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

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

14 December 2017 (*)

(EU trade mark — Opposition proceedings — Application for EU figurative mark RROFA — Earlier EU word mark ROFA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

In Case T‑912/16,

RRTec sp. z o.o., established in Gliwice (Poland), represented by T. Gawrylczyk, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and M.M. Baldares, acting as Agents,

defendant,

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

Mobotec AB, established in Gothenburg (Sweden), represented by N. Köster, lawyer,

ACTION brought against the decision of the First Board of Appeal of EUIPO of 5 October 2016 (Case R 2392/2015-1), relating to opposition proceedings between Mobotec and RRTec,

THE GENERAL COURT (Seventh Chamber),

composed of V. Tomljenović, President, E. Bieliūnas (Rapporteur) and A. Marcoulli, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 22 December 2016,

having regard to the response of EUIPO lodged at the Court Registry on 16 May 2017,

having regard to the response of the intervener lodged at the Court Registry on 4 May 2017,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

 Background to the dispute

1        On 6 May 2014, the applicant, RRTec sp. z o.o., 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 following figurative sign:

3        The goods and services for which registration was sought fall within Classes 4, 7, 9, 11, 37, 39, 40 and 42 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 4: ‘Fuels; liquid gases; petrol for engines; mazut; fuel oils; industrial grease; motor oil; paraffin; carburants for aviation; lubricants’;

–        Class 7: ‘Machines and apparatus, with spare parts, for the electromechanical, energy, heat engineering, combined heat and power plant, and incinerating industries’;

–        Class 9: ‘Measuring, checking, controlling, regulating and testing apparatus and instruments for use in the electromechanical, energy, heat engineering, combined heat and power plant, and incinerating industries; power electronics apparatus; ducts [electricity]’;

–        Class 11: ‘Recirculation, air-feed, ventilating and combustion apparatus and installations; heating, electricity production, steam generating, drying, water supply and gas apparatus and installations; parts for recirculation, air-feed, ventilating, combustion, heating, electricity production, steam generating, drying, water supply and gas apparatus and installations’;

–        Class 37: ‘Building construction, renovation and building construction, repair in the field of machines and apparatus for the electromechanical, energy, heat engineering, combined heat and power plant, and incinerating industries, measuring, checking, controlling, regulating and testing apparatus and instruments for use in the electromechanical, energy, heat engineering, combined heat and power plant, and incinerating industries, power electronics apparatus, recirculation, air-feed and combustion apparatus and installations, electricity production, steam generating, drying, water supply and gas apparatus and installations; installation services for the electromechanical, energy, heat engineering, combined heat and power plant, and incinerating industries, construction of electrical installations, construction of recirculation, air-feed, ventilating, combustion, heating, electricity production, steam generating, drying, water supply and gas installations; construction, assembly, modernisation, maintenance and repair of heating, boiler, ventilating, energy, electrical power engineering, heat engineering, waste incineration, exhaust gas reduction and environmental protection installations; building construction, renovation and building construction, repair of industrial facilities involved in thermal conversion of waste, power plants, combined heat and power plants, heat engineering plants and electromechanical facilities; construction, assembly, modernisation, maintenance and repair of installations for incinerating plants, power plants, combined heat and power plants and heat engineering plants; warranty and post-warranty servicing relating to the aforesaid fields; information relating to the aforesaid fields’;

–        Class 39: ‘Transmission and distribution of electrical and thermal energy, electrical and thermal power, compressed air, fuels, steam and hot water; storage of electrical and thermal energy; supply of electrical and thermal energy; water supply and distribution; information relating to the aforesaid fields’;

–        Class 40: ‘Production and processing of electrical and thermal energy; waste management; waste treatment [transformation]; recycling of waste and trash; incineration and destruction of waste materials; production of electrical energy and heat (steam and hot water); reduction of harmful gas emissions during energy production; reduction of harmful gas emissions during electrical and thermal energy production during incineration; information relating to the aforesaid fields’;

–        Class 42: ‘Scientific and technological research, measurement and analysis; engineering; research and development for the electromechanical, energy, heat engineering, combined heat and power industries and for waste treatment facilities; building construction, urbanisation and technological design; engineering appraisals, opinions and research in the field of heating, recirculation, air-feed, ventilating, combustion, environmental protection, energy, combined heat and power, and heat engineering systems, apparatus and facilities, and for the electromechanical industry; engineering appraisals, opinions and research in the field of harmful gas emission processes, design in the field of heating, recirculation, air-feed, ventilating, combustion and environmental protection systems, apparatus and installations; structural design of machines, apparatus and installations for the electromechanical, energy, heat engineering, combined heat and power industries, and for waste treatment facilities; technical and technical and organisation consultancy relating to the reduction of harmful gas emissions and services relating to heating, ventilating and environmental protection for the electromechanical, energy, heat engineering, combined heat and power, and waste treatment industries; measuring works in the field of energy and environmental protection; research and professional consultancy in the field of environmental engineering and techniques of incineration and emission of harmful gases; consultancy and information relating to the aforesaid fields’.

