Paice v EUIPO - Blackmore (DEEP PURPLE) (EU trade mark - Judgment) [2018] EUECJ T-328/16 (04 October 2018)

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(EU trade mark — Opposition proceedings — Application for the EU word mark DEEP PURPLE — Earlier non-registered mark DEEP PURPLE — Relative ground for refusal — Article 8(4) of Regulation (EC) No 207/2009 (now Article 8(4) of Regulation (EU) 2017/1001) — Rules governing common-law action for passing-off — No likelihood of misrepresentation)

Ian Paice, residing in London (United Kingdom), represented by M. Engelman, Barrister, and J. Stephenson, Solicitor,

European Union Intellectual Property Office (EUIPO), represented by D. Gája and D. Walicka, acting as Agents,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Richard Hugh Blackmore, residing in New York, New York (United States), represented initially by A. Edwards-Stuart, and subsequently by T. Alkin, Barristers,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 21 March 2016 (Case R 736/2015-5), relating to opposition proceedings between Mr Paice and Mr Blackmore,

composed of A.M. Collins (Rapporteur), President, M. Kancheva and R. Barents, Judges,

having regard to the response of EUIPO lodged at the Court Registry on 22 September 2016,

having regard to the response of the intervener lodged at the Court Registry on 23 September 2016,

1 On 26 April 2013, the intervener, Mr Richard Hugh Blackmore, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2 Registration as a mark was sought for the word sign DEEP PURPLE. Deep Purple is the name of a United Kingdom rock band formed in 1968, inter alia, by the applicant, Mr Ian Paice, and the intervener, who were later joined by other members. Despite the intervener’s departure from the group in 1993, the applicant and other members carried on and continue to give concerts and record new albums under the name Deep Purple.

3 The goods and services in respect of which registration was sought are in Classes 9, 25 and 41 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond for each of those classes, to the following description:

– Class 9: ‘Audio/video recordings of musical performances; phonograph records; musical recordings, including downloadable and physical media versions; downloadable music files; digital music (downloadable) provided from the internet; digital music (downloadable) provided from MP3 internet websites; mouse mats and mouse pads; sound recordings; video recordings; recorded media, computer hardware and firmware; downloadable electronic publications; digital music; mouse mats; mobile phone accessories; sunglasses; audio recordings featuring music; video recordings featuring music; audio tapes featuring music; DVDs featuring music; compact discs featuring music; digital music downloadable from the internet; downloadable MP3 files, MP3 recordings, webcasts and podcasts featuring music; downloadable video recordings featuring music; phonograph records featuring music; pre-recorded video cassettes featuring music; cinematographic films; animated cartoons; film strips; movies; magnetic recordings; optical recordings; electronic books and publications; computer games; software for interactive games for computer, mobile phones and handheld devices; digital recordings; media bearing, or for recording, sound and/or video and/or data and/or information; digital games, mobile phone games; DVD games; radio, television, cable and satellite recordings; sound, video, data, interactive software and multimedia recordings, including recordings in electronic, magnetic or optical form; publications in electronic, magnetic or optical form; pre-recorded digital sound and video storage media; compact discs; compact disc ROMs; mini-discs; digital audio tapes, cassettes, computer chips and discs; digital video tapes, cassettes, computer chips and discs; computer software and computer programs; compact discs, records, pre-recorded audio and video tapes; computer programs; computer games; pre-recorded compact discs and records’;

– Class 25: ‘Clothing, footwear, headgear; pique shirts; polo shirts; rugby shirts; shirts; sport shirts; sweat shirts; t-shirts; baseball caps; golf caps; knitted caps; shower caps; men’s and women’s jackets, coats, trousers; rain jackets; rainproof jackets; sweat jackets; track jackets; wind resistant jackets’;

