The view of the General Court regarding the distinctiveness of an earlier mark is based on an error in law: it is clear from the brochures provided by Michelin that the stylised letter ‘x’ is used, in isolation or in combination with other letters, to designate a technical characteristic of Michelin tyres. Appeal dismissed in its entirely despite error in law: the operative part of the judgment is shown to be well founded on other legal grounds.
Following the judgment of the General Court of the European Union of 8 December 2015, by which the appeal of Michelin against the registration of the XKING figurative mark in Class 12 by Continental Reifen was allowed on the basis of the brand X of Michelin.
XKING of Continental Reifen and X of Michelin
By the second part of its single ground of appeal Continental Reifen Deutschland criticises the General Court for having distorted certain evidence and for concluding that the letter ‘x’ in the earlier French trade mark did not designate a characteristic of the tyres. Whereas according to Continental Reifen, it shows that Michelin's letter X, wether stylised or not in, is used as designation of the characteristics of the tyre (size and thickness).
The Court notes, first of all, that such distortion must be obvious from the documents before the Court, without there being any need to carry out a new assessment of the facts and the evidence, see IPPT20161026, CJEU, Westermann v EUIPO. The view of the General Court that the earlier French trade mark has a normal degree of inherent distinctiveness is based on an error in law, since it is clear from the brochures provided by Michelin that the stylised letter ‘x’ is used, in isolation or in combination with other letters, to designate a technical characteristic of Michelin tyres. The second part of the single ground of appeal is well founded. However, it follows from the case-law of the Court of Justice that an error in law by the General Court does not invalidate the judgment under appeal if the operative part of the judgment is shown to be well founded on other legal grounds.
In this case, the error in law cannot lead to the setting aside of the judgment under appeal because the General Court could find that there was a likelihood of confusion between the marks at issue on the basis of other legal grounds. The marks had an average degree of visual similarity on three separate grounds, namely the dominant character of the letter ‘X’ in the mark applied for, the weakly distinctive character of the additional element ‘KING’ in that mark, and the similarity between the letter ‘X’ in that mark and the letter ‘X’ in the earlier French trade mark.
The appeal is dismissed in its entirely.
IPPT20170726, CJEU, Continental Reifen v Michelin