered as a whole, is not sufficient to establish that the earlier trade mark was put to genuine use on the market during the relevant period.

46 In that regard, the applicant submits that the Board of Appeal rightly stated in paragraph 24 of the contested decision that ‘[the] affixing of the ... trade mark to goods or to the packaging thereof in the European Union solely for export purposes also constitutes use within the meaning of Article 15(1)[(b) of Regulation No 207/2009]’.

47 However, the applicant submits that, if the use of the mark in the European Union entails use on the market and if that use must be public, external and apparent to customers — whether actual or potential — of the goods concerned, that rule must apply a fortiori to exported goods. Accordingly, mere internal use of a trade mark cannot qualify as export for the purposes of Article 15(1)(b) of Regulation No 207/2009 and it is not sufficient to demonstrate that the goods covered by the earlier trade mark have been exported outside the European Union unless it is established that they were directed at end consumers in the context of commercial activity.

48 The applicant argues that, in the present case, as the Board of Appeal rightly observed in paragraph 23 of the contested decision, the intervener has not produced any evidence from which it can be inferred that the relevant public — including wholesalers, retailers, masons, and so on — has directly acquired the goods covered by the earlier trade mark. Indeed, the intervener has not provided any evidence (such as invoices addressed to external customers) that, whether viewed alone or combined with other evidence, refers unambiguously and directly to the use of the earlier trade mark on the market.

49 In addition, the applicant states that one of the invoices produced by the intervener before the Cancellation Division and three of the invoices produced by that party for the first time before the Board of Appeal contain the following statement: ‘This delivery is exempt from VAT according to Section 6 of the Value Added Tax Act as the goods are delivered to the end customer: Company Master Labs, Inc.’ (the words ‘end customer: Company Master Labs, Inc.’ are underlined by the applicant). The applicant claims, relying on Annexes A.2 to A.7 to the application in that regard, that that end customer is a fictitious company which is not independent, as it belongs to the intervener. Consequently, the internal transactions documented through the invoices produced cannot qualify as ‘export’ for the purposes of Article 15(1)(b) of Regulation No 207/2009.

51 In paragraphs 20 to 25, 43 and 44 of the contested decision, the Board of Appeal observed that 10 invoices produced by the intervener — five before the Cancellation Division and five before the Board — were issued by a company established in Germany for the attention of the holder of a licence granted by the intervener, and that the issuing company had, by order and on behalf of that licence-holder, produced, labelled and delivered the items listed in those invoices to a forwarding company established in Germany. The Board of Appeal held that those invoices were evidence of use of the earlier trade mark for ‘PU hand float trowels’, given that: (i) they dated from the relevant period; (ii) the affixing of the earlier trade mark to the goods ordered by the holder of a licence granted by the intervener had been carried out by an undertaking established in the relevant territory; and (iii) the extent of use of the earlier trade mark was not sporadic.

52 As a preliminary point, it should be stated that, in the context of invalidity proceedings brought on the basis of Article 53(1)(a) of Regulation No 207/2009, it is necessary to apply the provisions of that regulation, including Article 57(2) and (3) thereof, and not — contrary to the intervener’s assertions — provisions of German law.

53 Furthermore, although Article 15(1)(b) of Regulation No 207/2009 refers only to the use of a Community trade mark, it must be applied by analogy to the use of an earlier trade mark registered under international arrangements having effect in a Member State, given that Article 57(3) of Regulation No 207/2009 states that Article 57(2) of that regulation is to apply to the earlier national trade marks referred to in Article 8(2)(a) thereof (see, to that effect and by analogy, judgment of 14 December 2011 in Völkl v OHIM — Marker Völkl (VÖLKL), T‑504/09, ECR, EU:T:2011:739, paragraph 75).

54 First of all, it is necessary to reject OHIM’s argument that, even if the Board of Appeal’s conclusions regarding the invoices and the fact that they constituted proof of ‘export’ for the purposes of Article 15(1)(b) of Regulation No 207/2009 were found to be incorrect, that would not mean that the Board of Appeal had infringed Article 15 of Regulation No 207/2009, given that its findings regarding proof of use of the earlier trade mark were also borne out by other evidence provided by the intervener (photographs, catalogues, printouts), the probative value of which is not contested by the applicant.

