JUDGMENT OF THE GENERAL COURT (Third Chamber)

23 January 2014 (*)

(Community trade mark – Opposition proceedings – Application for the Community word mark SUN FRESH – Earlier Community, Benelux and national word and figurative marks SUNNY FRESH, SUNRIDER SUNNY FRESH and SUNNYFRESH – Relative ground for refusal – Proof of the genuine use of earlier marks – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009)

In Case T‑221/12,

The Sunrider Corporation, established in Torrance, California (United States), represented by N. Dontas and E. Markakis, lawyers,

applicant,

v

Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by P. Bullock, acting as Agent,

defendant,

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

Nannerl GmbH & Co. KG, established in Anthering bei Salzburg (Austria), represented by A. Thünken, lawyer,

ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 26 March 2012 (Case R 2401/2010‑4), relating to opposition proceedings between The Sunrider Corporation and Nannerl GmbH & Co. KG,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,

Registrar: T. Weiler, Administrator,

having regard to the application lodged at the Court Registry on 25 May 2012,

having regard to the response of OHIM lodged at the Court Registry on 26 July 2012,

having regard to the response of the intervener lodged at the Court Registry on 21 August 2012,

further to the hearing on 11 June 2013,

gives the following

Judgment

 Background to the dispute

1        On 6 August 2007, the intervener, Nannerl GmbH & Co. KG, filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).

2        The trade mark for which registration was sought is the word sign SUN FRESH.

3        The goods in respect of which registration was sought fall within Class 32 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 to the following description: ‘Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’.

4        The Community trade mark application was published in Community Trade Marks Bulletin No 1/2008 of 7 January 2008.

5        On 6 March 2008, the applicant, The Sunrider Corporation, also operating under the name of Sunrider International, filed a notice of opposition pursuant to Article 42 of Regulation No 40/94 (now Article 41 of Regulation No 207/2009) against the registration of the mark applied for in respect of the goods listed in paragraph 3 above.

6        The opposition was based, first, on Community word mark SUNNY FRESH registered on 20 December 1999 under number 605014 and renewed until 21 August 2017, for goods in Class 5 and corresponding to the following description: ‘Herbal nutritional supplements’.

7        The opposition was based, secondly, on the United Kingdom figurative mark in black and white, registered on 8 December 1995 under number 2016689 and renewed until 5 April 2015, for goods in Class 32 and corresponding to the following description: ‘Herbal beverages; herbal teas; preparations, powders and essences for making beverages; non-alcoholic beverages; syrups for beverages’, corresponding to the following figurative sign:

8        The opposition was based, thirdly, on the Irish figurative mark in black and white, registered on 6 April 1995 under number 169766 and renewed on 28 March 2002, for goods in Class 32 and corresponding to the following description: ‘Non-alcoholic beverages and preparations for making such beverages; herbal beverages and preparations for making herbal beverages; all being included in Class 32’, corresponding to the following figurative sign:

9        The opposition was based, fourthly, on the Hungarian word mark SUNNYFRESH, registered on 13 May 1997 under number 144500 and renewed on 16 August 2004, for goods in Class 5 and corresponding to the following description: ‘Medical herb origin liquid foods’.

10      The opposition was based, fifthly, on the Benelux figurative mark in black and white, registered on 2 June 1995 under number 574389 and renewed until 2 June 2015, for goods in Classes 5, 29 and 32 and corresponding, for each of those classes, to the following description:

–        Class 5: ‘Foodstuffs and beverages, for dietary and health purposes, including food bottles and food powders, all for medical use’;

–        Class 29: ‘Foodstuffs with added herbs, inasmuch as not included in other classes, dried and otherwise processed fruits’;

–        Class 32: ‘Herbal beverages and preparations for making herbal beverages, other than for medical use’,

corresponding to the following figurative sign:

11      The grounds raised in support of the opposition were those set out in Article 8(1)(b) of Regulation No 40/94 (now Article 8(1)(b) of Regulation No 207/2009).

12      On 17 July 2009, the intervener submitted a request for proof of use of all the earlier marks on which the opposition was based.

