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

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

20 April 2018 (*)

(EU trade mark — Opposition proceedings — Application for the EU figurative mark YAMAS — Earlier EU word mark LLAMA — 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‑15/17,

Dimitrios Mitrakos, residing in Palaio Faliro (Greece), represented by D. Bakopanou, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Kusturovic and J. Crespo Carrillo, acting as Agents,

defendant,

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

Juan Ignacio Belasco Baquedano, residing in Viana (Spain), represented by P. Merino Baylos, lawyer,

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 11 October 2016 (Case R 532/2016-2), relating to opposition proceedings between Mr Belasco Baquedano and Mr Mitrakos,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, L. Calvo-Sotelo Ibáñez-Martín (Rapporteur) and I. Reine, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 6 January 2017,

having regard to the response of EUIPO lodged at the Court Registry on 22 March 2017,

having regard to the response of the intervener lodged at the Court Registry on 27 March 2017,

having regard to the fact that no application for a hearing was submitted by the parties within the period of three weeks from notification of closure 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

1        On 15 January 2015, the applicant, Mr Dimitrios Mitrakos, 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) (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 mark:

3        The goods in respect of which registration was sought are in Classes 32 and 33 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 32: ‘Non-alcoholic beverages; Beer and brewery products; Preparations for making beverages’;

–        Class 33: ‘Alcoholic beverages (except beer); Preparations for making alcoholic beverages’.

4        The trade mark application was published in Community Trade Marks Bulletin No 15/2015 of 23 January 2015.

5        On 1 April 2015, the intervener, Mr Juan Ignacio Belasco Baquedano, filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation No 2017/1001), to registration of the mark applied for in respect of part of the goods, namely those in Class 33.

6        The opposition was based on the earlier EU word mark LLAMA, which was filed on 14 April 2004 and registered on 11 July 2005 under number 3765625, covering goods in Class 33 corresponding to the following description: ‘alcoholic beverages (excluding beer)’.

7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

8        On 26 January 2016, the Opposition Division upheld the opposition for all the goods in question in Class 33 and ordered the applicant to bear the costs.

9        On 18 March 2016, 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 11 October 2016 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal.

11      In its decision, the Board of Appeal found that the relevant public was composed of the general public and of professionals in the territory of the European Union. With regard to levels of attention, it found that, in the present case, as the goods were aimed at both the general public and at professionals, the level of attention to be taken into account was the average level of attention of a consumer who is a member of the general public. In addition, the Board of Appeal focused its comparison on the Spanish-speaking part of the public in the European Union.

12      With regard to the comparison of the goods, the Board of Appeal found that the goods in question were identical.

13      As regards the comparison of the signs, the Board of Appeal found that the signs in question had only a low degree of visual similarity, were extremely similar phonetically for the Spanish-speaking public in the European Union, and were conceptually different.

14      With regard to the likelihood of confusion, the Board of Appeal attached particular weight to the phonetic similarities between the marks at issue on account of the fact that the goods in question were, as a general rule, purchased orally. It therefore took the view that there was an overall impression of similarity on account of the low degree of visual similarity and the very high degree of phonetic similarity, in particular, when attention was paid to the fact that the goods covered by the mark in question were identical and that the level of attention of the relevant public was no higher than average. Accordingly, the Board of Appeal concluded that the Opposition Division did not err in refusing to register the applicant’s trade mark in respect of the contested goods on the ground that there was a likelihood of confusion between the mark applied for and the earlier mark for the Spanish-speaking public in the European Union.

 Forms of order sought

15      The applicant claims that the Court should:

–        annul the contested decision and the decision of the Opposition Division;

–        reject the opposition and allow registration of the trade mark applied for;

–        order EUIPO and the intervener to pay the costs.

16      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

17      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. The applicant claims, in essence, that the Board of Appeal erred in its assessment of the comparison of the marks and of all the other relevant factors, in particular, the very weak or non-existent distinctive character of the earlier mark, the level of attention of the relevant public, and the specific conditions under which the goods covered by the contested mark are marketed, which, in the applicant’s view, led to the incorrect conclusion that there was a likelihood of confusion between the marks within the meaning of Article 8(1)(b) of Regulation No 207/2009.

18      EUIPO and the intervener dispute those arguments.

19      It must be borne in mind 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 cannot be registered if, because of its identity with, or similarity to, an earlier trade mark and because of the identity or similarity of the goods or services covered by the 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.

