C-223/15: no EU-wide confusion, no EU-wide injunction

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Article CJEU trade mark jurisprudence, Article EU trade mark law, Article likelihood of confusion,

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C-223/15: no EU-wide confusion, no EU-wide injunction

While the IPKat has noticed the referral in the Combit/Commit case (IPKat post here) and IPKat's own Eleonora Rosati has called it an important case, it seems we have not yet reported on the CJEU's judgment in the case, handed down on 22 September 2016.
Combit Software GmbH owns both a German and EU trade mark for the sign COMBIT for software, and uses the mark in connection with customer relationship management (CRM) Software. The Israeli company Commit Business Solutions Ltd uses the sign COMMIT for CRM software on its website, which is also accessible in Germany and other European countries (there was a German language version of Commit's Website at the time Combit sued).

Combit sought an injunction against Commit's use of COMMIT in the European Union, alternatively in Germany. The Landgericht Düsseldorf dismissed the principal claim, but upheld the alternative claim based on the German trade mark. The lower court reasoned that for German speakers, COMBIT and COMMIT were confusingly similar, but for English speakers, that was not the case as they would readily understand the conceptual difference between, on the one hand, the English verb ‘to commit’ and, on the other, the word ‘combit’, as ‘combit’ is made up of the letters ‘com’ for computer and ‘bit’ for ‘binary digit’. The Landgericht considered that the phonetic similarity between ‘Commit’ and ‘combit’ is, from the perspective of the aforementioned English-speaking consumer, cancelled out by that conceptual difference.

On appeal, the Oberlandgesgericht Düsseldorf agreed with this assessment of the likelihood of confusion. But Combit raised an interesting legal point: it argued that the unitary effect of the EU trade mark required that an injunction be granted for the entire territory of the EU if a likelihood of confusion existed in at least part of the territory. The Oberlandesgericht asked the CJEU whether, if there was a likelihood of confusion only in some Member States, had the EU trade mark been infringed across the European Union, or must the Member States be differentiated individually?

The CJEU held, in essence, that the EU trade mark has been infringed if likelihood of confusion exists in any part of the EU, but if it can be excluded that likelihood of confusion existed in certain parts of the EU, these parts had to be exempted from the injunction. The relevant sections 31 and 32 of the judgment read:
31 However, as follows from paragraph 48 of the judgment of 12 April 2011, DHL Express France (C‑235/09, EU:C:2011:238), in a situation in which — as in the case in the main proceedings — an EU trade mark court finds that the use of the similar sign in question for goods that are identical to those for which the EU trade mark at issue is registered does not, in a given part of the European Union, create any likelihood of confusion, in particular for linguistic reasons, and therefore cannot, in that part of the Union, adversely affect the trade mark’s function of indicating origin, that court must limit the territorial scope of the aforementioned prohibition.
32 Indeed, where an EU trade mark court concludes, on the basis of information which must, as a rule, be submitted to it by the defendant, that there is no likelihood of confusion in a part of the European Union, legitimate trade arising from the use of the sign in question in that part of the European Union cannot be prohibited. As the Advocate General has observed in points 25 to 27 of his Opinion, such a prohibition would go beyond the exclusive right conferred by the EU trade mark, as that right merely permits the proprietor of that mark to protect his specific interests as such, that is to say, to ensure that the mark is able to fulfil its functions (see, to that effect, judgment of 12 April 2011, DHL Express France, C‑235/09, EU:C:2011:238, paragraphs 46 and 47).

The Court further clarified that a national court issuing a "partial" injunction must very precisely define the territory to which the injunction applied. An exclusion of "English speaking areas" was unclear (as an aside, after Brexit, the only English speaking Member States will be Ireland and Malta - but English may be understood very well in other parts of the EU, e.g. Scandinavian countries. Do these have to be exempted from the injunction? Good luck to the national courts assessing the knowledge of English in all the different Member States. The burden of supplying the relevant Facts lies with the alleged infringer [see para. 32 cited above]).
On another side note, Commit's website currently contains the following disclaimer, hidden in the general terms and conditions (with a link in the footer of the landing page):
Notice to German Visitors
CommitCRM does not provide its services and/or does not deliver products under the brand “COMMIT” to customers located in Germany. All offers and/or options available on the Web page referreing to this page are not directed to customers from Germany.

This won't do after the Oberlandesgericht renders its decision taking into account the CJEU's reasoning.

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