– Class 41: ‘Entertainment services; musical performances by a musical group; publishing services; entertainment in the nature of visual and audio performances, namely, musical band, rock group; entertainment, namely, live performances by groups; entertainment services, namely, providing non-downloadable pre-recorded music, information in the field of music, and commentary and articles about music, all on-line via a global computer network; entertainment, namely, live music concerts; provision of information relating to music; entertainment services in the nature of live performances; entertainment, namely, live concerts; presentation of live show performances; provision of information relating to live entertainment; provision of entertainment by means of radio, television, satellite, cable, telephone, the worldwide web and the internet; rental of sound recordings and of pre-recorded shows, films, radio and television performances; television entertainment; sound recording, film and video production and distribution services; digital music (not downloadable) provided from the internet and/or websites on the internet; providing on-line electronic publications (not downloadable); publication of books, magazines and other texts on-line; provision of entertainment, both interactive and non-interactive; production and distribution services in the field of recordings of sound, video, data, interactive software and multimedia, in electronic, magnetic, optical or other form; publishing services, including provision of on-line electronic publications; music publishing services; information provided on-line from a computer database or from the internet in relation to entertainment services; studio facilities, music publishing services, presentation of live musical performances; production of musicals, concerts and films; production of music; music composition services’.

4 The EU trade mark application was published in Community Trade Marks Bulletin No 108/2013 of 11 June 2013.

5 On 6 September 2013, the applicant filed a notice of opposition to registration of the mark applied for, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001), based on the earlier non-registered mark Deep Purple. That mark concerned the following goods and services:

– audio/visual recordings of musical performances, musical recordings, musical digital downloads, DVDs, CDs, cassette tapes, video tapes, programmes;

– entertainment services, musical performances by a musical group, entertainment by visual audio performances; live musical performances, entertainment transmitted by both analogue and digital formats;

– posters, ticket stubs, sales brochures, books, cards, photographs, stickers, books, fliers, car stickers, post cards, bumper stickers, books, cards, photographs, stickers, books, fliers, car stickers;

– buttons, t-shirts, cloth patches, badges, stick pins, caps, silk tapestries, cloth patches, badges, leather arm bands, head bandanas; and

6 The opposition was directed against all the goods and services covered by the mark applied for. The ground relied on in support of the opposition was that set out in Article 8(4) of Regulation No 207/2009 (now Article 8(4) of Regulation 2017/1001). The applicant claimed, in essence, that he was entitled under the applicable law in the United Kingdom to prevent use of the mark applied for by means of an action for passing-off.

7 On 17 February 2015, the Opposition Division upheld the opposition in part. It thus refused registration of the mark applied for in respect of some of the goods in Class 9 and all of the services in Class 41. On the other hand, it granted the application for registration of the mark for the goods in Class 25 as well as for some of the goods in Class 9, namely ‘mouse mats and mouse pads; mobile phone accessories; sunglasses; computer hardware; computer chips and discs, interactive software as well as computer firmware; computer games; software for interactive games for computer, mobile phones and handheld devices; digital games, mobile phone games; DVD games; computer software and computer programs’.

8 On 13 April 2015, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), in that it allowed the mark applied for to be registered for the goods in Class 9, as described in paragraph 7 above, and for the goods in Class 25.

9 By decision of 21 March 2016 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal in respect of the following goods in Class 9: ‘Computer hardware; computer chips and discs, interactive software as well as computer firmware; computer games; software for interactive games for computer, mobile phones and handheld devices; digital games, mobile phone games; DVD games; computer software and computer programs’ (‘the goods at issue’).

10 However, the Board of Appeal allowed the appeal in respect of the following goods:

– Class 9: ‘mouse mats and mouse pads; sunglasses; mobile phone accessories’;

– Class 25: ‘clothing, footwear, headgear; pique shirts; polo shirts; rugby shirts; shirts; sport shirts; sweat shirts; t-shirts; baseball caps; golf caps; knitted caps; shower caps; men’s and women’s jackets, coats, trousers; rain jackets; rainproof jackets; sweat jackets; track jackets; wind resistant jackets’.

