Judgment of the General Court (Fourth Chamber) of 21 November 2018 –Shenzhen Jiayz Photo Industrial v EUIPO — Seven (SEVENOAK)
(Case T‑339/17)
(EU trade mark — Opposition proceedings — Application for EU figurative mark SEVENOAK — Earlier international figurative mark 7seven — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
- EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Direction issued to the Office @ Direction addressed to the Office — Not included
(Council Regulation No 207/2009, Art. 65(6))
(see para. 24)
- EU trade mark — Appeals procedure — Action before the EU judicature — Jurisdiction of the General Court — Re-evaluation of the facts in the light of evidence produced for the first time before it — Not included
(Council Regulation No 207/2009, Art. 65)
(see para. 25)
- EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Criteria for assessment
(Council Regulation No 207/2009, Art. 8(1)(b))
(see paras 31-33, 100)
- EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Assessment of the likelihood of confusion — Determination of the relevant public — Attention level of the public
(Council Regulation No 207/2009, Art. 8(1)(b))
(see paras 40, 41)
- EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Figurative marks SEVENOAK and 7seven
(Council Regulation No 207/2009, Art. 8(1)(b))
(see paras 42-44, 56, 63, 71, 78, 86, 87, 101-105)
- EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Similarity of the marks concerned — Criteria for assessment — Composite mark
(Council Regulation No 207/2009, Art. 8(1)(b))
(see paras 47, 60, 61, 91)
- EU trade mark — Definition and acquisition of the EU trade mark — Signs of which a trade mark may consist — Letters and numbers — Condition — Distinctive character
(Council Regulation No 207/2009, Arts 4 and 7(1)(b))
(see para. 52)
- EU trade mark — Definition and acquisition of the EU trade mark — Relative grounds for refusal — Opposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services — Likelihood of confusion with the earlier mark — Weighing elements of similarity or difference between the signs — Taking into account of the intrinsic characteristics of the signs or the conditions in which the goods or services are marketed
(Council Regulation No 207/2009, Art. 8(1)(b))
(see para. 90)
Re:
Action brought against the decision of the First Board of Appeal of EUIPO of 23 March 2017 (Case R 1326/2016-1), relating to opposition proceedings between Seven and Shenzhen Jiayz Photo Industrial.
Operative part
The Court:
-
Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 March 2017 (Case R 1326/2016-1);
-
Dismisses the action as to the remainder;
-
Orders EUIPO to bear, in addition to its own costs, eight tenths of the costs incurred by Shenzhen Jiayz Photo Industrial Ltd;
-
Orders Seven SpA to bear, in addition to its own costs, a tenth of the costs incurred by Shenzhen Jiayz Photo Industrial;
-
Orders Shenzhen Jiayz Photo Industrial to bear a tenth of its own costs.