13      On 26 August 2009, OHIM requested the applicant to submit proof of use of the earlier marks. On 23 October 2009 the applicant submitted the following evidence:

–        copies of 167 invoices issued between 2003 and 2008 regarding sales of 498 Sunny Fresh mini packs each containing 10 bottles of 15 ml of dietary supplement ‘Sunny Fresh’ (product code 200005) to customers in Ireland, the Netherlands, the United Kingdom, Austria, Sweden, Belgium, France and Germany;

–        two samples of packaging items, labelled ‘SUNRIDER® MINI PACK’, ‘SUNNY FRESH® DIETARY SUPPLEMENT • HERBAL CONCENTRATE’ (10 bottles / 15 ml each) in English/Dutch and French/German, each bottle labelled with the indication ‘DIETARY SUPPLEMENT – HERB CONCENTRATE’, and a reproduction of the following figurative mark:

–        product catalogues from October 2003 in German, French and English advertising ‘Sunny Fresh® Mini Packs (10/15 ml bottles, code no 200005)’ in the category ‘SUNRIDER® HERBAL CONCENTRATES’;

–        copies of the Sunspot newsletter from October 2005 in English, French, German and Dutch promoting the ‘Sunny Fresh Mini Pack (10 x 15 ml/Code: 200005)’;

–        copies of invoices issued by an advertising company to the applicant regarding advertising costs for the publication of the Sunspot newsletter in English, German, French and Dutch from 2000 to 2007;

–        copies of price lists from 2003 to 2008 for Ireland, the Netherlands, the United Kingdom, Austria, Sweden, Belgium, France and Germany, listing the ‘Sunny Fresh® Mini Pack (10 x 15 ml)’ as ‘Herbal Formula Concentrates’.

14      By decision of 6 October 2010, the Opposition Division upheld the opposition for all the contested goods, rejected the application for registration in its entirety and ordered the intervener to bear the costs.

15      On 3 December 2010, the intervener filed a notice of appeal with OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.

16      By decision of 26 March 2012 (‘the contested decision’), the Fourth Board of Appeal of OHIM annulled the decision of the Opposition Division and rejected the opposition. In particular, it found that the intervener had requested that the applicant prove genuine use of the earlier marks on which the opposition was based pursuant to Article 42(2) and (3) of Regulation No 207/2009. As the earlier marks had all been registered for more than five years on the date of publication of the contested application, which is 7 January 2008, it was for the applicant to prove the use of those marks during the five year period between 7 January 2003 and 6 January 2008. According to the Board of Appeal, the evidence provided by the applicant proved that the word and figurative marks SUNNY FRESH had been used in Austria, Belgium, France, Germany, Ireland, the Netherlands, Sweden and the United Kingdom, but only for a dietary supplement based on a herbal concentrate falling within Class 5. It concluded that proof of genuine use had only been provided in relation to earlier Community mark number 605014. It then annulled the decision of the Opposition Division and dismissed the opposition because, in its view, the goods for which the Community word mark SUNNY FRESH had been used and the goods for which the intervener had requested registration of the mark SUN FRESH were different, and that, accordingly, there was no likelihood of confusion.

 Forms of order sought

17      The applicant claims that the Court should:

–        annul the contested decision in its entirety, except in so far as it concerns ‘beers’ covered by the disputed Community trade mark in Class 32;

–        order OHIM to pay the costs incurred by the applicant in the course of the present proceedings before the Court;

–        order OHIM to pay the costs necessarily incurred by the applicant in the course of the proceedings before the Fourth Board of Appeal in Case R 2401/2010‑4.

18      OHIM and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

19      In support of its appeal the applicant relies on three pleas in law based, first, on breach of Article 42(2) and (3) of Regulation No 207/2009, secondly, on breach of the second sentence of Article 75 and of the second part of Article 76(1) of Regulation No 207/2009 and, thirdly, on breach of Article 8(1)(b) of the same regulation.

20      As is apparent from the first head of claim, the applicant is not requesting the cancellation of the contested decision in relation to the rejection of the opposition concerning the goods ‘beers’ in Class 32. In the application, the applicant also stated that it was no longer relying on Hungarian registration No 144500 of the mark SUNNYFRESH as an earlier mark within the meaning of Article 41(1)(a) of Regulation No 207/2009.

21      The Court considers that it is appropriate first to examine the first plea, before examining the second and third pleas together.