20      According to settled case-law, the risk that the public may 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 the 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 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).

21      For the purpose 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).

22      Where the protection of the earlier trade mark extends to the whole of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 207/2009 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited).

23      The applicant’s arguments must be assessed in the light of those considerations in particular.

 The relevant public

24      It must be noted that the Board of Appeal’s assessment that the relevant public is composed of the general public and of professionals in the territory of the European Union is not disputed by the applicant. The fact that the Board of Appeal focused its comparison on the Spanish-speaking part of the public in the European Union is not disputed by the applicant either. It is therefore appropriate to endorse those assessments made by the Board of Appeal.

25      With regard to the level of attention of the relevant public, it must be noted that the Board of Appeal’s finding that, in the present case, with regard to the goods aimed at both the general public and professionals, the level of attention to be taken into account is the average level of attention of a consumer who is a member of the general public is not disputed by the applicant either.

26      However, the applicant claims that the Board of Appeal’s reasoning in that regard is contradictory. According to the applicant, whereas paragraph 18 of the contested decision states that consumers of alcoholic beverages are deemed to be reasonably well informed and reasonably observant and circumspect and that they will have a reasonable level of attention in respect of alcoholic beverages, the Board of Appeal states in paragraph 34 of its decision that the level of attention of the relevant public is no higher than average.

27      In that regard, contrary to the applicant’s claims, it must be noted that defining the level of attention of the relevant consumer as ‘reasonable’ or as ‘no higher than average’ can, in essence, be equated with stating that the level of attention of the relevant public is average. Accordingly, the Court upholds the Board of Appeal’s finding that the level of attention of the relevant public must be considered to be average.

 The comparison of the goods

28      As regards the comparison of the goods, the applicant does not expressly dispute the Board of Appeal’s conclusion that the goods in question are identical. However, the applicant describes the specific features of the goods in question and emphasises the conditions under which the goods are marketed in order to show, in essence, that those goods are different.

29      In that regard, it suffices to note, as observed by the intervener, that, in order to assess the similarity of the goods at issue, within the meaning of Article 8(1)(b) of Regulation No 207/2009, the group of goods protected by the marks at issue must be taken into account, not the goods actually marketed under those marks (judgments of 16 June 2010, Kureha v OHIM — Sanofi-Aventis (KREMEZIN), T‑487/08, not published, EU:T:2010:237, paragraph 71, and of 17 January 2012, Kitzinger v OHIM — Mitteldeutscher Rundfunk and Zweites Deutsches Fernsehen (KICO), T‑249/10, not published, EU:T:2012:7, paragraph 23).

30      In addition, in opposition proceedings, EUIPO may only take into account the list of goods as it stands in the application for the mark concerned, subject only to any amendments to that list, in accordance with Article 43 of Regulation No 207/2009. Accordingly, the applicant’s statements relating to the specific goods for which he intends to use the mark applied for are irrelevant in the present case (see, to that effect, judgments of 24 January 2013, Yordanov v OHIM — Distribuidora comercial del frio (DISCO DESIGNER), T‑189/11, not published, EU:T:2013:34, paragraph 43 and the case-law cited, and of 15 March 2016, Nezi v OHIM — Etam (E), T‑645/13, not published, EU:T:2016:145, paragraph 77).

31      Accordingly, it must be held that the Board of Appeal was correct to find that, in the light of the wording of the list of goods, the goods in question were identical.

 The comparison of the signs

32      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. 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).

33      It should also be borne in mind that, according to case-law, the first component of word marks may be more likely to catch the consumer’s attention than the components which follow. However, that consideration cannot prevail in all cases and cannot, in any event, undermine the principle that the examination of the similarity of the signs must take account of the overall impression given by them (see judgment of 10 March 2016, credentis v OHIM — Aldi Karlslunde (Curodont), T‑53/15, not published, EU:T:2016:136, paragraph 35 and the case-law cited).

34      Lastly, it must be borne in mind that, when assessing identity or similarity, the signs must be compared in the form in which they are protected, that is, as they were registered or as they appear in the application for registration. The actual or potential use of registered marks in another form is irrelevant when comparing the signs (judgment of 9 April 2014, Pico Food v OHIM — Sobieraj (MILANÓWEK CREAM FUDGE), T‑623/11, EU:T:2014:199, paragraph 38).