4        The EU trade mark application was published in Community Trade Marks Bulletin No 144/2014 of 5 August 2014.

5        On 4 November 2014, the intervener, Mobotec AB, filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001), to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

6        The opposition was based on, inter alia, the earlier EU word mark ROFA, registered on 15 August 2013 under No 11712304 for goods and services in Classes 11, 37 and 42 and corresponding, for each of those classes, to the following description:

–        Class 11: ‘Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilating, water supply and sanitary purposes specially air feed devices for incineration works’;

–        Class 37: ‘Building construction; repair; installation services specially construction, installation and maintenance concerning environmental engineering works and works for incineration’;

–        Class 42: ‘Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software specially engineering construction investigations and consultations concerning environmental engineering, incineration technique and emission technique’.

7        The grounds relied on in support of the opposition were those referred to in Article 8(1)(a) and (b) of Regulation No 207/2009 (now Article 8(1)(a) and (b) of Regulation 2017/1001).

8        On 28 September 2015, the Opposition Division partially upheld the opposition. It found that there was a likelihood of confusion between the signs at issue, within the meaning of Article 8(1)(b) of Regulation No 207/2009, in respect of all the goods and services in Classes 7, 11, 37 and 42 covered by the mark applied for and for the services of ‘transmission and distribution of steam and hot water; [of] water supply and distribution; [and of] information relating to the aforesaid fields’ included in Class 39 and the services of ‘production and processing of thermal energy; [of] production of heat (steam and hot water); [and of] information relating to the aforesaid fields’ included in Class 40 and covered by the mark applied for. Furthermore, the Opposition Division rejected the opposition in respect of all the goods in Classes 4 and 9 and in respect of the other services included in Classes 39 and 40 covered by the mark applied for.

9        On 30 November 2015, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Opposition Division.

10      By decision of 5 October 2016 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the appeal. In particular, it endorsed the Opposition Division’s assessment and held that, in view of, first, the high degree of visual similarity and the phonetic identity of the signs at issue and, secondly, the identity, similarity or weak similarity of the goods and services compared, there was indeed, on the part of the relevant public, which consists both of the general public and of professionals within the territory of the European Union, a likelihood of confusion between the marks at issue within the meaning of Article 8(1)(b) of Regulation No 207/2009.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

12      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      In support of the action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(a) and (b) of Regulation No 207/2009.

14      As a preliminary point, it should be noted that, as regards the plea alleging infringement of Article 8(1)(a) of Regulation No 207/2009, the applicant does not develop, in the application, any specific line of argument distinct from that put forward in support of the plea alleging infringement of Article 8(1)(b) of that regulation.

15      In any event, the Board of Appeal upheld the opposition only in so far as it was based on Article 8(1)(b) of Regulation No 207/2009 and did not examine the ground of opposition based on Article 8(1)(a) thereof. However, it is not for the Court to rule on an issue which was not examined by the Board of Appeal (see, to that effect, judgment of 29 March 2012, You-Q v OHIM — Apple Corps (BEATLE), T‑369/10, not published, EU:T:2012:177, paragraph 80 and the case‑law cited). Accordingly, the plea alleging infringement of Article 8(1)(a) must be rejected as inadmissible.

16      As regards the plea alleging infringement of Article 8(1)(b) of Regulation No 207/2009, the applicant claims, in essence, that there is no likelihood of confusion between the signs at issue, within the meaning of that provision, on the part of the relevant public since the differences between the signs at issue are easily identifiable by that public, which will, in the present case, exhibit a higher than average level of attention, even a very high level of attention.

17      EUIPO and the intervener dispute the applicant’s arguments.

18      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 it is identical or similar to the earlier trade mark and because the goods or services covered by the trade marks are identical or similar, 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 mark.

