The General Court did not err in law in finding that on the date on which the application for registration of the contested Gugler Community trade mark was filed, an economic link existed between Gugler France and Gugler GmbH (which precluded the finding of a likelihood of confusion): in CJEU Schweppes (IPPT20171220), it has not been held that the existence of an economic link presupposes a particular order between the undertakings concerned.
In the judgment under appeal, the General Court held that the First Board of Appeal of EUIPO erred in finding that there was a likelihood of confusion between Gugler and Gugler France, since, in essence, the economic link between Gugler France and Gugler GmbH on the date on which the application for registration of the contested mark was filed precluded any finding that there was such a likelihood.
The CJEU finds that the General Court did not err in law. According to the CJEU, the General Court did not in any way presuppose the existence of a legal rule whereby the assessment of an economic link between two undertakings, such as Gugler GmbH and Gugler France, must use as its point of departure just one of them, in the present case Gugler GmbH, proprietor of the contested mark, without any assessment using as its point of departure the other undertaking. The General Court simply found that the economic link that existed between Gugler France and Gugler GmbH, on the date on which the application for registration of the contested mark was filed, precluded any finding of a likelihood of confusion.
Moreover, the case-law to which Gugler refers does not cast any doubt on that approach. It is not apparent from the Schweppes-judgment (IPPT20171220) that, in order to establish the existence of a likelihood of confusion, within the meaning of Article 8(4) of Regulation No 207/2009 and, consequently, of Article L. 711‑4 of the French Intellectual Property Code, the economic link should be assessed on the basis of the link of the proprietor of the earlier rights to the applicant for the trade mark in question.
IPPT-version to follow.