Corte di giustizia UE n. 207/2016

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 14 April 2016 ( * ) (Appeal — [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] of Justice — EU trade mark — [OSCURATO:PERSONA] (EC) No 207/2009 — Application for registration of the word mark [OSCURATO:PERSONA] — [OSCURATO:PERSONA] by the proprietor of the national word marks [OSCURATO:PERSONA] and the national figurative mark containing the word element ‘[OSCURATO:PERSONA]’ — Rejection of the opposition — [OSCURATO:PERSONA] 75 — Right to be heard — Obligation to state reasons — [OSCURATO:PERSONA] 8(1)(b) — Likelihood of confusion — Similarity between products) [OSCURATO:PERSONA] C‑480/15 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 10 September 2015, KS Sports IPCo GmbH, successor in law to BH Stores BV, established in Grünwald (Germany), represented by T. Dolde and P. Homann, Rechtsanwälte, and by M. Hawkins, Solicitor, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] (EUIPO), defendant at first instance, [OSCURATO:PERSONA] LLC, established in Wilmington ([OSCURATO:PERSONA]), intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. Toader, President of the [OSCURATO:PERSONA], A. Prechal and E. Jarašiūnas (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: M. [OSCURATO:PERSONA]Bordona, Registrar: A. [OSCURATO:PERSONA], having decided, after hearing the [OSCURATO:PERSONA], to give a decision by reasoned order, in accordance with [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By its appeal, KS Sports IPCo GmbH (‘KS Sports’), successor in law to BH Stores BV (‘BH Stores’), asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 2 July 2015 in BH Stores v OHIM — [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) (T‑657/13, EU:T:2015:449), (‘the judgment under appeal’), by which that [OSCURATO:PERSONA] dismissed its action for annulment of the decision of the [OSCURATO:PERSONA] of Appeal of the [OSCURATO:PERSONA] (EUIPO) of 16 September 2013 ([OSCURATO:PERSONA] R 1950/2012-2), given in opposition proceedings between BH Stores and [OSCURATO:PERSONA] LLC (‘the decision at issue’). Legal context 2 [OSCURATO:PERSONA] (EC) No 207/2009 of 26 February 2009 on the [OSCURATO:PERSONA] trade mark (OJ 2009 L 78, p. 1), which came into force on 13 April 2009, repealed and replaced [OSCURATO:PERSONA] (EC) No 40/94 of 20 December 1993 on the [OSCURATO:PERSONA] trade mark (OJ 1994 L 11, p. 1). In accordance with [OSCURATO:PERSONA] 166, second paragraph, of [OSCURATO:PERSONA] 207/2009, references to [OSCURATO:PERSONA] 40/94 are to be construed as references to [OSCURATO:PERSONA] 207/2009 and are to be read in accordance with the correlation table set out in Annex II to that regulation. 3 [OSCURATO:PERSONA] 8(1)(b) and (5) of [OSCURATO:PERSONA] 207/2009 provides: ‘1.      Upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered: ... (b)      if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark. ... 5.      Furthermore, upon opposition by the proprietor of an earlier trade mark …, the trade mark applied for shall not be registered where it is identical with or similar to the earlier trade mark and is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered, where, ... in the case of an earlier national trade mark, the trade mark has a reputation in the [OSCURATO:PERSONA] concerned and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.’ 4 Those provisions are identical to those of [OSCURATO:PERSONA] 8(1)(b) and (5) of [OSCURATO:PERSONA] 40/94. 5 [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 provides: ‘Decisions of the [OSCURATO:PERSONA] shall state the reasons on which they are based. They shall be based only on reasons or evidence on which the parties concerned have had [a]n opportunity to present their comments.’ Background to the case 6 On 27 December 2007, Panline U.S.A. Inc. filed an application with EUIPO for the registration as an EU trade mark of the word sign ‘[OSCURATO:PERSONA]’. 7 The goods in respect of which registration was sought are in Class 28 of the [OSCURATO:PERSONA] concerning the [OSCURATO:PERSONA] of Goods and Services for the Purposes of the Registration of [OSCURATO:PERSONA] of 15 June 1957, as revised and amended (‘the [OSCURATO:PERSONA]’), and correspond, for that class, after the restriction made in the course of the procedure before EUIPO, to the following description: ‘Children’s arts and crafts kits for making jewellery, string beads, cards, jungle dioramas, key chains, clothes accessories, … origami and kirigami, … stickers, glitter art, sand art, animal sculptures, models, collages, potions, personal fragrances, bath gels, personal diary and holiday keepsake books, photo albums, patterns on silk, fashion accessories (including lanyard, lovebeads and glow beads); children’s arts and crafts kits for use in painting, drawing, stencilling, colouring, clay modelling, dinosaur making and drawing and teaching alphabet and numbers (using flashcards, magnetic numbers and letters); paper craft hobby kits; masquerade party kits ; watch and watch band making kits; kid’s aprons sold as part of arts and crafts kits; children’s bath toys; and children’s educational and developmental activity toys; none of the previously mentioned goods including sporting articles’. 8 The EU trade mark application was published in [OSCURATO:PERSONA] 21/2008 of 26 May 2008. 