19      It is settled case-law that 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 case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question 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 covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

20      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

21      It should be noted that it is common ground between the parties that, first, the goods and services in Classes 7, 11, 37 and 42, which cover, respectively and in essence, machines, apparatus, services linked to the construction, installation and maintenance of buildings, machinery and apparatus and scientific and technological services, intended inter alia for the electromechanical, energy, heat engineering, combined heat and power industries and for incineration facilities, as well as the services of ‘transmission and distribution of steam and hot water; [of] water supply and distribution; [and of] information relating to the aforesaid fields’ included in Class 39 and the services of ‘production and processing of thermal energy; [of] production of heat (steam and hot water); [and of] information relating to the aforesaid fields’ included in Class 40 and covered by the mark applied for, and, secondly, the goods and services in Classes 11, 37 and 42, which include, respectively and in essence, apparatus, services linked to construction, installation and repair and scientific and technological services intended for the fields of environmental engineering and incineration, and are covered by the earlier mark, are identical, similar or weakly similar. Those findings of the Board of Appeal, in so far as they appear to be free of error, must be upheld.

 The relevant public

22      According to the case-law, 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 judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

23      Without expressly endorsing the definition of the relevant public and its level of attention given by the Opposition Division, the Board of Appeal held, in paragraphs 16 and 17 of the contested decision, in essence, that, as the earlier mark was protected within the European Union and covered goods and services included in Classes 11, 37 and 42, the relevant public consisted both of the general public and of professionals within the territory of the European Union. It added that, although the applicant claimed the contrary, there was nothing to support the conclusion that the level of attention of the public thus defined would be higher than average for those goods and services.

24      The applicant maintains that, as the services are directed at professionals, the level of attention of the public concerned is significantly higher than average. Moreover, in its view, the goods and services at issue in the present case are not directed at the everyday and average consumer, but at a consumer with extensive knowledge, who will select the goods or services not on the basis of the trade mark attached to them but bearing in mind the supplier itself. The goods or services in question, the applicant argues, are not purchased without reflection or on a daily basis, with the result that consumers will exhibit a higher than average level of attention, or even a very high level of attention.

25      EUIPO and the intervener dispute the applicant’s arguments.

26      First, it should be noted that the applicant’s claim that the relevant public will choose the goods or services not on the basis of the trade mark attached to them but bearing in mind the supplier itself is not pertinent for the purposes of defining the relevant public and its level of attention, but may come within the assessment of the likelihood of confusion. It should therefore be examined subsequently, in the course of that assessment.

27      Secondly, it should be noted that, as regards the goods in Class 11 and the services in Classes 37 and 42 covered by the earlier mark, the Board of Appeal was fully entitled to find that the relevant public consisted both of the general public and of professionals.

28      In that regard, the argument put forward by the applicant that the goods and services covered could not be aimed at the general public inasmuch as it lacks sufficient knowledge to acquire them cannot be accepted.

29      The goods in Class 11, with the exception of ‘air feed devices for incineration works’, are everyday goods that can be purchased for a modest price at DIY shops (see, to that effect, judgment of 26 March 2015, Radecki v OHIM — Vamed (AKTIVAMED), T‑551/13, not published, EU:T:2015:191, paragraph 28) and may therefore be aimed at the general public.

30      Likewise, consumers who are members of the general public are likely to use the services of ‘building construction; [of] repair’ or the ‘installation services’ included in Class 37, something which has not been validly challenged by the applicant.

31      Finally, as regards the services in Class 42, it must be noted that, at least for the services of ‘design and development of computer hardware and software’, although they require some technical expertise in the IT field, they are services which are, as a group, so broad that they may be aimed both at the specialist or professional public and also at the general public (see, to that effect, judgment of 27 September 2016, Satkirit Holdings v EUIPO — Advanced Mailing Solutions (luvoworld), T‑450/15, not published, EU:T:2016:543, paragraph 25 and the case‑law cited).

32      Thirdly, as regards the relevant public’s level of attention, it must be noted that, taking account of the nature and technicality of some of the goods included in Class 11, such as the ‘apparatus for ventilating’ or the ‘apparatus for sanitary purposes’, the relevant public will demonstrate an at least average level of attention, if not slightly higher than average.

33      In respect of the services in Class 37, the use of such services does not occur on a daily basis, may involve significant investments and may also require some technical knowledge, in particular as regards the services linked to environmental engineering works and works for incineration. This therefore suggests an at least average level of attention, if not higher than average, on the part of the relevant public.