11 In paragraph 25 of the contested decision, the Board of Appeal observed that the appeal in the present case was closely related to the appeal which had given rise to Decision R 880/2015-5 of the Fifth Board of Appeal, also dated 21 March 2016. In that decision, the Board of Appeal adjudicated in detail on the application of Article 8(4) of Regulation No 207/2009 and of the United Kingdom law relating to the tort of passing-off. The Board of Appeal found, therefore, that there was no need to revisit that issue in the context of the appeal in the present case, and it reproduced the findings set out in Decision R 880/2015-5, in particular the findings that, after the intervener’s resignation from the band in 1993, the applicant and the current and succeeding members of Deep Purple had accrued significant goodwill (the attractive force which brings in custom) under the name Deep Purple and that registration of the mark applied for would be preventable under the law of passing-off.

12 In paragraphs 29 to 40 of the contested decision, the Board of Appeal analysed whether the protection provided by the goodwill already established extended to the goods listed in paragraphs 9 and 10 above.

13 First, the Board of Appeal found that the evidence showed that clothing merchandise generated a significant revenue stream for the applicant over the relevant period and that merchandising was an essential part of the business of a rock band on tour. It added that it could reasonably be asserted that clothing merchandising belonged to the realms of common knowledge. It decided, therefore, that the sale of the goods in Class 25 under the name Deep Purple could be prevented by the law of passing-off and that damage to the goodwill of the applicant was plausibly foreseeable by virtue of diversion of trade. In addition, given that it was common knowledge that many of the items in Class 9 were commonly decorated with commercial or personal imagery, and given the goodwill attaching to the name Deep Purple and the role that merchandising items have in relation to performing the function of a badge of declaration of allegiance or as memento for fans, the Board of Appeal decided that there would be misrepresentation and damage to that goodwill if the intervener marketed ‘mouse mats and mouse pads; mobile phone accessories’ under the name Deep Purple. Lastly, as regards sunglasses, the Board of Appeal found that they were sufficiently accessorised with clothing so as also to be considered at risk of misrepresentation (paragraphs 34 to 37 of the contested decision).

14 Secondly, as regards ‘computer hardware [and] computer chips and discs, interactive software as well as computer firmware; computer games; software for interactive games for computer, mobile phones and handheld devices; digital games, mobile phone games; DVD games; computer software and computer programs’ in Class 9, the Board of Appeal found that no evidence had been submitted that the band had been involved in trading those items. It also stated that those items fell into a category of goods that were not clearly associated with music business merchandising in general and Deep Purple in particular. This did not, therefore, have the nature of ‘notorious fact’ evidence. In the light of those considerations, the Board of Appeal refused to extend its correction of the Opposition Division’s decision to the goods at issue (see paragraphs 37 to 40 of the contested decision).

– in consequence, refuse the application for registration of the trade mark applied for;

17 The applicant puts forward two pleas in law in support of his action. First, he submits that the Board of Appeal failed to have regard to the principle established in the judgment of the High Court of Justice (England & Wales), Chancery Division (United Kingdom), Lego System Aktieselskab v Lego M Lemelstrich Ltd [1983] FSR 155 (‘the Lego judgment’), according to which the existence or absence of a common field of activity is not the acid test for establishing the likelihood of misrepresentation. Secondly, he submits that the Board of Appeal failed to take account of the fact that the intervener intended to deceive the public.

18 Under Article 8(4) of Regulation No 207/2009, the proprietor of a non-registered trade mark may oppose the registration of an EU mark if that non-registered trade mark satisfies four conditions. The non-registered trade mark must be used in the course of trade; it must be of more than mere local significance; the right to that mark must have been acquired, pursuant to the law of the Member State in which the mark was used, prior to the date of application for registration of the EU trade mark; lastly, that mark must confer on its proprietor the right to prohibit the use of a subsequent trade mark.

19 Those conditions are cumulative, so that where a mark does not satisfy one of those conditions, the opposition based on the existence of a non-registered trade mark used in the course of trade within the meaning of Article 8(4) of Regulation No 207/2009 cannot succeed (judgment of 30 June 2009, Danjaq v OHIM Mission Productions (Dr. No), T‑435/05, EU:T:2009:226, paragraph 35).

