The Court of Justice of the European Union becomes stricter as far as the appeals

Authors: Erikas Saukalas, Associated Partner, Attorney-at-Law, Head of the International Relations Division at METIDA

It has become a norm for the Court of Justice of the European Union (ECJ) to reject the appeals that are based on the arguments used at first instance and that request for re-examination of the factual assessment given by the General Court. This type of appeals is rejected on the grounds that they lack explicit arguments. This is reflected in the case C676/13 P Zoo Sport Ltd v OHIM, where the ECJ has confirmed the decision of the General Court.

This dispute started on 24 January, 2010, when the application for registration of a Community trade mark  ‘ZOOSPORT’ was filed. The goods and services in respect of which registration was sought

was as follows:

Class 18: “Sports bags”;

Class 25: “Clothing; maillots; footwear; sports shoes”;

Class 35: “Distribution of samples; advertising”.

On 29 June 2010, the intervener, K2 Corp., filed a notice of opposition, which was based on two earlier marks: Community word mark ZOOT, and Community figurative mark reproduced below:Screen Shot 2014-08-07 at 16.56.46

The earlier word mark was registered for the following goods:

Class 9: “Diving suits”;

Class 25: “Articles of clothing namely swimwear, footwear and headgear”.

The earlier figurative mark was registered for the following goods and services:

Class 25: “Clothing, footwear, headgear”;

Class 35: “Retailing in the field of sports clothing and equipment”;

Class 36: “Sponsoring of athletes during sports competitions and/or events”;

Class 41: “Providing information relating to sports competitions and events via a global computer information network”.

On 31 March 2011, the Opposition Division upheld the opposition in so far as it was based on the earlier figurative mark, for part of the contested goods, namely for all of the goods in Classes 18 and 25. The Fourth Board of Appeal of OHIM [“the Board of Appeal”] allowed the applicant’s appeal for the goods “sports bags” and dismissed the appeal as to the remainder.

On 12 October 2012, Zoo Sport brought an action before the General Court against the contested decision.

The BoA’s decision was upheld. Court first of all found, that the goods at issue are aimed at the general public and are everyday consumer goods. The Court considered that it is not appropriate to find a high degree of attention of the average consumers throughout the European Union, whether the goods at issue are specifically directed at sports activities or not.

With respect to the comparison of the goods at issue, the Court held, that the goods at issue in Class 25 are identical given that the marks at issue cover clothing and footwear identically, and that maillots are included in the category of clothing covered by the earlier figurative mark, just as sports shoes are included in the category of footwear covered by the earlier figurative mark. The BoA was correct in finding that the signs had an average degree of visual and phonetic similarity. The marks displayed both a conceptual difference owing to the use of the elements ‘zoo’ and ‘zoot’ (the relevant public would view ‘zoot’ as a fanciful word) and a low degree of conceptual similarity due to the element ‘sport(s)’. Therefore, overall, a conceptual comparison of the signs did not reveal a significant difference between them. The BoA was therefore correct in finding a likelihood of confusion between the marks.

Zoo Sport filed an appeal before the ECJ. By the first part of its single ground of appeal, Zoo Sport claims that the General Court defined incorrectly the relevant public as being composed of average consumers rather than knowledgeable sports practitioners and that, accordingly, it wrongly found that the relevant public does not show a high degree of attention that excludes any likelihood of confusion.

The ECJ rejected the first part of appeal as manifestly inadmissible as Zoo Sport did not indicate how the General Court erred in law but merely reproduced the arguments it had submitted at first instance.

By the second part of its single ground of appeal, Zoo Sport Zoo Sport submits that, given that the trademarks at issue are completely different with respect to their visual, oral and conceptual aspects, there is no likelihood of confusion.

The ECJ explained that the appellant is clearly attempting to obtain a re-examination by the Court of Justice of the factual assessment made by the General Court as regards the visual, phonetic and conceptual comparison of the signs at issue, without demonstrating or even alleging that the General Court distorted the evidence or the facts. Accordingly, it was decided that the appellant cannot secure a re-examination by the Court of that assessment, with the result that that second part of the single ground of appeal has been also rejected as manifestly inadmissible.

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