35      In the present case, with regard to the comparison of the marks at issue, the Board of Appeal found that the signs in question had only a low degree of visual similarity, were extremely similar phonetically for the Spanish-speaking public in the European Union, and were conceptually different.

 Visual comparison

36      The applicant argues that the Board of Appeal erred in finding that the signs in question had a low degree of visual similarity. According to the applicant, the first component of the signs at issue, which is their most important component, is completely different, as is their ending, their font and their colour.

37      In that regard, the Board of Appeal observed, in paragraph 25 of the contested decision, that the signs in question are of the same length, as they are both made up of five letters. They both contain the sequence of letters ‘ama’. They differ visually in their first letters, namely, ‘ll’ in the earlier sign and ‘y’ in the contested sign. The contested sign also contains an additional final ‘s’ and is depicted in blue. In the light of those considerations, the Board of Appeal concluded that the signs have only a low degree of visual similarity.

38      In the present case, it must be noted that although it is true, as asserted by the applicant, that the first component of word marks may be more likely to catch the consumer’s attention than the components which follow, the fact nevertheless remains that that consideration cannot prevail in all cases (see judgment of 4 July 2014, Advance Magazine Publishers v OHIM — Montres Tudor (GLAMOUR), T‑1/13, not published, EU:T:2014:615, paragraph 31 and the case-law cited).

39      In addition, the fact that the signs in question are of the same length (five letters) and both contain the sequence of letters, ‘ama’, is sufficient to establish that they have at least a low degree of visual similarity.

40      The Board of Appeal’s finding that the signs have a low degree of visual similarity must therefore be confirmed.

 Phonetic comparison

41      The applicant acknowledges that the signs in question are similar to a certain degree for part of the Spanish-speaking public in the European Union, as the earlier mark LLAMA will be pronounced in a similar way to the first four letters, ‘yama’, of the contested mark. However, he claims that particular attention must be paid to the additional letter ‘s’ at the end of the contested mark and to the fact that, in Spain, the earlier mark may be pronounced ‘sama’, whereas, in the rest of the European Union, it is pronounced in a totally different manner.

42      The Board of Appeal found, in paragraph 26 of the contested decision, that the degree of similarity was very high. In its view, the first components of the signs, ‘lla’ and ‘ya’, are pronounced in a very similar manner in Spanish, or even identically by a significant part of the Spanish-speaking public. The final components of the signs, ‘ma’ and ‘mas’, are also highly similar, as the sole difference is the final ‘s’ in YAMAS. The rhythm of the signs is identical, as they are both disyllabic. The signs are therefore highly phonetically similar for the Spanish-speaking public in the European Union. In addition, according to the Board of Appeal, it is irrelevant that the signs are not phonetically similar in other languages spoken in the European Union, given that the Opposition Division was entitled to take into account a part of the European Union only.

43      The Court upholds those findings.

44      In that regard, it must be noted, as observed by EUIPO, that the phonetic similarity of the signs in question is primarily a result of the fact that the sound of their first syllable will be very similar for the Spanish-speaking public, to the extent that the greater part of that public will pronounce the sequence of letters ‘ll’ of the sign LLAMA in the same way as the sound ‘y’ of the sign YAMAS and by the fact that those signs will be pronounced ‘ya-ma’ and ‘ya-mas’, respectively, in most regions of Spain. Furthermore, the signs in question are made up of two syllables and have three out of five letters in common and in the same order. In those circumstances, it must be observed that the additional letter ‘s’ at the end of the second syllable of the contested mark will not have a significant impact on the overall phonetic impression conveyed by that sign.

45      As regards the applicant’s argument that the earlier mark may also be pronounced ‘sama’ in Spain, it must be noted that the applicant did not produce any evidence to show that the relevant Spanish-speaking public in the European Union will pronounce that mark in that way. It is possible, as observed by EUIPO, that, in Latin American countries, the pronunciation of the sequence of letters ‘ll’ will indeed be similar to that of the letter ‘s’ or the sequence of letters ‘sh’. However, the pronunciation of that sequence of letters in countries outside the European Union is irrelevant in the present case.

46      It is also appropriate to add in that regard that, according to case-law, a finding that there is a likelihood of confusion for a non-negligible part of the relevant public is sufficient to uphold an opposition to an application for registration of a mark (judgment of 10 November 2011, Esprit International v OHIM — Marc O’Polo International (Representation of a letter on a pocket), T‑22/10, not published, EU:T:2011:651, paragraph 119; see also judgment of 24 June 2014, Hut.com v OHIM — Intersport France (THE HUT), T‑330/12, not published, EU:T:2014:569, paragraph 58 and the case-law cited). The Board of Appeal was therefore entitled to refer to the Spanish-speaking public who will pronounce the first part of the two signs in the same way.