9 On 26 August 2008, [OSCURATO:PERSONA], which was replaced by BH Stores, filed a notice of opposition to registration of the trade mark applied for. The opposition was based on the following earlier trade marks: –        two German word marks [OSCURATO:PERSONA], registered under numbers 1049274 and DD 648968, inter alia for ‘sporting articles’ in Class 28, within the meaning of the [OSCURATO:PERSONA], and –        the German figurative mark, registered under number 39925705, inter alia in respect of ‘sporting articles’ in Class 28 of the [OSCURATO:PERSONA], reproduced below: 10 The grounds relied on in support of that opposition were those referred to in [OSCURATO:PERSONA] 8(1)(b) and (5) of [OSCURATO:PERSONA] 40/94. 11 By decision of 3 October 2012, EUIPO’s [OSCURATO:PERSONA] rejected the opposition in its entirety. On 22 October 2012, BH Stores filed an appeal with EUIPO against that decision. On 21 May 2013, the application for registration of the EU trade mark at issue was assigned to [OSCURATO:PERSONA] LLC. 12 By the decision at issue, the [OSCURATO:PERSONA] of Appeal of EUIPO (‘the [OSCURATO:PERSONA] of Appeal’) confirmed the [OSCURATO:PERSONA] decision of 3 October 2012. Confining its review to the ground of opposition under [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009, BH Stores no longer relying on the argument based on [OSCURATO:PERSONA] 8(5) of that regulation, and holding that the opposition was restricted to ‘children’s bath toys’ and to ‘children’s educational and developmental activity toys’ in Class 28 of the [OSCURATO:PERSONA] (together, ‘the goods concerned’), the [OSCURATO:PERSONA] of Appeal held that those two categories of goods covered goods other than ‘sporting articles’ in the same class and that, consequently, there could be no likelihood of confusion, within the meaning of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009, the condition in respect of the identity or similarity of the goods at issue, essential to the application of that provision, not being satisfied. The proceedings before the [OSCURATO:PERSONA] and the judgment under appeal 13 By application lodged at the [OSCURATO:PERSONA] on 11 December 2013, BH Stores brought an action seeking the annulment of the decision at issue. In support of that action, BH Stores relied on two pleas in law, the first alleging infringement of [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009, in so far as it requires the Boards of Appeal to give reasons for their decisions, and the second alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of that regulation. 14 By the judgment under appeal, the [OSCURATO:PERSONA] dismissed BH Stores’ action as unfounded. Form of order sought by the appellant 15 By its appeal, KS Sports asks the [OSCURATO:PERSONA] to set aside the judgment under appeal, to refer the case back to the [OSCURATO:PERSONA] and to order EUIPO to pay the costs. The appeal 16 [OSCURATO:PERSONA] 181 of the [OSCURATO:PERSONA] of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss that appeal, in whole or in part. 17 It is appropriate to apply that provision to the present case. 18 In support of its appeal KS Sports relies on three grounds alleging infringement, respectively, of the right to a hearing under [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009, the requirement to give reasons under [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 and [OSCURATO:PERSONA] 36 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], and of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. The first ground of appeal, alleging infringement of the right to a hearing under [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 [OSCURATO:PERSONA] arguments 19 By its first ground of appeal, KS Sports argues that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 by omitting to censure the infringement, by the [OSCURATO:PERSONA] of Appeal, of the right of BH Stores to a hearing before it, which is guaranteed by that article. In that regard, KS Sports submits that the [OSCURATO:PERSONA] failed to address the fact that the [OSCURATO:PERSONA] of Appeal did not inform BH Stores of the filing, by [OSCURATO:PERSONA] LLC, of observations in reply to its statement setting out the grounds on which it based its action before the [OSCURATO:PERSONA] of Appeal, nor did it communicate those observations to BH Stores, whereas they should have been communicated. BH Stores did not, consequently, have the opportunity to reply to those grounds. Furthermore, those observations were filed late and therefore should not have been taken into account by the [OSCURATO:PERSONA] of Appeal, whereas they were, nonetheless, taken into account. 20 That ground, alleging infringement of [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009, was it claims raised in the application for a hearing lodged at the [OSCURATO:PERSONA] by BH Stores owing to the fact that BH Stores only knew about the content of those observations because [OSCURATO:PERSONA] LLC annexed them to its reply lodged with the [OSCURATO:PERSONA]. [OSCURATO:PERSONA], by omitting to rule on that ground, disregarded the infringement of BH Stores’ right to be heard by the [OSCURATO:PERSONA] of Appeal. Findings of the [OSCURATO:PERSONA] 21 It is clear from the judgment under appeal that the [OSCURATO:PERSONA] did not rule on the argument presented by BH Stores in its application for a hearing alleging that the [OSCURATO:PERSONA] of Appeal had failed to communicate [OSCURATO:PERSONA] LLC’s observations presented in reply to the pleading setting out the grounds of action and that the [OSCURATO:PERSONA] had failed to take into account that those observations were lodged out of time. 22 However, it is apparent from the file relating to the proceedings before the [OSCURATO:PERSONA] that that argument was not included in the application initiating proceedings, the plea alleging infringement of [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009, as raised in that application, only relating to the infringement of the first sentence of that provision requiring Boards of Appeal to give reasons for their decisions. 