55 The Board of Appeal did not acknowledge that the catalogues and printouts had probative value, in so far as it held that they did not contain any reference to the earlier trade mark and were therefore irrelevant (paragraph 27 of the contested decision). In addition, it held that the undated pictures corroborated the other items of evidence, namely, the invoices provided (paragraph 26 of the contested decision). Accordingly, the Board of Appeal did not find that those items of evidence were capable per se of establishing genuine use of the earlier trade mark.

56 Next, it should be noted — as OHIM has — that the applicant does not put forward any argument calling into question the Board of Appeal’s finding that the use of the earlier trade mark by the holder of a licence granted by the intervener was equivalent to use by the intervener (paragraph 22 of the contested decision). In that regard, it should be borne in mind that, under Article 15(2) of Regulation No 207/2009, use of a trade mark with the consent of the proprietor is to be deemed to constitute use by the proprietor. Consequently, the Board of Appeal’s finding to that effect in the contested decision must be upheld.

57 In addition, since the Board of Appeal observed that the activities of the holder of a licence granted by the intervener were exclusively focused on export, it must be held that the applicant concedes, as was stated by the Board of Appeal, that the affixing of the earlier trade mark to goods or to the packaging thereof in the European Union solely for export purposes also constitutes use within the meaning of Article 15(1)(b) of Regulation No 207/2009 (paragraphs 23 and 24 of the contested decision).

58 However, the applicant argues, in essence, that there is no outward use (use on the market) of the earlier trade mark, although it notes the fact that one of the invoices produced by the intervener before the Cancellation Division and three of the invoices produced by that party for the first time before the Board of Appeal contained a reference to an end customer.

59 In that regard, although the applicant considers that end customer to be a fictitious company which is linked to the other party and has not developed any commercial activity, that line of argument must be held to be unsubstantiated: the applicant relies in that regard on Annexes A.2 to A.7 to the application, which are inadmissible (see paragraph 18 above).

60 Moreover, the applicant’s assertion that the Board of Appeal concluded that the intervener had not produced any evidence from which it could be inferred that the relevant public — including wholesalers, retailers, masons, and so on — had directly acquired the goods covered by the earlier trade mark stems from a misreading of the contested decision: the Board of Appeal stated that, apart from the invoices produced, ‘[n]o additional documents [showing] the direct acquisition of the products under the earlier mark by the relevant public ... [had] been submitted by [the intervener]’ (paragraph 23 of the contested decision).

61 In those circumstances, it must be held that the intervener has adduced evidence of delivery of goods covered by the earlier trade mark to an end customer and thus of outward use (use on the market) of that earlier trade mark, that evidence being the four invoices mentioned by the applicant (see paragraph 58 above).

62 In the light of all of the foregoing, the second plea in law must be dismissed without it being necessary to give a ruling on the admissibility of the applicant’s argument, which is contested by OHIM. Accordingly, the Board of Appeal’s conclusion that proof of genuine use of the earlier trade mark has been established for ‘PU hand float trowels’ (paragraph 44 of the contested decision) must be upheld.

63 The applicant submits that the Board of Appeal infringed Article 8(1)(b) of Regulation No 207/2009 because, owing to lack of similarity between the goods in question, there is no likelihood of confusion between the marks at issue. It contests, in particular, the Board of Appeal’s assessment of the similarity between the goods in Class 8 in respect of which genuine use of the earlier trade mark has been established and the goods in Class 8 and some of the goods in Class 7 covered by the contested trade mark.

64 OHIM and the intervener argue, in essence, that the Board of Appeal was entitled to conclude that there was a likelihood of confusion between the marks at issue.

65 Under Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation, upon application by the proprietor of an earlier trade mark, a Community trade mark is to be declared invalid 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. In addition, under Article 8(2)(a)(iii) of that regulation, ‘earlier trade marks’ means 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.

66 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 line of authority, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and the goods or services concerned and account being taken of all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003 in Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, ECR, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

67 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009 in Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, ECR, EU:T:2009:14, paragraph 42 and the case-law cited).

68 It is in the light of the foregoing considerations that the Board of Appeal’s assessment of the likelihood of confusion between the marks at issue must be examined.

