Community design not invalid based on older Community trademark: difference in facial expression is a fundamental characteristic that is remembered by informed user.
Correct criterion by basing its reasoning on the informed user’s imperfect recollection of overall impression and by taking into consideration the whole of the relevant public.
"22. In that regard, the General Court affirmed, at paragraph 24 the judgment under appeal, that ‘the difference in the facial expression will be clear to young people buying T-shirts and caps [, and] will be all the more important for children using stickers to personalise items, who will be more likely to pay particular attention to the feelings expressed by each character appearing on a sticker’."
Assessment of overall impression is an appraisal of facts and not a point of law subject to review by Court in appeal.
"57 It follows that, when comparing the earlier mark and the contested design, the General Court did not err in law by basing its reasoning, at paragraphs 22 and 23 of the judgment under appeal, on the informed user’s imperfect recollection of the overall impression produced by the two silhouettes.
61 The General Court thus took into consideration the whole of the relevant public as defined by the Board of Appeal, namely young people, children and users of printed matter, including advertising materials. The same applies to the reasoning of the General Court at paragraph 23 of the judgment under appeal, when reference was made to that informed user during its examination of the impression produced by the earlier mark and the contested design. Subsequently, at paragraph 24 of the judgment under appeal, the General Court affirmed, in particular, that the difference in the facial expression of the two silhouettes will be clear to young people and children.
66 It is, however, settled case-law that the General Court has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is apparent from the documents submitted to it, and to appraise those facts. That appraisal of the facts thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal"
C-101/11 P and C-102/11 P - ECLI:EU:C:2012:641