23 In accordance with [OSCURATO:PERSONA] 48(2) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], in the version in force on the date on which that application for a hearing was lodged, and in accordance with [OSCURATO:PERSONA] 84(1) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], in the version which came into force on 1 July 2015, that being the day before the delivery of the judgment under appeal, the introduction of new pleas in law in the course of proceedings is not permitted unless those pleas are based on matters of law or fact which came to light in the course of the procedure. 24 However, in the present case, paragraph 14 of the decision at issue refers to the date on which the observations in question were lodged with the [OSCURATO:PERSONA] of Appeal and paragraph 16 of that decision contains a summary of those observations. It follows, therefore, from those paragraphs that those observations were taken into account by the [OSCURATO:PERSONA] of Appeal as, moreover, KS Sports points out in its appeal. BH Stores was, therefore, in a position to raise those alleged irregularities in its application initiating proceedings. 25 It follows that even if in the argument presented in its application for a hearing which indeed did not contain, in the part which was the subject of the first ground of appeal, any reference to [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 or to the right to a hearing before the [OSCURATO:PERSONA] of Appeal BH Stores intended to raise a plea in law for the annulment of the decision at issue, that plea would, in any event, have constituted a new plea within the meaning of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA]. 26 It follows that the first ground of appeal must be rejected. The second ground of appeal, alleging infringement of the obligation to state reasons pursuant to [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 and [OSCURATO:PERSONA] 36 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] arguments 27 By its second ground of appeal, KS Sports argues that the [OSCURATO:PERSONA] of Appeal and the [OSCURATO:PERSONA], in order to satisfy the obligation to state reasons under, respectively, [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 and [OSCURATO:PERSONA] 36 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], must address, at least implicitly and in general, all the arguments put forward before them, and they have not done so. 28 In relation to the assessment of the similarity of the goods at issue in the present case, there are two conflicting [OSCURATO:PERSONA] judgments, namely the judgment in i-content v OHIM — Decathlon (BETWIN) (T‑514/11, EU:T:2013:291), in which the [OSCURATO:PERSONA] held that ‘sporting articles’ and ‘games’ are not similar and the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448), in which the [OSCURATO:PERSONA] held that ‘sporting articles’ and ‘games’ are similar. 29 However, the [OSCURATO:PERSONA] held that the [OSCURATO:PERSONA] of Appeal had satisfied the obligation to give reasons when it restricted itself to reproducing, in its decision, some of the grounds for the first of those judgments without explaining the reasons why the arguments put forward before it were not capable of leading to a different conclusion and why the reasoning followed in that judgment was also applicable to the case before it. In so ruling, the [OSCURATO:PERSONA] erred in law. Furthermore, the [OSCURATO:PERSONA] of Appeal failed to take account of the second of those judgments which led, in relation to the question of the similarity of the goods at issue, to a decision contrary to that in the present case. Contrary to what was held by the [OSCURATO:PERSONA] in paragraph 44 of the judgment under appeal, the [OSCURATO:PERSONA] of Appeal was required to state the reasons for which it had chosen to follow one judgment of the [OSCURATO:PERSONA] rather than another. 30 Moreover, the [OSCURATO:PERSONA], in paragraphs 59, 65 and 93 of the judgment under appeal, infringed its obligation to state reasons under Articles 36 and 53 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] by merely replicating the reasoning already followed in the first of those judgments without explaining, even implicitly, the reasons why the reasoning in that judgment should prevail over that in the second judgment and why the second judgment did not apply to the case before it. Findings of the [OSCURATO:PERSONA] 31 In the first place, in so far as by its second ground KS Sports criticises the decision under appeal as containing an insufficient statement of reasons, in particular in the light of the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448), suffice it to note that arguments in an appeal which criticise the decision whose annulment was applied for before the [OSCURATO:PERSONA], rather than the judgment delivered by the [OSCURATO:PERSONA] following that application for annulment, are inadmissible (orders in [OSCURATO:PERSONA] v OHIM , C‑624/11 P, EU:C:2012:598, paragraph 35, and [OSCURATO:PERSONA] v OHIM , C‑670/13 P, EU:C:2014:2024, paragraph 51). That argument must, therefore, be dismissed as being manifestly inadmissible. 