34      Likewise, the services in Class 42 may, as emphasised in paragraph 31 above, require some expertise on the part of the consumer. Thus, it must be held that the consumer’s level of attention will be at least average, if not higher than average. Moreover, the ‘scientific and technological services and [the] research and design relating thereto; [the] industrial analysis and research services’ and the services of ‘design and [of] development of computer hardware and software’ in particular relating to ‘engineering construction investigations and [to] consultations concerning environmental engineering, incineration technique and emission technique’ are aimed at a public consisting of professionals who will thus demonstrate a high level of attention.

35      In the light of the foregoing, it must be held that the relevant public consists of consumers who are members of the general public and of professionals within the European Union and that that relevant public has an at least average level of attention, or even higher than average.

 The comparison of the signs at issue

36      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by those signs, account being taken, in particular, of their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

37      The Board of Appeal held, first, that the signs at issue were visually highly similar (paragraph 20 of the contested decision), secondly, that they were phonetically identical (paragraph 21 of the contested decision) and, thirdly, that, as the terms ‘rofa’ and ‘rrofa’ have no meaning, the signs at issue were not conceptually similar (paragraph 22 of the contested decision).

38      The applicant submits, in essence, that the overall impressions produced by the signs at issue are totally different. In that regard, according to the applicant, the Board of Appeal did not place sufficient importance on the fact that the mark applied for begins with the string of two letters ‘rr’, appearing, moreover, in bold type, in contrast to the earlier mark. First, it claims that, visually, the Board of Appeal failed adequately to address the distinctive and characteristic graphics and colour scheme of the mark applied for. Secondly, it maintains that the pronunciation of the signs at issue is fundamentally different since the mark applied for is pronounced differently to the earlier mark, the latter being pronounced just as it is written. Finally, the applicant states, in essence, that the fanciful nature of the graphic design of the string of two letters ‘rr’ in the mark applied for attracts the attention of the relevant public, arouses interest and, as a consequence, readily directs that public’s attention to the qualities of the whole inscription, of which that element constitutes an integral part. Thus, the mark applied for is, it submits, sufficiently distinct from the earlier mark.

39      EUIPO and the intervener take issue with the applicant’s arguments.

40      As regards the visual comparison, it must be pointed out, first, that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM — Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).

41      It must be noted that the earlier mark, ROFA, is reproduced in its entirety in the mark applied for, RROFA. The differences that exist between the signs, namely, the presence of an additional letter ‘r’ at the beginning of the mark applied for, the blue colour and the fact that the string of letters ‘rr’ is represented in bold characters in the mark applied for are insufficient to eliminate the strong similarity existing between the signs as a result of the presence in common of the combination of letters ‘rofa’.

42      In that respect, the applicant’s argument that the graphic design of the string of two letters ‘rr’ placed at the beginning of the mark applied for was not taken into account by the Board of Appeal and that it confers a fanciful character on the mark applied for cannot succeed. First, the Board of Appeal did indeed note the presence of those two letters but, in essence, correctly held that that presence was unable to offset the similarities between the signs at issue. Furthermore, contrary to the applicant’s claims, the letters are not written in such graphics as to confer on the mark applied for a fanciful character which is, by itself, likely to attract the attention of the relevant public.

43      Secondly, it should be recalled that, while it is true that the first part of a mark’s word elements may be more likely to catch the consumer’s attention than the other parts that follow, this assumption does not, however, apply in all cases. The assertion that the beginning of the mark applied for is the part that particularly attracts the consumer’s attention cannot be assessed independently of the facts of the present case, and in particular the specific characteristics of the signs at issue (see judgment of 18 July 2017, Freddo v EUIPO — Freddo Freddo (freggo), T‑243/16, not published, EU:T:2017:522, paragraph 65 and the case‑law cited). In the present case, the typeface of the characters used and the colour and size of the string of letters ‘rr’ do not differ from those used for the string of letters ‘ofa’, the only difference being that the string of letters ‘rr’ is in bold type. Furthermore, as EUIPO and the intervener have noted, there is no space between the strings of letters ‘rr’ and ‘ofa’. Therefore, it must be held that, at least for part of the relevant public, the mark applied for will be perceived as a whole and the string of letters ‘rr’ will not attract the attention of the public any more than does the string of letters ‘ofa’.

44      Consequently, the Board of Appeal was fully entitled to find that there was a high degree of visual similarity between the signs at issue.