69 As a preliminary point, it should be noted that the Board of Appeal was right to take only the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark into consideration in its comparison of the goods in question and in its global assessment of the likelihood of confusion. Genuine use of the earlier trade mark has not been established except in respect of those goods (see paragraph 62 above).

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

71 In the present case, the mark on which the application for a declaration of invalidity is based is an international trade mark producing its effects in Germany. Accordingly, the relevant territory for the analysis of the likelihood of confusion is — as the Board of Appeal correctly stated without being challenged by the parties — that of Germany (paragraph 53 of the contested decision).

72 Furthermore, the Board of Appeal held in paragraph 53 of the contested decision that, in view of the nature of — inter alia — the goods covered by the marks at issue, the relevant public comprised both the general public and professionals in, for example, the construction sector, the latter having a higher degree of attention than the former. It stated that, nevertheless, given that some of the goods covered by the contested trade mark were neither purchased nor ordered on a regular basis, the public’s degree of attention with regard to those goods would be relatively high.

73 In that regard, the applicant does not deny that the relevant public consists of professionals, who will have a relatively high degree of attention. However, it challenges the assertion that, regarding the goods in Class 7 covered by the contested trade mark, that public also comprises the general public. It argues that the general public will hardly use equipment and tools such as milling and polishing diamond machines, or bits and cutting wheels for the marble, granite, stone, clay, slabs, tiles, brick, concrete, and bitumen industries, and will not be interested in those kinds of special machines. According to the applicant, those goods are intended exclusively for professionals in need of such highly specialised and expensive tools, including professionals in the construction sector.

74 First of all, it must be held that, having regard to the goods in question in Classes 7 and 8, the relevant public consists of professionals — including professionals in the construction sector — who will have a relatively high degree of attention.

75 Next, it must be held that, contrary to the applicant’s assertions, the goods in question may also be used by consumers from the general public where such consumers, as discussed by OHIM and the intervener, frequently engage in home improvement, renovation works or the construction of (immovable) property. The applicant also indicates, regarding some of the goods in Class 7 covered by the contested trade mark, that the general public will ‘hardly’ use them, thereby acknowledging that the general public may be led to make some use of them. Furthermore, since the goods in question in Classes 7 and 8 are likely to be of a fairly technological nature and to be the subject of a careful purchasing decision, it must be held that the general public will display a relatively high degree of attention.

76 Consequently, it must be concluded that, in view of the goods involved, the relevant public comprises — as the Board of Appeal rightly decided in paragraph 53 of the contested decision — both the general public and professionals in, for example, the construction sector, and that that public has a relatively high degree of attention.

77 It must be found that, contrary to the assertions of OHIM and the intervener, the Board of Appeal did not conclude that there was a high degree of similarity between the marks at issue and that those assertions are based on a misreading of the contested decision.

78 Indeed, in paragraphs 74 to 76, 78 and 82 of the contested decision, the Board of Appeal held that the signs at issue: (i) had an average degree of visual similarity; (ii) were identical aurally; and (iii) conceptually, differed only in the idea introduced by the main figurative element of the contested trade mark and could not be compared. In addition, the Board of Appeal held that the fact that the marks had the distinctive and independent element ‘stayer’ (which was one of the dominant elements of the contested trade mark) in common was a sufficient ground for finding that the signs at issue were similar overall.

79 Those findings of the Board of Appeal — which, moreover, are not called in question by the applicant — must be upheld.

80 According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment of 11 July 2007 in El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, ECR, EU:T:2007:219, paragraph 37 and the case-law cited).

81 First, in paragraph 58 of the contested decision, the Board of Appeal held that the ‘[e]quipment and tools’ in Class 7 covered by the contested trade mark constituted a wide category encompassing, inter alia, power floating machines. It held that such ‘equipment and tools’ included goods which could be used by the same professionals for the same purpose and that those goods were complementary to or in competition with each other. It concluded that the ‘equipment and tools’ in Class 7 covered by the contested trade mark and the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark were similar, although their nature and method of use were different.

82 The applicant rejects that assessment by the Board of Appeal. It claims, first, that the goods in question are not in competition with each other since, as their nature and method of use are different, they are not interchangeable and, second, that they are not complementary. According to the applicant, the only connection between the goods in question is that they may be described as tools in the very broadest sense: a highly attentive consumer, it argues, would not be confused by such a weak connection.