32 In the second place, in so far as by its second ground of appeal KS Sports claims that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 75 of [OSCURATO:PERSONA] 207/2009 by considering that the [OSCURATO:PERSONA] of Appeal had complied with its obligation to state reasons, it should be noted, first, that in accordance with the [OSCURATO:PERSONA] settled case-law, the obligation for EUIPO to state reasons for its decisions in accordance with [OSCURATO:PERSONA] 75, first sentence, of [OSCURATO:PERSONA] 207/2009 has the same scope as that which derives from [OSCURATO:PERSONA] 296, second paragraph, TFEU which requires that the statement of reasons must disclose in a clear and unequivocal manner the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review, without it being necessary for that reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets those requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, to that effect, judgment in KWS Saat v OHIM , C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65 and the case-law cited). 33 In the present case, the [OSCURATO:PERSONA] noted, in paragraph 32 of the judgment under appeal that ‘it [was] clear from paragraph 25 of the decision at issue that … the [OSCURATO:PERSONA] of Appeal considered that the finding in the judgment in [ i-content v OHIM — Decathlon (BETWIN) (T‑514/11, EU:T:2013:291)] … was applicable “by extension” to the goods at issue in the present case’. It also held, in paragraph 33 of the judgment under appeal, that ‘the [OSCURATO:PERSONA] of Appeal drew on the reasoning in [that judgment] by stating, in paragraph 25 of the decision at issue, that it considered [it] to be relevant for conclusively rebutting the arguments put forward by [BH Stores]’. It noted, in paragraphs 34 and 35 of the judgment under appeal, the content of paragraphs 26 and 27 of the decision at issue. Furthermore, it is common ground that the content of the decision at issue has not been distorted by the [OSCURATO:PERSONA]. 34 In the light of those factors and having regard to the [OSCURATO:PERSONA] settled case-law set out in paragraph 32 of the present order and, moreover, referred to by the [OSCURATO:PERSONA] in paragraphs 29 and 30 of the judgment under appeal, the [OSCURATO:PERSONA] clearly did not err in law in holding, in paragraph 36 of that judgment, that, ‘contrary to what [BH Stores] claims, the relevant facts and the legal considerations having decisive importance in the context of the decision at issue are clearly set out in [that decision] and that they inform [BH Stores] of the justification for [that decision] so that it can protect its rights and enable the EU judicature to exercise its power to review the legality of the decision’. 35 Furthermore, while it is true that, in paragraph 37 of the judgment under appeal, the [OSCURATO:PERSONA] considered that ‘nothing in principle … prevent[s] the [OSCURATO:PERSONA] of Appeal from following the reasoning of a judgment of the EU judicature, if it considers that it applies to the case in question’, it must be noted that that paragraph was set out in the alternative as is shown by the use of the expression ‘moreover’ at the beginning of that paragraph and the fact that that paragraph comes after the finding in paragraph 36 of that judgment. Therefore, any criticism directed at that paragraph is, in any event, ineffective. 36 Next, it is also settled case-law of the [OSCURATO:PERSONA] that the decisions which the Boards of Appeal of EUIPO are called on to take under [OSCURATO:PERSONA] 207/2009, concerning registration of a sign as an EU trade mark, are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of the decisions of the Boards of Appeal of EUIPO must be assessed solely on the basis of that regulation as interpreted by the EU judicature and not on the basis of a previous decision-making practice (judgment in Alcon v OHIM , C‑412/05 P, EU:C:2007:252, paragraph 65 and case-law cited). 37 Furthermore, EUIPO must take into account the decisions already taken and consider with especial care whether it should decide in the same way or not. Respect for the principle of legality requires that all applications for registration must be stringent and full and take place in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case (see, to that effect, judgment in [OSCURATO:PERSONA] v OHIM , C‑51/10 P, EU:C:2011:139, paragraphs 73 to 77, and the order in Asa v OHIM , C‑354/12 P, EU:C:2013:238, paragraph 41). 38 It follows that the [OSCURATO:PERSONA] was fully entitled to hold, in paragraph 43 of the judgment under appeal, that ‘given that the [OSCURATO:PERSONA] of Appeal sufficiently set out the facts and the legal considerations having decisive importance in the context of the decision at issue, it was not required to give specific reasons in order to justify its decision relating to EUIPO’s earlier decisions cited in the parties’ written pleadings or relating to EU case-law’. 39 Last, as to KS Sports’ criticism of paragraph 44 of the judgment under appeal, suffice it to note that the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448), in the light of which the [OSCURATO:PERSONA] should, according to KS Sports, have required the [OSCURATO:PERSONA] of Appeal to give reasons for the decision at issue, was given on 16 September 2013, that being the same day as that on which that decision was taken. It could not, therefore, be expected that the [OSCURATO:PERSONA] of Appeal take that judgment into account in the decision. Furthermore, as is apparent from the use of the expression ‘in addition’ and the positioning of that paragraph after the conclusion appearing in paragraph 43 of the judgment under appeal, paragraph 44 was set out by the [OSCURATO:PERSONA] in the alternative. Any criticism directed towards the [OSCURATO:PERSONA] statement in the same paragraph that ‘[a [OSCURATO:PERSONA] of Appeal] cannot be required to comment on every judgment of the EU judicature’ is, therefore, in any event, ineffective. 