 The first plea, alleging infringement of Article 42(2) and (3) of Regulation No 207/2009, resulting from errors concerning the interpretation and application of the Nice classification

22      The first plea concerns the Board of Appeal’s reasoning, set out in paragraphs 13 to 22 of the contested decision, that the applicant had not provided proof of genuine use of the United Kingdom, Irish and Benelux figurative marks referred to in paragraph 6 above for the goods falling within Class 32. In paragraphs 13 to 15 of the contested decision, the Board of Appeal noted that, under Article 42(2) and (3) of Regulation No 207/2009, the applicant for a Community trade mark could require proof that the earlier mark on which the opposition was based had been put to genuine use in the European Union or in the relevant Member State during the five years preceding the date of publication of the application for a Community trade mark by OHIM, provided that, on that date, the earlier mark had been registered for not less than five years and that, accordingly, the opponent had to prove use of its earlier marks. In paragraph 16 of the contested decision, the Board of Appeal noted that, under Rule 22, paragraph 3, of Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Regulation No 40/94 (OJ 1995 L 303, p. 1), as amended, the opponent was required to prove inter alia the nature of the use made of the earlier marks. Thereafter, in paragraphs 18 to 22 of the contested decision, the Board of Appeal found that the applicant had only shown use of the marks on which the opposition was based for the category of goods ‘herbal nutritional supplements’ in Class 5.

23      The applicant submits that the Board of Appeal’s conclusion is incorrect. Contrary to the Board of Appeal’s findings, it adduced evidence of genuine use of the earlier United Kingdom mark in relation to the categories of goods ‘herbal beverages; herbal teas; preparations and essences for making beverages; syrups for beverages’ falling within Class 32, of the earlier Irish mark in relation to the categories of goods ‘herbal beverages and preparations for making herbal beverages’ also falling within that class, and the earlier Benelux mark for the categories of goods ‘herbal beverages and preparations for making herbal beverages, other than for medical use’ falling within the same class.

24      In the context of the first plea, the applicant submits, on the one hand, complaints relating to the interpretation by the Board of Appeal of the category of goods ‘herbal nutritional supplements’ in Class 5, and of the categories of goods ‘herbal beverages; herbal teas; preparations and essences for making beverages; syrups for beverages’ in Class 32. On the other hand, it submits complaints relating to the assessment and the legal characterisation of the facts by the Board of Appeal on the basis of those categories.

 The interpretation of the categories of goods at issue

25      First, the applicant calls into question the Board of Appeal’s interpretation and definition of the categories of the Nice Classification, in particular at paragraphs 20, 21 and 28 of the contested decision.

26      According to the Board of Appeal, a liquid whose main purpose is not to quench thirst or to be used as standard human nutrition, but which is used primarily for medical purposes or to balance nutritional deficiencies, constitutes a ‘nutritional supplement’ in Class 5 rather than a ‘beverage’ in Class 32.

27      The applicant submits that the definition of ‘beverage’ in Class 32, is excessively narrow.

28      In that context, it submits, first, that the category of goods in Class 32 must be defined by taking into account the nature of the goods at issue. Therefore, any goods intended for human consumption which are liquid and which, besides their nutritional purposes, also have a thirst-quenching or refreshing function, at least in the short term, fall within that category.

29      That complaint must be rejected.

30      Contrary to what the applicant submits, the Board of Appeal correctly found that the category of goods ‘herbal nutritional supplements’ in Class 5 had to be distinguished from the categories of goods ‘herbal beverages; herbal teas; preparations and essences for making beverages; syrups for beverages’ in Class 32, taking into account the main purpose of the goods in question.

31      If the content of Classes 5 and 32, their relevant categories, and the explanatory notes relating thereto are read in conjunction with each other, it is apparent that the relevant distinguishing criterion is not the liquid and edible nature of the goods, but their main purpose.

32      In that context, it should be noted, first, that Class 5 of the edition of the Nice classification which is applicable in the present case, namely the ninth edition, is entitled ‘Pharmaceutical and veterinary preparations; sanitary preparations for medical purposes; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; material for stopping teeth, dental wax; disinfectants; preparations for destroying vermin; fungicides, herbicides’. According to the first sentence of the explanatory note for that class, the latter includes ‘mainly pharmaceuticals and other preparations for medical purposes’. During the revision of the ninth edition of the Nice Classification, that first sentence was slightly amended and the reference to ‘preparations for medical purposes’ replaced by a reference to ‘preparations for medical or veterinary purposes’. Secondly, it should be noted that Class 32 of the edition of the Nice Classification applicable in the present case is entitled ‘Beers; mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’. The explanatory note for that class states that it includes ‘mainly non-alcoholic beverages, as well as beer’ and expressly excludes ‘beverages for medical purposes’ from its scope. It follows that the criterion for distinguishing the goods in Class 5 from those in Class 32 is the use of the goods in question, that is to say their main purpose.

