Judgment of the General Court (Fifth Chamber) of 22 January 2015

1. Community trade markObservations of third parties and oppositionExamination of the oppositionProof of use of the earlier markGenuine useConceptInterpretation having regard to the rationale of Article 42(2) and (3) of Regulation No 207/2009 (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 20)

2. Community trade markObservations of third parties and oppositionExamination of the oppositionProof of use of the earlier markGenuine useConceptCriteria for assessmentRequirement of solid and objective evidence (Council Regulation No 207/2009, Art. 42(2) and (3)) (see paras 21-24, 27)

3. Community trade markObservations of third parties and oppositionExamination of the oppositionProof of use of the earlier markGenuine useApplication of the criteria to the case in question (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 25)

4. Community trade markObservations of third parties and oppositionExamination of the oppositionProof of use of the earlier markGenuine useConceptDetermination of a quantitative threshold of minimum useExclusion (Council Regulation No 207/2009, Art. 42(2) and (3)) (see para. 26)

5. Community trade markObservations of third parties and oppositionExamination of the oppositionProof of use of the earlier markProbative value of the evidenceCriteria for assessment (Council Regulation No 207/2009, Arts 42(2) and (3), and 78(1)(f); Commission Regulation No 2868/95, Art. 1, Rule 22(4)) (see paras 30, 31)

6. Community trade markProcedural provisionsStatement of reasons for decisionsArticle 75, first sentence, of Regulation No 207/2009Scope identical to that of Article 296 TFEU (Art. 296 TFEU; Council Regulation No 207/2009, Art. 75, first sentence) (see paras 45-47)

7. Community trade markDefinition and acquisition of the Community trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markCriteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 63, 64, 154, 160)

8. Community trade markDefinition and acquisition of the Community trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markAssessment of the likelihood of confusionDetermination of the relevant publicAttention level of the public (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 65, 67)

9. Community trade markDefinition and acquisition of the Community trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesSimilarity between the goods or services in questionCriteria for assessment (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 69, 80)

10. Community trade markDefinition and acquisition of the Community trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesSimilarity of the marks concernedCriteria for assessmentComposite markDetermination of dominant component(s) (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 116-120, 129, 130, 139-143)

11. Community trade markDefinition and acquisition of the Community trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markWord mark AFRICAN SIMBA and figurative mark Simba (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 158, 159, 161, 171, 172)

12. Community trade markDefinition and acquisition of the Community trade markRelative grounds for refusalOpposition by the proprietor of an earlier identical or similar mark registered for identical or similar goods or servicesLikelihood of confusion with the earlier markCriteria for assessmentEarly mark occupying a distinctive independent position in the trade mark sought (Council Regulation No 207/2009, Art. 8(1)(b)) (see paras 164-167)

Re:

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 15 January 2013 (Case R 157/2012-4) relating to opposition proceedings between Simba Toys GmbH & Co. KG and Novomatic AG.

Operative part

The Court:

1. Dismisses the action;

2. Orders Novomatic AG to pay the costs.