40 Having regard to the foregoing considerations, it is manifestly without infringing [OSCURATO:PERSONA] 75, first sentence, of [OSCURATO:PERSONA] 207/2009 that the [OSCURATO:PERSONA] rejected, in the judgment under appeal, the ground alleging infringement by the [OSCURATO:PERSONA] of Appeal of that provision. 41 In the third place, in so far as by its second ground of appeal KS Sports claims that the [OSCURATO:PERSONA], in paragraphs 59, 65 and 93 of the judgment under appeal, infringed its obligation to give reasons by not explaining why it applied the judgment in i-content v OHIM — Decathlon (BETWIN) (T‑514/11, EU:T:2013:291) and not the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448), it should be observed that the obligation on the [OSCURATO:PERSONA] to state reasons in accordance with Articles 36 and 53, first subparagraph, of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA] is satisfied where, even implicitly, the reasoning given enables the persons concerned to know why the [OSCURATO:PERSONA] has not upheld their arguments and provides the [OSCURATO:PERSONA] of Justice with sufficient material for it to exercise its power of review (see, to that effect, inter alia, judgment in Edwin v OHIM , C‑263/09 P, EU:C:2011:452, paragraph 64). 42 In the present case, in paragraph 93 of the judgment under appeal, the [OSCURATO:PERSONA] held that ‘with regard to the reasoning based on the judgment in [ Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448)], it is apparent from paragraphs 59 and 65 [of the judgment under appeal] that it cannot be transposed to the present case’. 43 In paragraph 59, the [OSCURATO:PERSONA] considered that ‘contrary to what [BH Stores] maintains’, relying, as is apparent from paragraph 57 of the judgment under appeal, on the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448), ‘the existence of a simplified form and a reduced size for “children’s educational and developmental activity toys” makes it possible precisely to distinguish them from, and not to confuse them with, “sporting articles”’, that, ‘in the present case, “children’s educational and developmental activity toys” … are aimed at relatively young children and can be distinguished from “sporting articles” (even if they imitate them) by a lower level of technicality, a different appearance (reduced size, light weight), safety appropriate for children … and a generally lower price’, and that ‘that reasoning applies a fortiori to “children’s bath toys” which have no “sporting” equivalent’. 44 In addition, as is apparent from paragraph 62 of the judgment under appeal, it is also in reply to BH Stores’ argument relating to the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448) that the [OSCURATO:PERSONA] held, in paragraph 65 of the judgment under appeal, that ‘the existence of a “fluid transition” or an area of overlap between two categories of goods with essentially different purposes does not mean that all the goods concerned by those categories of goods are similar’. 45 Furthermore, contrary to what is pleaded by KS Sports, it is apparent from the judgment in i-content v OHMI — Decathlon (BETWIN) (T‑514/11, EU:T:2013:291) that neither paragraph 59 nor paragraph 65 of the judgment under appeal simply reproduce the reasoning in that first judgment. 46 It follows from the above that, in the paragraphs of the judgment under appeal that are challenged, the [OSCURATO:PERSONA] set out the reasons why it held, in the light of the facts and arguments before it, that the judgment in Knut IP Management v OHIM — [OSCURATO:PERSONA] (KNUT — [OSCURATO:PERSONA]) (T‑250/10, EU:T:2013:448) was not relevant to the present case despite the arguments to the contrary put before the [OSCURATO:PERSONA] by BH Stores and did so without merely reproducing the reasoning in the judgment in i-content v OHIM — Decathlon (BETWIN) (T‑514/11, EU:T:2013:291). It must, therefore, be held that the [OSCURATO:PERSONA] fulfilled its obligation to state reasons. 47 In that regard, the fact that KS Sports disagrees with the reasoning of the [OSCURATO:PERSONA] in paragraphs 59, 65 and 93 cannot establish the existence of a failure to state reasons in the judgment under appeal, where such a disagreement relates to whether that reasoning is well founded. (see, to that effect, judgment in [OSCURATO:PERSONA] v Commission , C‑40/12 P, EU:C:2013:768, paragraph 46 and the case-law cited). 48 In those circumstances, KS Sports’ argument alleging infringement by the [OSCURATO:PERSONA] of its obligation to state reasons must be rejected as manifestly unfounded and, consequently, the second ground of appeal must be rejected in its entirety as being in part manifestly inadmissible and in part manifestly unfounded. The third ground of appeal, alleging infringement of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 The appellant’s arguments 49 By its third ground of appeal, KS Sports argues that the [OSCURATO:PERSONA], in its assessment of the similarity of the goods at issue, infringed [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 in five respects. 50 First, as the list of goods set out in the application for registration did not contain a detailed description of the goods at issue and the category ‘children’s bath toys; and children’s educational and development activity toys, none of the aforementioned goods including sporting articles’ could include numerous completely different items, the [OSCURATO:PERSONA], in order to properly compare the goods in question, would have had to first interpret that list in the light of the [OSCURATO:PERSONA] and from a commercial perspective in order to determine precisely the goods to be compared. By not doing so and, in paragraph 55 of the judgment under appeal, by not requiring the [OSCURATO:PERSONA] of Appeal to do so, it infringed [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. 