33      Secondly, the applicant argues that only goods which have medical functions, properties or a medical purpose in the strict sense of the term may fall within Class 5.

34      That complaint must also be rejected.

35      In that regard, it should be noted that it is apparent from the title of Class 5 and the list of goods which it includes that the medical or veterinary use which it refers to must be understood broadly. Thus, the title of that class refers, for example, to ‘food for babies’, that is to say food, which, from a medical point of view, is suitable for consumption by babies who, because of their physiognomy or for other medical reasons, are not yet able to consume all types of normal food. Moreover, the list of goods in Class 5 contains, inter alia, ‘teas’ which corresponds to ‘herbal teas for medicinal purposes’ in the English version of that list. At issue therefore are herbal teas which are consumed primarily to prevent or remedy certain health concerns which do not, however, need to be considered as a drug in the strict sense of the term.

36      Thirdly, the applicant submits that the Board of Appeal wrongly held that the concept of beverages in Class 32 included only goods whose sole purpose was to quench thirst. The Board of Appeal disregarded the fact that beverages could also be consumed as nourishment, as recognised by case-law. It is consistent with usual marketing practices to present several purposes for beverages, which may be different or additional to the simple function of quenching thirst.

37      With respect to these claims, it should be noted, first, that, contrary to what the applicant submits, the Board of Appeal did not rule out that one of the purposes of the ‘beverages’ in Class 32 could be their nutritional function. Admittedly, in certain passages from the grounds of the contested decision, the Board of Appeal merely mentioned that beverages were used to quench thirst. However, it cannot be inferred that it considered that beverages of that class could not have a nutritional purpose. Indeed, it is apparent from paragraphs 21 and 28 of the contested decision in particular that the Board of Appeal considered that a beverage in Class 32 could have not only the function of quenching thirst, but also a nutritional function.

38      Furthermore, it is appropriate to confirm the Board of Appeal’s view, that liquid goods whose main purpose is to quench thirst and which are part of standard human nutrition fall within Class 32, while liquids which are consumed mainly for the purpose of balancing nutritional deficiencies or used for medical purposes in the broad sense fall within Class 5. Such a definition of the classes of the goods at issue is consistent with the considerations set out in paragraphs 28 to 35 above.

39      In that context, it should also be noted that such an approach is consistent with the clarification made by the tenth edition of the Nice Classification, which entered into force on 1 January 2012. During the revision of the ninth edition of the Nice Classification, the title of Class 5 was slightly amended and ‘dietary supplements for humans and animals’ were added thereto. The explanatory note was updated in that regard and it was stated that the class included ‘dietary supplements, intended to supplement a normal diet or to have health benefits’ and ‘meal replacements, dietetic food and beverages, adapted for medical or veterinary use’. It was also specified that the class did not include ‘meal replacements, dietetic food and beverages not for medical or veterinary purposes’.

40      Therefore, contrary to what the applicant submits, the Board of Appeal did not consider that drinks in Class 32 could not have nutritional functions. It merely excluded from that class liquids which are not part of standard human nutrition, but which are used principally to balance nutritional deficiencies or for medical purposes in the broad sense.

41      As all the complaints concerning the interpretation of the relevant categories of goods under Classes 5 and 32 must be rejected, it is necessary to reject the first limb of the first plea in its entirety.

 The assessment of the facts and their legal classification

42      Secondly, the applicant submits that the Board of Appeal should not have classified the SUNNY FRESH herbal concentrate only as a ‘herbal nutritional supplement’ in Class 5 but also as a ‘beverage’ or a ‘preparation for making a beverage’ or, at the very least, as a ‘preparation and/or essence for making beverages or syrups for beverages’ in Class 32.

43      In that context, the applicant submits, first, that the Board of Appeal incorrectly concluded that the SUNNY FRESH product at issue had no thirst-quenching function, and that, given the thirst-quenching or refreshing function of the product, the Board of Appeal should have concluded that it was a ‘beverage’ in Class 32. According to the applicant, the Board of Appeal should also have examined in more detail whether the goods did or did not have a nutritional purpose.

