Official Journal of the European Union

C 296/18

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(Case C-182/16 P)

(2016/C 296/23)

Language of the case: English

Parties

Appellant: Meica Ammerländische Fleischwarenfabrik Fritz Meinen GmbH & Co. KG (represented by: S. Labesius, Rechtsanwalt)

Other parties to the proceedings: European Union Intellectual Property Office, Salumificio Fratelli Beretta SpA

Form of order sought

The appellant claims that the Court should:

—set aside the judgment under appeal partially and annul the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office insofar as the remainder of the action before the General Court has been dismissed, in the alternative, to refer the case back to the General Court insofar,

—order the defendant and the intervener to bear the costs of the proceedings before the General Court and the defendant to bear the cost of the proceedings before the Court of Justice.

Pleas in law and main arguments

The appeal is based on an infringement of Union law by the General Court in so far as the General Court in its judgment of 4 February 2016 infringed Article 8 (1) (b) of Council Regulation No. 207/2009 (1) on the Community trade mark and Art. 296 (2) TFEU.

In summary, the General Court erred in its assessment of the likelihood of confusion based on the level of distinctiveness of the earlier mark ‘MINI WINI’ and of the similarity of signs and goods with the EUTM application ‘Stick MiniMINI …’, also regarding the independent distinctive role of the element ‘MiniMINI’ within the application. In addition, the General Court did not consider that also inherently weak elements of a trademark contribute to a likelihood of confusion, as well as the specific circumstances of the distribution of products influencing the level of attention of the relevant public and its tendency to abbreviate a mark by a weak, but visually dominant element.

Further, the General Court erred in law, because even if a verbal element should be considered to have a purely descriptive character, such character does not preclude that element from being acknowledged as dominant for the purposes of assessing the similarity of the signs. Also, the decision of the General Court was based on a distortion of the facts regarding the assessment of the dominant elements regarding their size and position within the sign of the contested EUTM application. In addition, the General Court erred in law when it stated that visual similarity is to be assessed dependently from the degree of the distinctiveness of visual elements of the contested EUTM application. Finally, the judgment under appeal was not properly motivated insofar as the General Court failed to deliver reasons concerning the level of attention of the relevant public concerning the specific goods at issue.

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(1) OJ L 78, p. 1

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