In Case T‑512/15, the General Court upheld the decision of the Board  of Appeal regarding the invalidity action below brought on relative grounds:

The Cancellation Division partly granted the application for a declaration of invalidity declared the contested mark invalid in respect of the goods in Classes 18 and 25, holding that, in view of the coincidence in the element ‘cali’, the dominant element in the earlier mark, there was a likelihood of confusion between the marks.

The Fifth Board of Appeal of EUIPO (i) dismissed the appeal brought by the applicant as inadmissible, holding that the applicant was not duly represented in accordance with Article 92(2) of Regulation No 207/2009, and (ii) partly allowed the appeal brought by Abercrombie & Fitch Europe in respect of the services in Class 35 as being similar with the goods in Class 25.

The GC upheld that the BOA's finding that the evidence produced by the applicant, namely (a) extracts from a website, (b) photographs supposedly showing the front of a commercial establishment in Munich, and (c) an authorisation form authorising an employee to represent the applicant, are clearly not relevant information and explanations capable of proving, the existence of a real and effective commercial establishment in the EU within the meaning of Article 92(3) of Regulation No 207/2009. Nevertheless, the applicant was a party to those appeal proceedings as of right and under Article 65(4) of EUTMR, the applicant was thus entitled to seek annulment of the contested decision.

Regarding the comparison of goods and services, the Court confirmed that 'retail store services featuring clothing, shoes and handbags’ in Class 35, are similar to ‘clothing’ and ‘shoes’ in Class 25. Regarding the marks, given the presence of the common word element ‘cali’, there is a certain degree of visual and phonetic similarity. The dissimilarities, consisting in particular of their figurative elements and the word elements ‘co’ and ‘sun’, are incapable of dispelling the similarity impression on the part of the relevant public. The Court upheld the finding of confusion and BOA's decision.