44      Those arguments must be dismissed.

45      As set out above, the classification of a liquid as a ‘beverage’ in Class 32 depends on its main purpose.

46      It is undisputed that the SUNNY FRESH herbal concentrate was sold in batches of 10 bottles of 15 ml capacity each, that the product packaging indicated that the consumption of a bottle of 15 ml per meal was recommended and that the packaging also contained the warning: ‘Do not exceed the stated recommended daily dose. Food supplements should not be used as a substitute for a varied diet. Keep stored out of the reach of young children.’ It is also undisputed that the applicant itself mentioned the goods in the price lists not as a beverage, but as a herbal formula concentrate which it marketed under the following description:

‘Sunny Fresh is a unique natural supplement that soothes and revives a dry scratchy throat. It contains an extraordinary blend of concentrated herbs including liquorice, peppermint and cloves, all traditionally used to aid digestion, soothe the stomach and freshen the breath.’

47      In view of that presentation and marketing of the SUNNY FRESH herbal concentrate, in particular the warnings about the recommended dosage and potential hazards of the product for young children, it is appropriate to confirm the Board of Appeal’s finding that the main purpose of the goods was not to quench thirst or to ensure standard human nutrition, but to address certain medical problems in the broad sense of the term. The Board of Appeal therefore did not err in classifying the SUNNY FRESH product as a ‘herbal nutritional supplement’ in Class 5, and not as a ‘beverage’ in Class 32.

48      Secondly, the applicant submits that the Board of Appeal should have examined in detail whether the SUNNY FRESH product could be classified as another form of goods falling within Class 32, such as ‘herbal teas; preparations and essences for making beverages; syrups for making beverages’, ‘preparations for making herbal beverages’ or ‘preparations for making herbal beverages, other than for medical purposes’. In that context, the applicant relies in particular on the fact that the SUNNY FRESH product can be mixed with water.

49      That complaint must also be rejected.

50      In that context, it should be noted, first, that OHIM correctly submits that it was stated neither on the SUNNY FRESH product nor on its packaging that it should or could be mixed with water and then consumed as a beverage. As the Board of Appeal held in paragraph 28 of the contested decision, goods should be classified by taking into account their usual use rather than their accidental use. Therefore, the mere possibility of mixing the SUNNY FRESH herbal concentrate with water does not call into question the fact that its main purpose is to address certain medical problems in the broad sense of the term. Accordingly the Board of Appeal correctly decided not to classify the goods as ‘herbal teas; preparations and essences for making beverages; syrups for making beverages’, ‘preparations for making herbal beverages’ or ‘preparations for making herbal beverages, other than for medical purposes’ within Class 32.

51      Thirdly, the applicant argues that, in paragraph 20 of the contested decision, the Board of Appeal erred in concluding that the SUNNY FRESH herbal concentrate had medical purposes. In that context, the applicant argues, inter alia, that it is not a pharmaceutical company and that the SUNNY FRESH herbal concentrate is not authorised as a medicinal product in any Member State of the European Union under Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67). The SUNNY FRESH herbal concentrate does not have, nor does it claim, any medical use, function or property corresponding to the definition of ‘medical’ as set out in Directive 2001/83, is not sold in pharmacies, is directed at everyone, can be consumed freely without medical prescription and contains only natural ingredients.

52      That complaint must also be rejected.

53      Indeed, as is clear from paragraphs 33 to 35 above, the classification as a herbal nutritional supplement does not require that the product at issue be a medicinal product for human use in the strict sense of the term; it is sufficient that it has a medical purpose in the broad sense of the term. Therefore, contrary to what the applicant submits, it cannot be inferred from the fact that the Board of Appeal described the SUNNY FRESH product as a ‘herbal nutritional supplement’ falling within Class 5 that the Board also found that it was a medicinal product for human use in the strict sense of the term.

54      As all the complaints raised under the second limb of the first plea are unfounded, it is appropriate to dismiss that limb, and accordingly, the first plea in its entirety.

 The third plea, alleging a breach of Article 8(1)(b) of Regulation No 207/2009, and the second plea, alleging a breach of the second sentence of Article 75 and of the second part of Article 76(1) of Regulation No 207/2009

55      The second and third pleas refer to the Board of Appeal’s reasoning, set out in paragraphs 23 to 37 of the contested decision, that there was no likelihood of confusion between the contested Community trade mark and the marks relied on in opposition. In that context, the Board of Appeal held, in essence, that the goods designated by the disputed mark and those for which the applicant had adduced evidence of use were different.

56      By the third plea, the applicant submits that the Board of Appeal infringed Article 8(1)(b) of Regulation No 207/2009. Contrary to the Board of Appeal’s findings, there is a likelihood of confusion between the disputed mark and the marks relied on in support of the opposition. In the context of the second plea, the applicant submits that the Board of Appeal infringed the second sentence of Article 75 of Regulation No 207/2009, according to which decisions can be based only on reasons on which the parties had on opportunity to present their comments, and the second part of Article 76(1) of the regulation, according to which, in proceedings relating to relative grounds for refusal of registration, OHIM shall be restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought.