83 OHIM is of the view that, as the goods concerned are similar, the Board of Appeal did not err in its assessment. The intervener contends that the goods in question are identical or highly similar.

84 In that regard, it is clear that the ‘PU hand float trowels’ covered by the earlier trade mark can be described as tools. Accordingly, it must be held that — as the intervener contends — the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark are identical to the ‘[e]quipment and tools’ in Class 7 covered by the contested trade mark, since, according to case-law, goods can be regarded as identical where the goods covered by the earlier mark are included in a more general category, designated by the subsequent trade mark (see, to that effect, judgments of 7 September 2006 in Meric v OHIM — Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, ECR, EU:T:2006:247, paragraph 29 and the case-law cited, and 29 February 2012 in Certmedica International and Lehning entreprise v OHIM — Lehning entreprise and Certmedica International (L112), T‑77/10 and T‑78/10, EU:T:2012:95, paragraph 82 and the case-law cited).

85 Secondly, in paragraphs 59 and 60 of the contested decision the Board of Appeal concluded that there was at least a slight degree of similarity between the ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8 covered by the contested trade mark and the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark. It held that those goods were directed at the same consumers and that they were used for the same construction process, as they had the same aim and were complementary.

86 Those findings are contested by the applicant, which bases its arguments on — inter alia — Annexes A.8 to A.15 to the application. It claims that the only argument put forward by the Board of Appeal as a ground for concluding that there was a low degree of similarity between the goods in question was that those goods could be used by the same consumers as part of the same construction process. However, the mere possible coincidence as regards the public or the construction process is not a sufficient ground for a finding of similarity. According to the applicant, pursuant to the settled case-law of the Court of Justice, it is necessary, in order to assess the similarity of the goods in question, to take account of all the relevant factors relating to those goods.

87 The applicant argues that the goods in question are dissimilar, and that the differences between them are not simply summarised by whether or not the tool is driven by electrical power or a motor. The goods differ in nature as the goods covered by the contested trade mark are complex appliances which use mechanical power and are designed to perform certain tasks independently or semi-independently, whereas the goods covered by the earlier trade mark are much simpler tools which are hand-operated and made of plastic and which have a simpler intended purpose and method of use. The applicant claims, for example, that it is not possible to use ‘PU hand float trowels’ to cut marble, granite or stone. Therefore, there is no relationship of complementarity or competition between the goods concerned. Moreover, such goods are not generally manufactured by the same companies, given that different skills and methods are required to produce them.

88 Consequently, even assuming that the goods in question can be used by the same consumers during the same construction process, those considerations are not in themselves sufficient to support a conclusion that the goods in question are similar, given the obvious differences between them as regards their nature and intended purpose.

89 OHIM contends that the Board of Appeal did not err in concluding that the goods concerned were similar.

90 According to OHIM, the applicant is merely asserting that the Board of Appeal disregarded the fact that ‘the mere possible coincidence [as regards the] public and/or [the construction] process [was] not [a] sufficient [ground for a finding of] similarity’, since ‘a connection of that kind is tenuous and should not per se [form the basis of] a finding of similarity between the goods’. According to OHIM, the applicant is attempting to oversimplify the reasoning set out in the contested decision, inaccurately stating that ‘the only argument of the [Board of Appeal] to conclude that the goods at issue [were] similar to a low degree [was] that [they could] be used by the same consumers [as part of] the same [construction] process’. OHIM contends that the Board of Appeal’s conclusion was based on the fact that the goods in question could be used by the same consumers in the same environment for the same construction process and that, consequently, they were aimed at the same public, had the same intended purpose and were used in the same circumstances. Accordingly, the goods in question are complementary.

91 OHIM also contends, in response to the applicant’s argument relating to the method of operation of the goods in question and the complexity of the tasks performed using those goods, that the applicant is concealing the fact that power trowels exist and serve exactly the same purpose as hand trowels. That simple fact reveals that the method of operation and the complexity of the tasks performed are not necessarily decisive factors capable of rendering the goods dissimilar.

