Gerecht EU 11 mei 2011, zaak T-74/10 (Flaco-Geräte GmbH tegen OHIM/Delgado Sánchez)
agricultural cattle machinery is broad enough to include milking machine
Gerecht EU 11 mei 2011, zaak T-74/10 (Flaco-Geräte GmbH tegen OHIM/Delgado Sánchez)
Gemeenschapsmerk. Oppositieprocedure. Eerder Spaans woordmerk FLACO (klasse 7, 'agricultural cattle machinery') tegen Gemeenschapsmerkaanvrage FLACO (klasse 7, 'milking machine'). Relatieve weigeringsgrond. Identieke merken voor identieke waren, art. 8 lid 1, onder a en b Rl 207/2009. Verwarringsgevaar. Bewijs normaal gebruik van eerdere merk voor het eerst aangeboden bij Board of Appeal. Het Gerecht volgt de oppositie van het OHIM (afwijzing) en wijst het beroep af.
47 Second, as OHIM submits and as the Board of Appeal held in paragraph 22 of the contested decision, the heading ‘agricultural cattle machinery’ is broad enough to include the ‘milking machines and fittings, automatic milking devices; washing machines for milking machines’ referred to in the Community trade mark application.
48 The goods covered by the mark applied for are thus included amongst those covered by the earlier mark and the Board of Appeal was therefore correct in finding that the goods are identical and in deciding, consequently, to uphold the Opposition Division’s decision, which had allowed the opposition and refused the applicant’s registration application.
49 It should be noted that the Board of Appeal’s statement, in paragraph 23 of the contested decision, that there was a risk of confusion on the part of the relevant consumers, was superfluous. It is apparent from the scheme of Article 8(1) of Regulation No 207/2009 that the circumstances envisaged in subparagraph (b) of that provision do not include the situation already covered by subparagraph (a). Therefore, since the marks at issue are identical and cover identical goods, the trade mark application had to be rejected pursuant to Article 8(1)(a) of Regulation No 207/2009, and there was no need to consider whether there was a likelihood of confusion, within the meaning of Article 8(1)(b).
50 It would have been necessary to consider whether there existed a likelihood of confusion only in the event, considered by the Board of Appeal in the alternative, that the goods covered by the mark applied for, namely ‘washing machines for milking machines’, were not included in the goods covered by the earlier mark.
51 As regards, specifically, that situation, it should be borne in mind that the applicant does not dispute that ‘washing machines for milking machines’ are complementary to ‘milking machines’ and are intended for the same consumer, namely dairy farmers.
