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Alert: Court of Justice dismisses appeal in XKING opposition (Continental Reifen v Michelin)

Published on: 26 July 2017
Published by: LexisPSL
  • Alert: Court of Justice dismisses appeal in XKING opposition (Continental Reifen v Michelin)
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Article summary

IP analysis: The Court of Justice has dismissed an appeal filed by Continental Reifen Deutschland GmbH (CR) against a decision of the General Court in an opposition case. Compagnie générale des établissements Michelin (Michelin) had filed an opposition in respect of CR’s trade mark application for the figurative sign XKING in respect of tyres and inner tubes for tyres in class 12, based on its earlier French figurative trade mark registration for the letter ‘x’ in class 12. The General Court had annulled a decision of the Fourth Board of Appeal of the EUIPO which rejected the opposition. CR raised a single ground of appeal, alleging infringement of Article 8(1)(b) of Regulation (EC) 207/2009. The appeal was divided into four parts, alleging that the General Court had (1) distorted certain evidence which led to its conclusion that the letter ‘x’ in the earlier French trade mark did not designate a characteristic of the tyres, (2) erred in law in its assessment of the distinctive and dominant elements of the mark applied for, (3) wrongly held that the marks at issue had an average degree of visual and phonetic similarity, and (4) erred in law in finding there to be a likelihood of confusion between the marks at issue. The Court of Justice upheld the claim that the General Court’s reading of certain brochures submitted as evidence in the proceedings was marred by a material inaccuracy because it had not appreciated that the brochures clearly showed that the stylised letter ‘x’ was used to designate a technical characteristic of Michelin’s tyres, namely their tread pattern, and had therefore distorted the evidence. The General Court had based its assessment of the inherent distinctiveness of the earlier mark on its distortion of the evidence and had therefore erred in law in finding that the earlier mark had a normal degree of inherent distinctiveness. However, the Court of Justice dismissed the other grounds of appeal and found that the operative part of the General Court’s judgment was well founded on other legal grounds. In the circumstances, it dismissed the appeal. In the course of its analysis, it made some helpful comments in relation to the distinctiveness of single letters of the alphabet in trade marks. or take a trial to read the full analysis.

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