Conduct of applicant not relevant in case of opposi-tion ex article 8 TM Reg
• That […] the General Court’s analysis is not vi-tiated by an error of law due to the fact that it failed to take account of alleged wrongful conduct on the part of the trade mark applicant.
Similarity is of a factual nature, not subject to re-view by ECJ
• The assessment of the similarities between the signs at issue is of a factual nature and, save where the evidence and facts are distorted, is not subject to review by the Court of Justice. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new as-sessment of the facts and the evidence
Where there is no similarity the reputation or goodwill of older mark is irrelevant
• As regards the third part of the first ground of appeal, it should be noted, first, that, where there is no similarity between the earlier mark and the mark applied for, the reputation of or the goodwill attaching to the earlier mark and the fact that the goods or services concerned are identical or similar are not sufficient for it to be found that there is a likelihood of confusion between the marks at issue
No similarity because of different overall impression of marks
• However, it is clear that the General Court found, first, that the overall impression created by the mark applied for is dominated by the element ‘creaciones kennya’, on which the consumer con-cerned will to a very great extent focus his attention and, second, in particular at paragraph 44 of the judg-ment under appeal, that the element ‘ck’ occupies only an ancillary position in relation to that element, which, in essence, amounts to a conclusion that the element ‘ck’ in the mark applied for is negligible.
Similarity required for taking unfair advantage of or being detrimental to repute of mark
• It should be noted that, in order for Article 8(5) of Regulation No 40/94 to be applicable, the marks
at issue must be identical or similar. Consequently, that provision is manifestly inapplicable where,
as in the present case, the General Court ruled out any similarity between the marks at issue.