47      Consequently, it must be held that the Board of Appeal was correct to find that the signs have a very high degree of phonetic similarity for the Spanish-speaking public of the European Union.

 Conceptual comparison

48      The applicant agrees with the Board of Appeal’s finding that the signs in question are conceptually different as far as the Spanish-speaking public is concerned. However, although, on the one hand, the applicant is of the opinion, as is the Board of Appeal, that the earlier mark will be perceived as referring to a ‘flame’ or a ‘domesticated animal typical of the Andes’, he argues, on the other hand, that the contested mark YAMAS is a popular Greek term, used when drinking to someone’s health or toasting — corresponding to the expression ‘cheers’ — and is very well known on account of its specific use, with the result that the contested mark is descriptive of the contested goods.

49      In that regard, it must be noted, as observed by EUIPO, that it is unlikely that the average Spanish consumer of alcoholic drinks will know the Greek term ‘yamas’. It cannot be regarded as a well-known fact and should have been supported by evidence, which the applicant did not provide.

50      In any event, even if the Greek term ‘yamas’ were known by the relevant public and if, for that reason, the contested mark were descriptive, those circumstances would not change the Board of Appeal’s finding that the signs in question are conceptually different. That finding must therefore also be confirmed.

 The likelihood of confusion

51      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, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

52      As particular marketing strategies for the goods covered by the marks may vary over time and depend on the wishes of the proprietors of those marks, an analysis of whether there will be a likelihood of confusion between two marks cannot be dependent on the marketing intentions of the proprietors of the marks, whether implemented or not, which are by their very nature subjective (judgments of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59, and of 9 September 2008, Honda Motor Europe v OHIM — Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 63).

53      In the present case, with regard to the likelihood of confusion, the Board of Appeal attached particular weight to the phonetic similarities between the marks at issue on account of the fact that the goods in question, as a general rule, are purchased orally. More specifically, it found that the goods in question were likely to be purchased orally in restaurants, pubs, bars, nightclubs and discotheques, that is to say, places that tend to be noisy, which diminished the importance of any visual differences and amplified the possibility of confusion on account of phonetic similarities. Furthermore, in such noisy environments, the small phonetic difference between the final part of the marks, that is to say, the consonant ‘s’ in the contested mark, will be barely noticeable. In addition, when served in those public places, customers often receive their drinks in a glass and not in those drinks’ specific packaging. The Board of Appeal took the view that the impression of similarity will prevail on account of the low degree of visual similarity and the very high degree of phonetic similarity, in particular, when attention is paid to the fact that the goods covered by the mark in question are identical and the relevant public’s level of attention is no higher than average.

54      The applicant argues, first of all, that the earlier mark is wholly devoid of distinctive character or is distinctive only to a very low degree, as the mark does not appear to be used at all in the European Union and is not descriptive of the goods it covers. This significantly limits the possibility of any likelihood of confusion.

55      In that regard, it must be observed, first of all, that the alleged lack of use of the earlier mark, relied on by the applicant, is irrelevant in respect of the assessment of the inherent distinctive character of the earlier mark.

56      In addition, it should be borne in mind that the distinctive character of the earlier mark is one of the factors relevant to the assessment of the likelihood of confusion, and that such distinctiveness is a result of the intrinsic qualities of that mark or of its reputation. Marks with a highly distinctive character enjoy broader protection, and therefore, in a case involving an earlier mark of that kind, the likelihood of confusion is greater. However, the distinctive character of the earlier mark is only one factor among others involved in the assessment of the likelihood of confusion and there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see, to that effect, judgments of 12 November 2008, Nalocebar v OHIM — Limiñana y Botella (Limoncello di Capri), T‑210/05, not published, EU:T:2008:482, paragraph 51 and the case-law cited, and of 16 September 2009, Zero Industry v OHIM — zero Germany (zerorh+), T‑400/06, not published, EU:T:2009:331, paragraph 74). Accordingly, the existence of a likelihood of confusion cannot be ruled out, even where the earlier mark has a low degree of distinctiveness (see, to that effect, order of 15 January 2010, Messer Group v Air Products and Chemicals, C‑579/08 P, not published, EU:C:2010:18, paragraphs 68 to 72 and the case-law cited).