92 According to the intervener, the goods in question are identical or very similar.

93 As a preliminary point, it should be borne in mind that Annexes A.8 to A.15 to the application, relied on by the applicant in support of its argument, are inadmissible (see paragraph 18 above).

94 It must be observed — as the applicant has stated — that the Board of Appeal found that the goods in Class 7 covered by the contested trade mark were essentially power-driven machines and components thereof, whereas the relevant goods covered by the earlier trade mark were hand-operated (paragraph 57 of the contested decision). It inferred from this that, although those goods were tools that could be offered to consumers through the same channels, for example through stores specialising in construction equipment, their nature and method of use were different. It also stated that those goods were likely to be manufactured by different companies, which the intervener contests, although it does not substantiate its arguments in that regard. The intervener also contends that the goods in question have an identical (or very similar) purpose and that they are interchangeable, but adduces no evidence whatsoever to support that assertion. Accordingly, those findings of the Board of Appeal — which, moreover, are not called in question by the applicant or OHIM — must be upheld.

95 The Board of Appeal also added that, in view of the wide range of existing tools, the fact that they shared the same end users and were displayed in the same sections of specialist stores was dependent on their method of use (paragraph 57 of the contested decision). The Board of Appeal held that the goods in question could be used by the same public as part of the same construction process and that they were complementary (paragraph 60 of the contested decision). In that regard, it should however be noted that, apart from mentioning the fact that the goods would be part of the same construction process, the Board of Appeal did not explain how those goods were complementary.

96 According to case-law, goods are complementary if there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods lies with the same undertaking (see judgments in PiraÑAM diseño original Juan Bolaños, cited in paragraph 80 above, EU:T:2007:219, paragraph 48 and the case-law cited, and easyHotel, cited in paragraph 67 above, EU:T:2009:14, paragraph 57 and the case-law cited).

97 As the applicant points out, the fact that goods are part of the same construction process does not permit a finding that there is a close connection between them: the Board of Appeal did not explain how the goods in question covered by the contested trade mark were indispensable or important for the use of the goods covered by the earlier trade mark, or vice versa. It should be observed that the goods in question are not part of the same stage of a construction process since the goods covered by the contested trade mark are used to prepare a surface while the goods covered by the earlier trade mark are used to prepare elements which may then be affixed to that surface. In those circumstances, ‘PU hand float trowels’ cannot be held to be indispensable or important for the use of ‘parts of cutting, milling and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles [and] brick ... and, in general terms, cutting tools as parts of the equipment included in Class 7’ or ‘[h]and held abrasive items (wheels and grinding wheels)’, or vice versa. It should also be noted that the goods concerned will not be found in the same sections of a DIY store.

98 It should certainly be borne in mind that, according to settled case-law, goods may also be regarded as complementary as a result of their belonging, from the relevant public’s perspective, to a single product family, which easily allows them to be regarded as components of a general range of goods capable of having a common commercial origin (judgment of 4 November 2003 in Díaz v OHIM — Granjas Castelló (CASTILLO), T‑85/02, ECR, EU:T:2003:288, paragraphs 33 and 36). The Board of Appeal, however, has not given any such justification concerning the goods in question belonging to a single product family. In any event, the goods concerned are dissimilar for the reasons set out in paragraphs 94 and 97 above and cannot be regarded or perceived as capable of belonging to a single tool family. Furthermore, it cannot be argued that the relevant public will consider it normal for the goods in question to be marketed under the same mark, which normally means that some of the manufacturers of those goods are the same. It should be noted in that regard that the Board of Appeal itself acknowledged that ‘th[o]se goods [were] likely to be [manufactured] by different companies’ (see paragraph 94 above).

99 Accordingly, it must be held that — as the applicant argues — the goods concerned, listed in paragraph 85 above, are not complementary.

100 In addition, the intervener’s argument that ‘trowels’ or ‘floats’ can be used in different ways, including as abrasive papers, must be rejected: the intervener merely refers to Annex 5 to the observations submitted before the Cancellation Division on 27 January 2011. According to settled case-law, in order to guarantee legal certainty and the sound administration of justice, it is necessary, for an action to be admissible, that the basic matters of fact and law relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. In that regard, whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the relevant provisions, must appear in the application. That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court also applies to the conditions for admissibility of the response of the intervener, since, pursuant to Article 135 of the Rules of Procedure, read in conjunction with Article 46(1)(b) of those Rules, that response must contain the arguments of law and fact relied on (see, to that effect and by analogy, judgment of 24 May 2012 in MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraphs 69 and 70). Accordingly, in so far as the intervener makes no specific reference to particular paragraphs of its written submissions in which the arguments put forward in the proceedings before OHIM are set out, the general references to those written submissions must be declared inadmissible.