20 Consequently, the opposing party must demonstrate that the sign in question falls within the scope of application of the law of the Member State relied on and that it confers the right to prohibit the use of a subsequent trade mark (see, to that effect, judgment of 12 June 2007, Budějovický Budvar v OHIM — Anheuser-Busch (BUDWEISER), T‑53/04 to T‑56/04, T‑58/04 and T‑59/04, not published, EU:T:2007:167, paragraph 74).

21 In the present case, the pleas in law relied on by the applicant concern the Member State’s law applicable to the earlier mark, namely the United Kingdom Trade Marks Act 1994, Section 5(4) of which provides:

‘A trade mark shall not be registered if, or to the extent that, its use in the United Kingdom is liable to be prevented: (a) by virtue of any rule of law (in particular, the law of passing-off) protecting an unregistered trade mark or other sign used in the course of trade …’

22 It is clear from Section 5(4) of the Trade Marks Act 1994, as interpreted by the national courts, that, in the present case, the applicant must establish, in accordance with the rules on passing-off under United Kingdom law, that the following three conditions are satisfied (see, to that effect, judgment of 11 June 2009, Last Minute Network v OHIM — Last Minute Tour (LAST MINUTE TOUR), T‑114/07 and T‑115/07, EU:T:2009:196, paragraph 49 and the case-law cited).

23 First, there was goodwill attached to the goods or services offered by the applicant, in the mind of the relevant public by association with their get-up. That goodwill is to be established at the date on which the defendant in the action for passing-off began to offer his goods or services. However, according to Article 8(4) of Regulation No 207/2009 the relevant date is not that date, but the date on which the application for an EU trade mark was filed, since Article 8(4) requires that an opposing party has acquired rights over its non-registered national mark before the date of filing, in this case 26 April 2013 (see, to that effect, judgment of 11 June 2009, LAST MINUTE TOUR, T‑114/07 and T‑115/07, EU:T:2009:196, paragraphs 50 and 51 and the case-law cited).

24 Secondly, the offering in the United Kingdom under the sign Deep Purple of goods and services identical to those of the applicant and of complementary goods and services would have constituted, on 26 April 2013, a misrepresentation, that is to say a representation likely to lead the relevant public to attribute the commercial origin of those goods and services to the applicant (see, to that effect, judgment of 11 June 2009, LAST MINUTE TOUR, T‑114/07 and T‑115/07, EU:T:2009:196, paragraph 52).

25 Thirdly, the applicant is likely to suffer commercial damage as a result (see, to that effect, judgment of 11 June 2009, LAST MINUTE TOUR, T‑114/07 and T‑115/07, EU:T:2009:196, paragraph 53).

26 In the present case, the two pleas in law relied on by the applicant concern the second of those conditions, namely that relating to misrepresentation.

27 The applicant submits that the Board of Appeal failed to have regard to the principle established in the Lego judgment, according to which the existence or absence of a common field of activity is not the acid test for establishing the likelihood of misrepresentation. The test is actually whether there exists a real risk that a substantial number of persons among the relevant section of the public will in fact believe that there is a business connection between the claimant and the defendant in an action for passing-off. The Board of Appeal did not, however, ask itself that question, but applied the ‘badge of allegiance’ test to distinguish, among the goods in Class 9, between those which if sold by the intervener under the mark applied for could give rise to misrepresentation and those which could not. According to the applicant, if the Board of Appeal had asked itself the right question, it would have answered in the affirmative as regards all Class 9 goods.

28 The applicant also submits that it is apparent from paragraph 37 of the contested decision that the Board of Appeal erred in finding that there was no evidence that he was involved in trading Class 9 goods. The applicant had indeed traded in Class 9 goods, in particular audio/visual recordings of musical performances, musical recordings, musical digital downloads, DVDs, CDs, cassette tapes, video tapes and programmes.