51 [OSCURATO:PERSONA], the [OSCURATO:PERSONA] infringed that provision by applying incorrect criteria in its assessment of the similarity of the goods at issue. In order to conclude that two items are similar it is not necessary for the relevant consumer to confuse them. In paragraphs 59 and 66 of the judgment under appeal, the [OSCURATO:PERSONA], by stating that the goods at issue were not similar because the relevant consumer would not confuse them, itself confused the examination of the likelihood of confusion with that of the similarity of the goods, which should be performed according to different criteria. 52 Third, the [OSCURATO:PERSONA] infringed that provision by holding that there was no similarity between the goods at issue as a whole, whereas it acknowledged, in paragraphs 65 and 77 of the judgment under appeal, that there was an area of overlap, and therefore of similarity, between some of the goods. According to case-law, where two categories of goods coincide partially they are considered identical if they are within the same class of the [OSCURATO:PERSONA] and within the same general indication in the class heading and if it is impossible to clearly separate the goods concerned. The same applies concerning the question of the similarity of those goods. 53 Having found that an overlap existed in paragraphs 65 and 77, the [OSCURATO:PERSONA] should have evaluated whether it was possible to identify subcategories of the contested goods and to assess the existence of a similarity with ‘sporting articles’ in respect of each of those subcategories. If a division into subcategories was not possible, the [OSCURATO:PERSONA], since it had held that some of the goods at issue were similar, would necessarily have had to conclude that they were similar as a whole. 54 Fourth, factors allowing the similarity of goods at issue to be established should be subject to a global assessment in which all the relevant factors are weighed in accordance with their respective importance in relation to the goods at issue. However, the [OSCURATO:PERSONA] evaluated each of those relevant factors separately without mentioning any relation between them or weighing them and without assessing the impact of the combination of common characteristics on their degree of similarity, thereby infringing [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009. If it had conducted a proper examination and, therefore, if it had weighed the factors set out in paragraphs 58, 60, 62, 64, 65, 69, 74, 78, 82, 83 and 87 of the judgment under appeal in a global assessment, it would have inevitably reached the conclusion that the goods at issue were at least remotely similar. 55 Fifth, the [OSCURATO:PERSONA], in its assessment of the similarity of the goods at issue, distorted the facts in paragraphs 59, 60, 64, 69, 76, 82 and 87 of the judgment under appeal. For instance, the fact that two products are used in the same way cannot be categorised as insignificant on the sole basis that cleaning equipment is used in the same way as sporting articles, namely with physical force. Likewise, the use of sporting articles for leisure purposes and the use of activity toys for physical exercise cannot be categorised as diverted or occasional use. Furthermore, the goods in respect of which registration is applied for cover, inter alia, ‘children’s educational activity toys’ and ‘children’s developmental activity toys’ and there was no reason to consider, as did the [OSCURATO:PERSONA], that their purpose was ‘specifically educational’. [OSCURATO:PERSONA] also distorted the facts by stating that the goods at issue were for young children and not for children in general. Likewise, in its assessment of the distribution channels, the [OSCURATO:PERSONA] distorted the facts by stating, in order to deny the relevance of certain evidence presented, that the fact that the goods at issue could be manufactured by the same undertakings and offered through the same distribution channels were marginal phenomena and that only very well-known sports brands produce activity toys. Findings of the [OSCURATO:PERSONA] 56 In the first place, to the extent that by its third ground of appeal KS Sports complains that the [OSCURATO:PERSONA] failed, prior to its analysis of the similarity of the goods concerned, to identify, from the two categories of contested goods, subcategories of goods, it should be observed that the extent of the protection afforded by a trade mark is in principle determined by the nature and the number of goods and services identified in the registration application (see, to that effect, order in CFCMCEE v OHIM , C‑282/09 P, EU:C:2010:153, paragraph 37 and the case-law cited, and the judgment in [OSCURATO:PERSONA] of [OSCURATO:PERSONA] , C‑307/10, EU:C:2012:361, paragraphs 37 and 49). 