101 The intervener also contends that the components of tools such as ‘bits and cutting wheels’ can be used in hand-operated or machine-operated tools and that those components are therefore in competition with each other. However, the intervener adduces no evidence to show how the ‘bits and cutting wheels’ covered by the contested trade mark and the ‘PU hand float trowels’ covered by the earlier trade mark are competing products, particularly in view of their intended purpose. Consequently, it must be held that — as the applicant submits — those goods are not in competition with each other.

102 It follows from the foregoing that the points of dissimilarity between the goods in question outweigh the similarities and it must be concluded that the ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8 covered by the contested trade mark are neither complementary to nor in competition with the ‘PU hand float trowels’ in Class 8 covered by the earlier trade mark, nor are they interchangeable with those goods. Therefore there is not even a low degree of similarity between them.

103 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 the similarity of the goods or services covered. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998 in Canon, C‑39/97, ECR, EU:C:1998:442, paragraph 17, and 14 December 2006 in Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and Others), T‑81/03, T‑82/03 and T‑103/03, ECR, EU:C:2006:397, paragraph 74).

104 First, the Board of Appeal found that, for the goods covered by the contested trade mark referred to in paragraph 85 above, the signs at issue were sufficiently similar to create a likelihood of confusion between the marks at issue even if a part of the relevant public was particularly attentive and the degree of similarity between those goods was not particularly high (paragraph 84 of the contested decision). It annulled the Cancellation Division’s decision in that regard and declared the contested trade mark invalid in respect of the goods concerned (paragraphs 86 and 87 of the contested decision).

105 It has been found that the goods covered by the contested trade mark referred to in paragraph 85 above and the relevant goods covered by the earlier trade mark were dissimilar (see paragraph 102 above). Consequently, it must be held that one of the essential conditions for applying Article 8(1)(b) of Regulation No 207/2009 has not been satisfied. It follows that the Board of Appeal was wrong to conclude that there was a likelihood of confusion in that regard.

106 Secondly, it should be borne in mind that, regarding the ‘tools’ in Class 7 covered by the contested trade mark, the Board of Appeal, having held that the goods in question were similar, inferred from this that the signs at issue were sufficiently similar to create a likelihood of confusion between the marks at issue even if a part of the relevant public had a relatively high degree of attention (paragraph 84 of the contested decision). As those goods must in fact be held to be identical (see paragraph 84 above), that finding of the Board of Appeal regarding the global assessment of the likelihood of confusion must be upheld.

107 It follows from all of the foregoing that the third plea in law must be upheld in part and that the contested decision must be annulled in part, to the extent that it has declared the Community figurative mark STAYER invalid in respect of the ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8 covered by that trade mark.

108 Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the General Court may order that the costs are to be shared or that each party is to bear its own costs. In the present case, the applicant, OHIM and the intervener have each failed on part of their heads of claim. Accordingly, each party must be ordered to bear its own costs.

1. Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 4 March 2013 (Case R 2196/2011-2) to the extent that it has declared the Community figurative mark STAYER invalid in respect of ‘parts of cutting and polishing diamond machines; bits and cutting wheels for the following industries: marble, granite, stone, clay, slabs, tiles and brick, and, in general terms, cutting tools as parts of the equipment included in Class 7’ in Class 7 and ‘hand held abrasive items (wheels and grinding wheels)’ in Class 8;

3. Orders OHIM, Stayer Ibérica, SA and ZAO Korporaciya ‘Masternet’ to bear their own costs.

Admissibility of certain documents submitted for the first time before the General Court

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Stayer Iberica v OHMI - Korporaciya "Masternet" (STAYER) (Judgment) [2015] EUECJ T-254/13 (04 June 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T25413.html Cite as: ECLI:EU:T:2015:362, [2015] EUECJ T-254/13, EU:T:2015:362

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