57      In that respect, it should be noted that Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered 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 two 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.

58      According to settled case-law, the risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to that same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services concerned and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services designated (see Case T‑162/01 Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II‑2821, paragraphs 30 to 33 and the case-law cited).

59      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see Case T‑316/07 Commercy v OHIM – easyGroup IP Licensing (easyHotel) [2009] ECR II‑43, paragraph 42 and the case-law cited). Accordingly, the opposition is rejected regardless of the degree of similarity, or even the identity of the disputed signs, if the goods at issue are different (see, to that effect, order of 9 March 2007 in Case C‑196/06 P Alecansan v OHIM, not published in the ECR, paragraph 26).

60      As regards the applicant’s complaint that the Board of Appeal erred in its assessment of the similarity between the goods at issue, it is appropriate to state, first, that the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 between two marks should not be assessed on the basis of a comparison of the signs in the abstract and the goods or services which they cover. The assessment of that risk must, instead, be based on the perception that the relevant public will have of those signs, goods and services (judgment of 24 May 2011 in Case T‑408/09 ancotel v OHIM – Acotel (ancotel.), not published in the ECR, paragraph 29).

61      The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for (judgment of 1 July 2008 in Case T‑328/05 Apple Computer v OHIM – TKS-Teknosoft (QUARTZ), not published in the ECR, paragraph 23).

62      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see Case T‑256/04 Mundipharma v OHIM – Altana Pharma (RESPICUR) [2007] ECR II‑449, paragraph 42 and the case-law cited).

63      In the present case, having regard to the type of goods in question and to the fact that the earlier mark for which genuine use was proven is a Community trade mark, the Board of Appeal held that the goods in question are aimed at the general public and that the relevant public, in respect of which the likelihood of confusion must be assessed, consisted of average consumers in all EU Member States. Nothing in the file calls into question that assessment and it must therefore be confirmed.

64      Furthermore, given the nature of the goods at issue, it is appropriate to consider that the relevant public is reasonably well informed and reasonably observant and circumspect as regards the goods in Class 32. Regarding nutritional supplements for medical use in the broad sense of the term included in Class 5, it must be held that the relevant public displays a relatively high level of attention, insofar as those goods affect their health.

65      As regards the comparison of the goods, it should be noted that, in paragraph 25 of the contested decision, the Board of Appeal held that the goods to be compared were, on the one hand, ‘beers, mineral and aerated waters and other non-alcoholic drinks; fruit drinks and fruit juices; syrups and other preparations for making beverages’ in Class 32 and, on the other, ‘herbal nutritional supplements’ in Class 5.

66      In paragraph 26 of the contested decision, the Board of Appeal noted that, in order to assess the similarity of the goods at issue, it was necessary to take into account all relevant factors characterising the relationship between them. As is clear from the case-law, those factors include, inter alia, their nature, their purpose and method of use and whether they are in competition with each other or complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see Case T‑443/05 El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) [2007] ECR II‑2579, paragraph 37 and the case-law cited).

67      In paragraphs 27 to 36 of the contested decision, the Board of Appeal found that the goods at issue were different in their purpose, their usual producers, their outlets and their end-users, and as a result of the fact that they were neither complementary nor in competition with each other.

68      The applicant submits that that finding is flawed.

69      In this regard, the applicant submits, first, that the goods at issue should be viewed as similar because of their nature, purpose and function. Nutritional supplements in the form of various liquids that have no medical purpose do exist, such as liquid concentrates made of fruits or herbs which are consumed directly as a beverage or following mixing with water. Those goods have a thirst-quenching purpose and a nutritional function like the goods in Class 32 and are therefore similar thereto.

70      With regard to those arguments, it should be noted, first, that the main purpose of consuming ‘herbal nutritional supplements’ in Class 5 is not to quench thirst or to form part of standard human nutrition, but rather in order to prevent or remedy medical problems in the broad sense of the term or to balance nutritional deficiencies.

71      Having regard to that main purpose, ‘herbal nutritional supplements’ in Class 5, such as the SUNNY FRESH herbal concentrate, cannot be regarded as similar to ‘beverages’ or to ‘preparations for making beverages’ in Class 32, even though some of them are sold as liquids or liquid concentrates that can be mixed with water.