57 It follows that, for the purposes of the examination of the similarity of the goods or services at issue, it is neither for the [OSCURATO:PERSONA] nor the [OSCURATO:PERSONA] of Appeal to first identify, from each of the categories or each of the types of goods or services in respect of which registration of a trade mark is applied for, the specific goods or services within those categories or types which could be marketed by the applicant. In particular, as the specific circumstances in which the goods or services at issue are marketed may vary over time and depending on the wishes of the applicant, those circumstances cannot be taken into account in the prospective analysis of the likelihood of confusion (see, to that effect, judgment in T.I.M.E. ART v OHIM , C‑171/06 P, EU:C:2007:171, paragraph 59). That examination must therefore, as to the goods or services for which registration of a trade mark is applied for, be performed in the light of the wording of the list of goods or services for which registration is applied for as it appears in the registration application or, where appropriate, as delimited in the course of the proceedings. 58 Furthermore, it is not disputed in the present case that the list of the goods in respect of which registration is applied for, and in particular the list of the contested goods, does not merely reproduce the general indications included in the heading for Class 28 of the [OSCURATO:PERSONA]. It, therefore, manifestly satisfies the requirements of clarity and precision. 59 In those circumstances, it is without erring in law that, in paragraph 55 of the judgment under appeal, the [OSCURATO:PERSONA] held that ‘the [OSCURATO:PERSONA] of Appeal was … not required to identify the specific goods covered by the mark applied for’ and held implicitly that it was not required to do so either. The first argument is, consequently, manifestly unfounded. 60 In the second place, in so far as by its third ground of appeal KS Sports claims that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 by confusing the criteria for assessing the similarity of the goods at issue and those for assessing the likelihood of confusion, within the meaning of that provision, it suffices to note that that argument is based on a misreading of the judgment under appeal. 61 It is true that in paragraph 59 of that judgment, in its analysis of the nature of the goods at issue, the [OSCURATO:PERSONA] noted that ‘the existence of a simplified form and a reduced size for “children’s educational and developmental activity toys” makes it possible precisely to distinguish them from, and not to confuse them with, “sporting articles”’, and in paragraph 66 of that judgment, in its assessment of the intended use of the goods at issue, it held that ‘the fact that two products may, to a certain extent, satisfy the same need does not prevent the relevant consumer from perceiving them as two distinct products’. 62 However, the use by the [OSCURATO:PERSONA] of the words ‘confuse’ and ‘distinct’ in those paragraphs was only in respect of their usual meaning in everyday language in order to establish that the goods in question were not similar and made no reference to the concept of likelihood of confusion, within the meaning of [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009, which relates, according to the [OSCURATO:PERSONA] settled case-law, to the risk that the public might believe that the goods or services at issue come from the same undertaking or from economically linked undertakings (see, inter alia, judgment in Isdin v Bial-Portela , C‑597/12 P, EU:C:2013:672, paragraph 17 and the case-law cited). Consequently that argument, having no factual basis, is manifestly unfounded. 63 In the third place, in so far as in the present ground of appeal KS Sports claims that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 by concluding that there was no overall similarity between the goods at issue although it had held, in paragraphs 65 and 77 of the judgment under appeal, that some of those goods were similar, it must be held that that argument is also based on a misreading of the judgment under appeal. 64 It is true that in paragraph 65 of the judgment under appeal, in its assessment of the intended use of the goods at issue, the [OSCURATO:PERSONA] observed that ‘the existence of a “fluid transition” or an area of overlap between two categories of goods with essentially different purposes does not mean that all the goods concerned by those categories of goods are similar’. However, contrary to KS Sports’ contention, the [OSCURATO:PERSONA] did not consider that that ‘fluid transition’ or that ‘overlap’ was to be understood as establishing a similarity, even partial, of the goods in question nor indeed did it hold that such a ‘fluid transition’ or ‘overlap’ existed in the present case. 65 The purpose of the abovementioned paragraph, which begins with the words ‘it follows’, was simply for the [OSCURATO:PERSONA] to conclude from the finding that it made in paragraph 64 of the same judgment — which is not disputed in the present argument — that ‘the fact that one purpose … does not exclude another purpose … and that both purposes may be “interconnected” in a product … does not rule out the possibility of identifying a dominant, or in other words “primary” purpose of a product’, and that ‘“use” means the generally intended use of the product and not any diverted or occasional use’. That conclusion was, furthermore, drawn with the purpose of rejecting the argument presented by BH Stores, and set out in paragraph 62 of the judgment under appeal, that the intended use of the goods at issue was identical, particularly because of the existence of a ‘fluid transition’ between the use of sporting articles and those for games. 66 Moreover, paragraph 77 of the judgment under appeal offers no indication whatsoever that the [OSCURATO:PERSONA] found that even a partial similarity existed between the goods at issue. In addition, to the extent that KS Sports criticises the fact that the [OSCURATO:PERSONA] held, in that paragraph, that the goods at issue were different in character despite the similarity that it found in paragraph 65 of that judgment, it suffices to note that that contention is based on the premiss that the [OSCURATO:PERSONA] found, in paragraph 65, that there was at least a partial similarity between the goods at issue, at least in relation to their intended use, a premiss which was held to be incorrect in paragraphs 64 and 65 of the present order. 