Parties

In Case C‑676/13 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 December 2013,

Zoo Sport Ltd, established in Leeds (United Kingdom), represented by I. Rungg, Rechtsanwalt,

appellant,

the other parties to the proceedings being:

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM),

defendant at first instance,

K ‑ 2 Corp., established in Seattle (United States),

intervener at first instance,

THE COURT (Sixth Chamber),

composed of A. Borg Barthet (Rapporteur), President of the Chamber, M. Berger and S. Rodin, Judges,

Advocate General: M. Wathelet,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Grounds

Legal context

‘Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered:

…

(b) 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; the likelihood of confusion includes the likelihood of association with the earlier trade mark.’

Facts giving rise to the dispute

‘1 On 24 January 2010, the predecessor in law to the applicant, [Zoo Sport], filed an application for registration of a Community trade mark at [OHIM], pursuant to [Regulation No 207/2009].

2 The mark in respect of which registration was sought is the word sign ‘ZOOSPORT’:

3 The goods and services in respect of which registration was sought fall within Classes 18, 25 and 35 of the Nice Agreement of 15 June 1957 concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, as revised and amended, and correspond, in relation to each of those classes, to the following description:

Class 18: “Sports bags”;

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

Class 35: “Distribution of samples; advertising”.

4 The Community trade mark application was published in Community Trade Marks Bulletin No 2010/057 of 29 March 2010.

5 On 29 June 2010, the intervener, K‑2 Corp., filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009, to registration of the mark applied for in respect of all of the goods and services referred to in paragraph 3 above.

6 The opposition was based on two earlier marks: Community word mark ZOOT, registered on 13 September 2007 under No 5233119 (“the earlier word mark”), and Community figurative mark No 4719316 in black and white, registered on 8 June 2007 (“the earlier figurative mark”), reproduced below:

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7 The earlier word mark was registered for the following goods:

Class 9: “Diving suits”;

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

8 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”.

9 The grounds relied on in support of the opposition were those referred to in Article 8(1)(a) and (b) and Article 8(5) of Regulation No 207/2009.

10 On 31 March 2011, the Opposition Division upheld the opposition pursuant to Article 8(1)(b) of Regulation No 207/2009, 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, and rejected the opposition as to the remainder of the goods and services concerned. The Opposition Division also rejected the opposition based on Article 8(5) of Regulation No 207/2009 on the ground that no evidence had been adduced to support the claim that the earlier marks had a reputation. Lastly, the Opposition Division rejected the opposition in so far as it was based on the earlier word mark.

11 On 26 May 2011, the applicant filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.

12 In its response to the statement of grounds for the appeal, the intervener filed a cross-appeal in which it sought to have the opposition upheld for the services in Class 35.

13 By [the contested decision], 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.

14 The Board of Appeal also dismissed the intervener’s cross-appeal on the ground that it was inadmissible, since it did not meet the time-limit and fee requirements set out in Article 60 of Regulation No 207/2009. The Opposition Division’s decision to reject the opposition for the contested services in Class 35 therefore was res judicata in that respect. For the sake of completeness, the Board of Appeal nevertheless considered the cross-appeal and concluded that it was not well founded …

15 As regards the ground of appeal alleging breach of Article 8(1)(b) of Regulation No 207/2009, the Board of Appeal found, first, that the goods “sports bags” in Class 18 were different from the goods in Class 25 and from the services in Classes 35, 36 and 41 covered by the earlier figurative mark, whereas the goods in Class 25 were identical … The Board of Appeal also noted that the services in Class 35 covered by the mark applied for were different from all of the goods and services covered by the earlier figurative mark. According to the Board of Appeal, even if it were admissible, the cross-appeal brought by the other party would therefore be unfounded in any event …

16 Next, the Board of Appeal noted that the signs at issue had an average degree of phonetic and visual similarity. Conceptually, those signs are different for the public, who understands the word “zoo” as meaning an establishment for wild animals, and they are also similar in that they both include a reference to the term “sport” …

17 The Board of Appeal found that the goods covered by the marks at issue were aimed at the general public and that the consumer’s level of attention would be average and would not increase in accordance with the price of those goods …

18 For the Board of Appeal, the inherent distinctive character of the earlier figurative mark was normal …

19 Consequently, given the identical nature of the goods covered by the signs at issue, the average visual and phonetic similarity of those signs, the normal distinctive character of the earlier figurative mark and the normal level of attention of the relevant consumer, the Board of Appeal found a likelihood of confusion on the part of the relevant public as regards the goods in Class 25. The opposition was rejected for the other goods and services, which were different from those covered by the earlier figurative mark …

20 The Board of Appeal also considered that the outcome of the case would remain the same if the opposition were examined in the light of the earlier word mark …’

The procedure before the General Court and the judgment under appeal

8. With respect to the comparison of the goods at issue, the Court held, in paragraph 44 of the judgment under appeal, that the Board of Appeal was correct to find that the Opposition Division concluded 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.

9. With respect to the comparison of the signs, the Court held, in paragraph 64 of the judgment under appeal, that, although it is true that the symmetrical effect which characterises the earlier figurative mark is not found in the mark in respect of which registration is sought, that is not however sufficient for the rejection of the Board of Appeal’s finding that the signs at issue have an average degree of visual similarity.

10. The Court also held, in paragraph 75 of the judgment under appeal, that, although it is true that the signs at issue are distinguished in particular by the fact that the letter ‘t’, or possibly ‘z’, of the earlier figurative mark must be pronounced, which will not be the case for the mark in respect of which registration is sought, that difference is not however sufficient to reject the finding reached by the Board of Appeal that the signs at issue are phonetically similar to an average degree.

11. As regards the conceptual similarity of the signs at issue, the Court found, in paragraph 86 of the judgment under appeal, that those signs display, first, a conceptual difference owing to the use of the elements ‘zoo’ and ‘zoot’ and, second, a low degree of conceptual similarity since both signs include the word ‘sport’ or ‘sports’. Thus, it was concluded, in paragraph 87 of that judgment, that the Board of Appeal had been correct to find that the signs at issue are visually and phonetically similar to an average degree and that, conceptually, a comparison of the signs does not reveal a significant difference between them.

12. Accordingly, the Court held, in paragraph 94 of the judgment under appeal, that, due to the identical nature of the goods at issue and taking account of the average visual and phonetic similarity of the signs at issue and the fact that, conceptually, the comparison of the signs does not establish a significant difference between them, the Board of Appeal was correct to conclude that in the present case there is a likelihood of confusion on the part of the relevant public between the mark in respect of which registration is sought and the earlier figurative mark for the goods at issue.

Form of order sought before the Court of Justice

The appeal

The first part of the single ground of appeal

16. 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. In any event, in Zoo Sport’s submission, average consumers show a high degree of attention when purchasing expensive goods such as those covered by the earlier figurative mark.

17. In that regard, the Court would point out that it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Articles 168(1)(d) and 169(2) of the Rules of Procedure of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside as well as the legal arguments specifically advanced in support of the appeal (see, inter alia, judgments in Bergaderm and Goupil v Commission, C‑352/98 P, EU:C:2000:361, paragraph 34, and Acino v Commission, C‑269/13 P, EU:C:2014:255, paragraph 35).

18. However, in the present case, Zoo Sport did not indicate, in the first part of its single ground of appeal, how the General Court erred in law by rejecting, in paragraphs 36 to 42 of the judgment under appeal, the arguments that it had submitted at first instance, but merely reproduced those arguments.

19. Consequently, the first part of the single ground of appeal must be rejected as manifestly inadmissible.

The second part of the single ground of appeal