72      The mere fact that such supplements may have, in addition to their main function, which is a medical function in the broad sense of the term or one compensating for nutritional deficiencies, ordinary nutritional functions does not warrant such supplements being considered as ‘beverages’ in Class 32. Those secondary aspects do not alter the fact that the average consumer does not consume nutritional supplements as ordinary food or to quench his thirst.

73      The complaint must therefore be rejected.

74      Secondly, the applicant calls into question the Board of Appeal’s finding in paragraph 30 of the contested decision that the goods at issue are generally not offered for sale in the same outlets. In that regard, the applicant argues in the context of the second plea that the Board of Appeal did not specify the facts on which it relied in reaching this conclusion and that it should have stated whether it was relying on evidence presented by the parties or on well-known facts. The applicant also submits that a review of the relevant well-known facts revealed that the goods at issue were usually sold through the same outlets.

75      Those arguments must also be rejected.

76      As regards, first, the validity of the Board of Appeal’s finding in paragraph 30 of the contested decision, it should be noted that, even if under Article 76(1) of Regulation No 207/2009, ‘in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought’, that restriction of the factual basis of the examination by the Board of Appeal does not preclude it from taking into consideration, in addition to the facts expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, which are likely to be known by anyone or which may be learnt from generally accessible sources (see, by analogy, Case T‑185/02 Ruiz-Picasso and Others v OHIM – DaimlerChrysler (PICARO) [2004] ECR II‑1739, paragraphs 27 to 32).

77      In the present case, the Court considers that the fact that nutritional supplements are generally offered for sale in pharmacies, drugstores or specialised departments is a well-known fact. In that context, it is appropriate to take into account that although the applicant attempts to challenge that fact by arguing that herbal nutritional supplements in liquid form falling within Class 5 are sold in the same aisle as beverages, syrups and other preparations for beverages falling within Class 32, the applicant adduces no evidence in support of its claim.

78      Next, if, by arguing that the Board of Appeal did not specify the facts on which it relied in reaching this conclusion and that it should have clarified whether it was relying on evidence presented by the parties or well-known facts, the applicant is complaining that the Board of Appeal breached the obligation to state reasons laid down in Article 75 of Regulation No 207/2009, that complaint must be rejected. It emerges sufficiently clearly from paragraph 30 of the contested decision and its context that the Board of Appeal relied on well-known facts.

79      Finally, as regards the applicant’s argument that some outlets, such as large supermarkets, sell as many Class 5 nutritional supplements as they do beverages, syrups and other preparations for beverages falling within Class 32 – which is not disputed by OHIM – it should be remembered that, in itself, that fact is not likely to make such products similar in the eyes of the average consumer, insofar as they are sold in different aisles.

80      Thirdly, the applicant submits that the Board of Appeal’s finding in paragraph 30 of the contested decision that the end consumers of the goods are different is incorrect and has not been adequately substantiated.

81      In that regard, it should be remembered that although, in paragraph 30 of the contested decision, the Board of Appeal found that the final consumers of the goods were different, its finding should be read in the light of paragraph 25 of the contested decision, where the Board of Appeal held that, with regard to products in Class 5 and Class 32, the relevant public was the general public. It follows that, in paragraph 30 of the contested decision, the Board of Appeal only wanted to express that, as the main purpose of the goods in question was different, the level of attention of consumers was higher with regard to goods in Class 5 than with regard to goods in Class 32. Having regard to the considerations put forward by the Board of Appeal with regard to the respective main purposes of the various goods at issue, the finding in question must be regarded as sufficiently substantiated.

82      Fourthly, the applicant submits that the goods in question are in competition. It is possible to consume ‘herbal dietary supplements’ falling within Class 5 rather than ‘mineral and aerated waters and other non-alcoholic beverages; fruit drinks and fruit juices; syrups and other preparations for making beverages’ in Class 32.

83      That complaint must also be rejected. Insofar as the applicant invokes the existence of a competitive relationship between the goods at issue, it is relying on arguments that have already been considered and rejected in paragraphs 70 to 72 above.

84      Fifthly, the applicant submits that the goods at issue are complementary. In that regard, it should be borne in mind that, according to settled case-law, goods or services are complementary where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (see easyHotel, paragraphs 57 and 58 and the case‑law cited). However, such a complementary relationship has not been established in the present case. ‘Herbal nutritional supplements’ in Class 5 are not indispensable or important for the use of ‘beverages’ or ‘preparations for making beverages’ in Class 32. Accordingly, as the Board of Appeal correctly pointed out in paragraph 31 of the contested decision, any combined consumption of those products is merely ancillary.