57      In the light of the foregoing, the Court upholds the Board of Appeal’s assessment that the degree of distinctiveness of the earlier mark is average. Indeed, the earlier mark has no meaning in respect of the goods in question, alcoholic drinks, for the public in the relevant territory, as the word ‘llama’ means ‘flame’ or ‘a domesticated animal typical of the Andes’.

58      With regard to the likelihood of confusion, the applicant claims that the Board of Appeal failed to take into account all the relevant factors in the present case, and therefore erred in finding that there was a likelihood of confusion between the marks in question.

59      In that regard, first, it should be noted that the goods in Class 33 covered by the marks at issue are identical. Secondly, it should be borne in mind that the General Court has upheld the Board of Appeal’s findings with regard to the very high phonetic similarity between the signs in question and to the low visual similarity of those signs. Therefore, even if, in part of the territory concerned, the marks were regarded as having only a low degree of similarity overall, this would not rule out a likelihood of confusion between the marks, by virtue of the principle of interdependence of the relevant factors (see, to that effect, judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17).

60      Furthermore, as regards the applicant’s argument that the Board of Appeal did not take into account the significance of the visual difference of the signs, even though the goods are sold in their packaging and mainly in self-service shops such as supermarkets and food shops, it must be noted, as observed by EUIPO, that the type of drinks covered by the application for registration may also be ordered orally in bars or restaurants. In addition, the goods in question for which protection is sought cover the general category of ‘alcoholic beverages (except beer)’, which may include any kind of alcoholic beverage, including spirits, which are regularly sold in bars, nightclubs and restaurants.

61      It is also necessary to agree with the Board of Appeal’s observation that, in the alcoholic beverages sector in general, consumers usually describe and recognise those drinks by reference to the word element which identifies them, in particular in bars, discotheques, nightclubs and restaurants, where those drinks are ordered orally after their names have been seen on the menu or the wine list (see, to that effect, judgment of 23 November 2010, Codorniu Napa v OHIM — Bodegas Ontañon (ARTESA NAPA VALLEY), T‑35/08, EU:T:2010:476, paragraph 62).

62      When goods are ordered orally, the phonetic similarity between the signs in question is particularly important (see, to that effect, judgments of 29 February 2012, Azienda Agricola Colsaliz di Faganello Antonio v OHIM — Weinkellerei Lenz Moser (SERVO SUO), T‑525/10, not published, EU:T:2012:96, paragraph 21, and of 2 February 2016, Antica Azienda Agricola Vitivinicola Dei Conti Leone De Castris v OHIM — Vicente Gandía Pla (ILLIRIA), T‑541/14, not published, EU:T:2016:51, paragraph 48).

63      Lastly, with regard to the applicant’s argument that the conceptual difference between the marks reduces the risk that the public may believe that the goods in question come from the same undertaking or from economically linked undertakings, it must be noted, as observed by EUIPO, that, in the present case, the relevant public will attribute a meaning to the word ‘llama’ making up the earlier mark only when they see the bottle, not when they hear that name in a noisy bar or discotheque. The conceptual difference between the marks in question could therefore escape the notice of the greater part of the relevant public. Consequently, the conceptual content of the earlier mark is not such as to counteract the visual and phonetic similarities between the marks in question.

64      Given the visual and phonetic similarities between the signs in question, and given that, contrary to the applicant’s claims, it cannot be established that those similarities are counterbalanced by the conceptual difference between those signs and, having regard to the fact that the goods are identical, to the principle of interdependence of the relevant factors involved in the assessment of the likelihood of confusion, to the average level of attention of the relevant public and to the similarities between the signs which prevail over the differences, it is necessary to agree with the Board of Appeal’s finding that there is a likelihood of confusion between the marks in question.

65      The Board of Appeal was therefore correct to find that there was a likelihood of confusion between the marks in question.

66      Therefore, for the above reasons, the applicant’s action must be dismissed in its entirety, without there being any need to rule on the admissibility of the applicant’s heads of claim seeking annulment of the Opposition Division’s decision and registration of the mark applied for.

 Costs

67      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.

68      As the applicant has been unsuccessful, it must be ordered to pay the costs incurred by EUIPO and the intervener, in accordance with the form of order sought by those parties.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Dimitrios Mitrakos to pay the costs.

Delivered in open court in Luxembourg on 20 April 2018.

*      Language of the case: English.

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