30 First of all, it is apparent from the parties’ pleadings and from paragraphs 30 and 31 of the contested decision — and it was confirmed by the parties at the hearing — that there is no difference of opinion between them concerning the test to be applied in order to establish that there is a likelihood of misrepresentation. According to the case-law on the tort of passing-off, it must be ascertained whether there is a genuine likelihood that the relevant public will be led to attribute the commercial origin of the goods and services in question to the opposing party. Where the goodwill in a name has been established for some goods and services and that name is then used for other goods or services, the existence of a likelihood of misrepresentation will be all the more difficult to prove where those goods and services are different. While a defendant in an action for passing-off need not be engaged in a common field of activity, the existence of a common field of activity is a relevant fact in the analysis of alleged misrepresentation (see Wadlow, C., The law of passing-off, Sweet & Maxwell, London, 2016, pp. 314 to 317).

31 Next, it must be pointed out that, in the Lego judgment, it was held that the claimant company, Lego, which produces children’s toys under that name, could prevent the defendant to the action for passing-off from marketing, under that same name, coloured plastic irrigation products such as garden sprinklers. That case confirms, therefore, that the existence of a common field of activity is not determinative, which does not, however, imply that such a circumstance is of no relevance. It follows that, in taking that circumstance into account in the present case, the Board of Appeal did not fail to have regard to the principle established in the Lego judgment.

32 Lastly, it must be found, as EUIPO notes, that there is no doubt that ‘computer hardware [and] computer chips and discs, interactive software as well as computer firmware; computer games; software for interactive games for computer, mobile phones and handheld devices; digital games, mobile phone games; DVD games; computer software and computer programs’ represent a remote field of activity as compared with that of a rock band. In addition, the Board of Appeal was fully entitled to dismiss the applicant’s appeal in respect of those goods on the ground that no reasonable extension of likely misrepresentation could be possible since, first, the applicant had submitted no evidence that those items had been traded by the band Deep Purple in particular or rock bands in general and, secondly, such goods could not function as merchandising items.

34 First of all, contrary to the applicant’s claims, there is no indication in the contested decision that the use of the expression ‘badge of allegiance’ gave rise to an incorrect conclusion. It is apparent from paragraph 37 of the contested decision that that expression was used by the Board of Appeal solely in order to explain the concept of merchandising in the music industry.

35 Next, it must be found, as EUIPO notes and the Board of Appeal stated in paragraph 37 of the contested decision, that the applicant has not adduced any evidence which shows that the band Deep Purple had been involved in trading any of the goods at issue or that music bands or other performers or celebrities commonly traded that type of goods.

36 Lastly, it must be found that the fact that the applicant was involved in trading some of the goods in Class 9 is irrelevant, since this does not imply that the likelihood of misrepresentation is established on the basis of the criteria set out in paragraphs 24 and 30 above for all of the goods in that class in general or the goods at issue in particular.

The second plea in law, alleging deceptive intent on the part of the intervener

38 The applicant submits that the Board of Appeal failed to rule on the ground of appeal he had raised before it concerning the intervener’s deceptive intent when filing the application for registration. Had the Board of Appeal taken account of the fact that the intervener had at the time accepted that he was associated, in the mind of the public, with the band Deep Purple, it would have had to conclude that all of the intervener’s goods would increase the likelihood of misrepresentation in the mind of the average consumer of those goods, given his previous relationship with the band and despite his departure from it in 1993.

39 Further, in the alternative, the applicant submits that even where a likelihood of deception is non-existent, the Court would not be astute to say that he cannot succeed in doing that which he is straining every nerve to do. In that regard, he relies on the judgment of the High Court of Justice (England & Wales), Chancery Division, in Slazenger & Sons v. Feltham & Co. (1889) 6 RPC 531 (‘the Slazenger judgment’).