85      Sixthly, the applicant alleges that the Court has already confirmed in several cases that nutritional supplements in Class 5 are similar to goods falling within the categories of ‘non-alcoholic beverages; syrups and other preparations for making beverages’ in Class 32.

86      That complaint must also be rejected.

87      In its judgment in Case T‑33/03 Osotspa v OHIM – Distribution & Marketing (Hai) [2005] ECR II‑763, which is the only case cited by the applicant in support of its argument, the Court ruled only on the similarity between ‘strengthening and refreshing health care products, namely vitamin preparations, mineral preparations, tonics’ in Class 5, and ‘beverages’ and ‘preparations for making beverages’ in Class 32. In any event, that judgment can be relied on only in so far as it illustrates a similarity between those categories of goods in Class 32 and ‘strengthening and refreshing health care products, namely vitamin preparations, mineral preparations, tonics’ in Class 5. However, it is not relevant to the assessment of the similarity between ‘herbal nutritional supplements’ in Class 5 and the categories of goods in Class 32.

88      Seventhly, the applicant submits that the Board of Appeal’s finding that the contested goods in Class 32 and its Class 5 goods required entirely different skills for their manufacture and sale was incorrect. Certain manufacturers, including itself, produce both the goods at issue in Class 5 and in Class 32. In that context, it is appropriate also to take into account the arguments that the applicant submits in its second plea. According to the applicant, the Board of Appeal breached the second sentence of Article 75 of Regulation No 207/2009, pursuant to which decisions can be based only on reasons or evidence on which the parties concerned have had on opportunity to present their comments, and the second part of Article 76(1) of the regulation, according to which, in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought. In that regard, the applicant alleges that, according to case-law, with the exception of well-known facts, OHIM can base its decisions only on facts and evidence presented by the parties. The assessment by the Board of Appeal at issue was supported neither by specific facts presented by the defendant nor by well-known facts. However, the applicant provided specific evidence showing that it was a manufacturer of both products.

89      Those arguments must be dismissed. Even supposing they were well founded, they are not capable of calling into question the finding of the Board of Appeal that the goods at issue were not similar.

90      In that context, it should be noted that a likelihood of confusion can exist only if a large part of the producers or distributors of the products in question are the same. It is only in such a case that the relevant public will perceive the goods or services as having a common commercial source (see, to that effect, Case T‑150/04 Mülhens v OHIM – Minoronzoni (TOSCA BLU) [2007] ECR II‑2353, paragraph 37).

91      In the present case, the applicant merely mentions that some manufacturers produce both categories of products, without however putting forward the evidence which is capable of showing that a large part of the manufacturers or distributors of the two categories of contested goods are the same. However, the mere fact that some manufacturers, including the applicant, produce both categories of goods is not sufficient to demonstrate that a large part of the manufacturers or distributors of the goods at issue are the same, which should be taken into account when assessing the likelihood of confusion.

92      In any event, having regard to the above considerations in relation to the different purposes of the goods at issue, the differences in their marketing and lack of substitutability or complementarity, the Court considers that a partial identity of the manufacturers of the contested goods is not sufficient to create a likelihood of confusion between those goods.

93      Thus, even supposing that the Board of Appeal erred in finding that the goods in question in Class 32 and the opponent’s goods in Class 5 required entirely different skills for their manufacture and sale, that circumstance is not sufficient to call into question its assessment as to the lack of similarity between the goods at issue and therefore to justify, of itself, annulling the contested decision (see, to that effect, Case T‑222/09 Ineos Healthcare v OHIM – Teva Pharmaceutical Industries (ALPHAREN) [2011] ECR II‑183, paragraph 33 and 35 and the case-law cited). Accordingly, the complaints alleging an erroneous finding as to the skills required for the manufacture of the goods at issue falling within Classes 5 and 32, a breach of the second sentence of Article 75 of Regulation No 207/2009 or a breach of the second part of Article 76(1) of the regulation must, in any event, be rejected as ineffective.

94      The second and third pleas in law must therefore be rejected in their entirety.

95      Since none of the pleas in law relied upon by the applicant is well founded, the action must be dismissed in its entirety.

 Costs

96      Under Article 87(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

97      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by OHIM and the intervener.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders The Sunrider Corporation to pay the costs.

Czúcz

Labucka

Gratsias

Delivered in open court in Luxembourg on 23 January 2014.

[Signatures]