67 Therefore, the third argument raised in support of the third ground of appeal must be rejected as manifestly unfounded. 68 In the fourth place, to the extent that KS Sports complains that the [OSCURATO:PERSONA] infringed [OSCURATO:PERSONA] 8(1)(b) of [OSCURATO:PERSONA] 207/2009 by not conducting a global assessment of all the relevant factors allowing the similarity of the goods at issue to be established and, in particular, by not taking into account the various elements of similarity allegedly noted in paragraphs 58, 60, 62, 64, 65, 69, 74, 78, 82, 83 and 87 of the judgment under appeal, it must be pointed out that that argument is also based on an misreading of the judgment under appeal. 69 In order to assess whether the goods or services at issue are similar or identical, all the relevant factors relating to the link between those goods or those services should be taken into account. Those factors include, inter alia, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (see judgment in [OSCURATO:PERSONA] v OHIM , C‑16/06 P, EU:C:2008:739, paragraph 65 and the case-law cited). 70 However, it is apparent in the present case from reading the judgment under appeal as a whole that the [OSCURATO:PERSONA] did indeed carry out that global assessment to establish whether or not the goods at issue were similar. 71 Accordingly, first, in paragraphs 57 to 61 of the judgment under appeal, the [OSCURATO:PERSONA] considered the nature of those goods, focusing on their composition, their form, their size and their use and, after its examination of those different factors, held that the toys, in respect of which registration was applied for, were different in nature to the sporting articles covered by the earlier marks. [OSCURATO:PERSONA], in paragraphs 62 to 79 of that judgment, after having considered the interchangeability, complementarity, purpose, whether they are in competition or not and the customers for the goods at issue, the [OSCURATO:PERSONA] held that those goods had a different purpose. Third, in paragraphs 80 to 87 of that judgment, the [OSCURATO:PERSONA] dealt with the question of the undertakings usually manufacturing those goods and the establishments selling them and the evidence provided by BH Stores in that respect and held that the goods at issue had different distribution and manufacturing channels. 72 Therefore, it was clearly without failing to carry out the global assessment required by the case-law referred to in paragraph 69 of the present order that the [OSCURATO:PERSONA] held, in paragraph 91 of the judgment under appeal, that ‘for the reasons set out above, the [OSCURATO:PERSONA] of Appeal did not err in its assessment in finding that the goods at issue were different’. 73 Furthermore, to the extent that by its fourth argument KS Sport seeks to call into question the conclusions which the [OSCURATO:PERSONA] reached at each of the stages in its assessment and to maintain that a proper weighting of the relevant factors should have led the [OSCURATO:PERSONA] to conclude that there was a similarity which was ‘at least remote’ between the goods at issue, suffice it to note that such an argument seeks to call into question assessments of a factual nature without in any way claiming that the [OSCURATO:PERSONA] distorted the facts before it and that consequently it is manifestly inadmissible (see, to that effect, order in [OSCURATO:PERSONA] v OHIM , C‑142/14 P, EU:C:2015:371, paragraphs 47 to 51, and judgment in Hesse v OHIM , C‑50/15 P, EU:C:2016:34, paragraphs 26 and 27). 74 The fourth argument raised in support of the third ground of appeal must, therefore, be rejected as being in part manifestly unfounded and in part manifestly inadmissible. 75 In the fifth place, in so far as KS Sports in its argument set out in paragraph 55 of the present order relies on a distortion of the facts and evidence, it must be held that the alleged distortion does not satisfy the criteria required in the case-law that such a distortion must be obvious from the documents on the [OSCURATO:PERSONA] file without any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment in [OSCURATO:PERSONA] v OHIM , C‑254/09 P, EU:C:2010:488, paragraphs 49 and 50 and the case-law cited). That argument, therefore, just calls into question factual assessments carried out by the [OSCURATO:PERSONA] and, as a result, in accordance with the case-law referred to in paragraph 73 of the present order, is manifestly inadmissible. 76 In the light of all the foregoing considerations, the third ground of appeal must be rejected as being in part manifestly inadmissible and in part manifestly unfounded and, therefore, the appeal must be dismissed in its entirety. Costs 77 [OSCURATO:PERSONA] 137 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA], applicable to the procedure on appeal pursuant to [OSCURATO:PERSONA] 184(1) of those rules, a decision as to costs is to be given in the order which closes the proceedings. 78 As the present order has been adopted prior to notification of the appeal to the defendant at first instance and, therefore, before the latter has incurred costs, it is appropriate to decide that KS Sports must bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. KS Sports IPCo GmbH shall pay its own costs. [Signatures] * Language of the case: English.