40 In the further alternative, the applicant argues that the Board of Appeal failed to state the reasons for its decision to exclude the intervener’s deceptive intent from its examination and, that, in doing so, it infringed Article 75 of Regulation No 207/2009 (now Article 94 of Regulation 2017/1001), which provides that decisions of EUIPO are to state the reasons on which they are based.

41 EUIPO and the intervener dispute the applicant’s arguments. In addition, they contend that the argument based on the Slazenger judgment did not appear in the grounds of appeal which the applicant filed before the Board of Appeal and must, therefore, be declared inadmissible.

42 As EUIPO and the intervener correctly note, the argument relating to the Slazenger judgment was not raised before the Board of Appeal. The Court must, therefore, examine whether it is admissible.

43 In the present case, it is apparent from the application that the argument concerning the Slazenger judgment is not reliance upon a new fact, but a legal argument which is closely related to the plea in law alleging that the Board of Appeal failed to adopt a decision on the intervener’s intention to deceive. The argument is, therefore, admissible (see, to that effect, judgment of 28 June 2012, I Marchi Italiani and Basile v OHIM — Osra (B. Antonio Basile 1952), T‑133/09, EU:T:2012:327, paragraph 17 and the case-law cited).

44 It must be borne in mind that, according to the case-law, whether a statement of reasons satisfies the requirements of Article 75 of Regulation No 207/2009 is a question to be assessed by reference not only to its wording but also to its context and the whole body of legal rules governing the matter in question (see judgment of 9 July 2008, Reber v OHIM — Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 44 and the case-law cited).

45 According to the same case-law, the Boards of Appeal cannot be required to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (see judgment of 9 July 2008, Mozart, T‑304/06, EU:T:2008:268, paragraph 55 and the case-law cited).

46 In addition, it must be pointed out that, as is apparent in particular from the Slazenger judgment, an intention to deceive the public is strong evidence that deception will occur. However, this is not a rule of law, but a ‘rule of common sense’. In any event, every element of the tort of passing-off must be made out. In addition, in order to be relevant, the intention which must be pleaded and proven is one to deceive the public in a manner likely to damage the claimant in the action for passing-off. Any other form of deception will be relevant only to the credibility of the defendant’s evidence (see Wadlow, C., The law of passing off, Sweet & Maxwell, London, 2016, pp. 289 to 291).

47 The merits of the present plea in law must be examined in the light of those considerations.

48 First of all, it must be found that the claim that the intervener sought to deceive the public was set out only in a very summary manner before the Board of Appeal, in the context of the plea concerning the alleged misapplication of the Lego judgment, which does not raise the issue of intention to deceive. In addition, that claim was not substantiated by any evidence capable of showing that the intervener intended to deceive the public in a manner likely to damage the applicant, as required under the case-law. In that regard, it must be stated that it is common ground that the intervener is a former member of the band and, as such, is associated with the band in the mind of the public, which cannot in itself amount to proof of a deceptive intent on his part. Next, it must be pointed out that, in any event, every element of the tort of passing-off must be made out even if there is the intention to deceive the public (see paragraph 46 above). Lastly, the Board of Appeal dealt fully with the issue of the likelihood of misrepresentation, applying the relevant criteria summarised in paragraphs 24 and 30 above.

49 In the light of the foregoing, it cannot be successfully argued that the Board of Appeal failed to adjudicate on the applicant’s argument concerning ‘subjective deceptive intent’, nor that it failed to state the reasons for which it had not upheld that argument.

50 It follows that the present plea in law must be rejected as unfounded and, consequently, the action must be dismissed in its entirety, and there is no need to adjudicate on the admissibility of the second head of claim, which seeks refusal of the application for registration of the trade mark applied for.

51 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, he must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Paice v EUIPO - Blackmore (DEEP PURPLE) (EU trade mark - Judgment) [2018] EUECJ T-328/16 (04 October 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T32816.html Cite as: [2018] EUECJ T-328/16, EU:T:2018:649, ECLI:EU:T:2018:649

Court of Justice of the European Communities (including Court of First Instance Decisions)