45      As regards the phonetic comparison, the Board of Appeal was fully entitled to hold, in essence, in paragraph 21 of the contested decision, that it was unlikely that any significant part of the relevant public would pronounce the signs differently due to the presence of the additional ‘r’ in the contested sign. The Board of Appeal was therefore right to conclude that the signs were phonetically identical for at least a significant part of the relevant public.

46      Moreover, it must be noted that, since neither the letters ‘r’ and ‘r’ nor the strings of letters ‘rr’ and ‘ofa’ of the mark applied for are separated by spaces, the relevant public, at least the vast majority of that public, is unlikely to pronounce the mark applied for by distinguishing the letters ‘r’ from the rest of the other letters. In any event, even supposing that part of the relevant public would pronounce the mark applied for in the manner contended by the applicant, that is not capable of calling into question the fact that, for the vast majority of the relevant public, the mark applied for will be pronounced identically to the earlier mark, in other words in two syllables, namely, ‘ro’ and ‘fa’.

47      As regards the conceptual comparison, since the terms ‘rofa’ and ‘rrofa’ are devoid of any meaning, any such comparison is entirely irrelevant to the assessment of the similarity of the signs at issue.

48      It must be concluded from all of the foregoing that the Board of Appeal was fully entitled to hold that the signs at issue were visually highly similar and phonetically identical.

 The likelihood of confusion

49      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

50      The Board of Appeal found, in paragraph 28 of the contested decision, that the earlier mark had average distinctive character in respect of the goods and services covered, given that it was devoid of any meaning in their regard. Thus, in paragraph 29 of the contested decision, the Board of Appeal found that, taking account of the high degree of visual similarity and the phonetic identity of the signs at issue and the identity, similarity or weak similarity of the goods and services compared, there was a likelihood of confusion between the marks at issue on the part of the relevant public within the European Union.

51      The applicant claims, in essence, that the signs at issue present such differences that there cannot be a likelihood of confusion between them. In particular, it submits, the presence of the string of letters ‘rr’ at the beginning of the mark applied for allows it to be distinguished from the earlier mark. Furthermore, the applicant criticises the Board of Appeal for making gross simplifications which do not take into account the way in which the mark applied for is perceived by the relevant public.

52      EUIPO and the intervener dispute the applicant’s arguments.

53      It should be noted that the arguments put forward by the applicant seek, in essence, to challenge the Board of Appeal’s findings relating to the similarity of the signs at issue. According to the applicant, the presence of the string of letters ‘rr’ in the mark applied for and its graphics are sufficient to distinguish the signs at issue and to eliminate any likelihood of confusion. However, as stated in paragraphs 43 and 46 above, that element is not capable of calling into question the strong visual similarity and the phonetic identity of the marks RROFA and ROFA.

54      The applicant’s claim that the relevant public will select the goods or services not on the basis of the trade mark attached to them but on the basis of the supplier itself cannot be accepted. Acceptance of the argument that the relevant public takes its decision to purchase solely in the light of the goods and services and their supplier, and not in the light of their trade mark, would amount to stating that, in the area of the goods and services at issue, trade marks are of no use whatsoever (see, to that effect, judgment of 17 April 2008, Dainichiseika Colour & Chemicals Mfg. v OHIM — Pelikan (Representation of a pelican), T‑389/03, not published, EU:T:2008:114, paragraph 100).

55      Consequently, it must be held that the Board of Appeal was fully entitled, taking account of the strong similarity of the marks at issue, of the identity or more or less high similarity of the goods and services concerned, and of the average distinctive character of the earlier mark, to find that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 on the part of the relevant public showing an average level of attention.

56      In that regard, it must be borne in mind that, as regards the assessment of the likelihood of confusion, the section of the public which has the lowest level of attention must be taken into consideration (see judgment of 6 April 2017, Policolor v EUIPO — CWS-Lackfabrik Conrad W. Schmidt (Policolor), T‑178/16, not published, EU:T:2017:264, paragraph 64 and the case-law cited). Therefore, it is not necessary to examine the likelihood of confusion on the part of the relevant public which shows a higher than average level of attention.

57      In the light of all of the foregoing, the applicant’s single plea in law must be rejected and, consequently, the action must be dismissed in its entirety.

 Costs

58      Under Article 134(1) of the Rules of Procedure of the General Court, 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, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders RRTec sp. z o.o. to pay the costs.

Delivered in open court in Luxembourg on 14 December 2017.

*      Language of the case: English.

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