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

JUDGMENT OF THE GENERAL COURT (Single Judge)

26 June 2018 (*)

(EU trade mark - Opposition proceedings - Application for EU word mark COSIMO - Earlier EU word mark COSIFLOR - 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) - Proof of genuine use of the earlier mark - Article 42(2) of Regulation No 207/2009 (now Article 47(2) of Regulation 2017/1001))

In Case T‑739/16,

Akant Monika i Zbigniew Harasym sp.j., established in Koszalin (Poland), represented by M. Krekora, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Walicka, acting as Agent,

defendant,

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

Hunter Douglas Holding GmbH & Co. KG, established in Düsseldorf (Germany), represented by M. Sonntag, lawyer,

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 22 August 2016 (Case R 2364/2015‑2), relating to opposition proceedings between Hunter Douglas Holding and Akant Monika i Zbigniew Harasym,

THE GENERAL COURT (Single Judge),

Judge: U. Öberg,

Registrar: J. Palacio González, Principal Administrator,

having regard to the application lodged at the Court Registry on 25 October 2016,

having regard to the response of EUIPO lodged at the Court Registry on 1 March 2017,

having regard to the response of the intervener lodged at the Court Registry on 23 February 2017,

further to the hearing on 10 April 2018,

gives the following

Judgment

 Background to the dispute

1        On 11 September 2013, the applicant, Akant Monika i Zbigniew Harasym sp.j., filed an application for registration of an EU trade mark at the European Union Intellectual Property Office (EUIPO) in accordance with 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 word sign COSIMO.

3        The goods in respect of which registration was sought are in Classes 20, 22 and 24 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 in particular, for each of those classes, to the following description:

–        Class 20: ‘Pleated blinds (made of metal or plastics, for internal use); Roman blinds (made of metal or plastics, for internal use); Vertical blinds (made of metal or plastics, for internal use); Panel tracks (made of metal or plastics, for internal use); Pleated blinds (made of metal or plastics, for internal use); Blinds of textile (made of metal or plastics, for internal use)’;

–        Class 22: ‘Tarpaulins; Sun breakers (external blinds of textile); Ladder tapes for venetian blinds, blinds and awnings’;

–        Class 24: ‘Sun breakers (internal blinds of textile); Pleated blinds (made of textile, for internal use); Roman blinds (made of textile, for internal use); Vertical blinds (made of textile, for internal use); Panel tracks (made of textile, for internal use); Blinds of textile (made of textile, for internal use)’.

4        The trade mark application was published in Community Trade Marks Bulletin No 4/2014 of 9 January 2014.

5        On 8 April 2014, the intervener, Hunter Douglas Holding GmbH & Co. KG, 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 referred to in paragraph 3 above.

6        The opposition was based on the earlier EU word mark COSIFLOR, registered on 23 September 1998 under No 174649 covering goods in Classes 6, 19 and 24 and corresponding, for each of those classes, to the following description:

–        Class 6: ‘Roller blinds, of metal or a combination of metal and wood, textile materials, and/or plastic and parts for the aforesaid goods; jalousies, in particular vertical jalousies of metal or of a combination of metal and wood, textile materials and/or plastics and parts for the aforesaid goods’;

–        Class 19: ‘Roller blinds, of wood and/or plastics or of a combination of wood and/or plastics and metal and/or textile materials, and parts for the aforesaid goods; jalousies, in particular vertical jalousies of wood and/or plastics or of a combination of wood and/or plastics and metal and/or textile materials, and parts for the aforesaid goods’;

–        Class 24: ‘Folding curtains, predominantly of textile materials or of a combination of textile materials and metal, wood and/or plastics, and parts for the aforesaid goods; roller blinds of textile materials or of a combination of textile materials and metal, wood and/or plastics and parts for the aforesaid goods; jalousies, in particular vertical jalousies of textile materials or of a combination of textile materials and metal, wood and/or plastics, and parts for the aforesaid goods’.

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

8        On 27 April 2015, the Opposition Division rejected the opposition in its entirety on the ground that there was no likelihood of confusion between the signs at issue. It held, inter alia, that, due to the differences between the respective endings of the signs at issue, namely ‘flor’ and ‘mo’, the marks were visually and phonetically different. Thus, in so far as the signs at issue gave rise to different overall impressions, the Opposition Division took the view that the relevant public would not confuse the origin of the goods in question.

9        On 25 November 2015, the intervener 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 22 August 2016 (‘the contested decision’), the Second Board of Appeal of EUIPO annulled the decision of the Opposition Division.

11      In the contested decision, the Board of Appeal concluded, first, that no valid request for proof of genuine use of the earlier mark within the meaning of Article 42(2) of Regulation No 207/2009 (now Article 47(2) of Regulation 2017/1001) had been made by the applicant before the Opposition Division and, second, that the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 could not be excluded for all of the goods in question. In that regard, the Board of Appeal found that the relevant public was composed of both professional consumers and the general public displaying a high degree of attention. It found that the goods covered by the mark applied for were identical or very similar to the goods covered by the earlier mark. Concerning the comparison of the signs at issue, it concluded that they were visually similar and had a certain degree of phonetic similarity. Conceptually, it found that a significant part of the relevant public, namely at the very least the Dutch- and German-speaking consumers of the goods in question, would not attribute any particular meaning to the signs at issue. Therefore, having regard to the normal distinctiveness of the earlier mark, the Board of Appeal concluded that there was, at the very least for that part of the relevant public, a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs incurred in the present proceedings and order the intervener to pay the costs incurred before the Board of Appeal of EUIPO.

13      EUIPO and the intervener contend that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

14      In support of its action, the applicant relies on two pleas in law, the first alleging infringement of Article 42(2) of Regulation No 207/2009 and the second alleging infringement of Article 8(1)(b) thereof.

 First plea in law, alleging infringement of Article 42(2) of Regulation No 207/2009

15      The applicant submits that, in so far as it maintained, first before the Opposition Division and then before the Board of Appeal, that there was no proof of genuine use of the earlier mark, it requested, in a manner that left no doubts and in good time, proof of use of its mark from the intervener.

16      EUIPO and the intervener contend that the present plea in law is unfounded. They argue that, under Article 42(2) and (3) of Regulation No 207/2009 (Article 42(3) now being Article 47(3) of Regulation 2017/1001), the request for proof of genuine use of the earlier mark must be explicit and unambiguous. They state that such a request was not submitted by the applicant, which merely challenged the enhanced distinctiveness of the earlier mark relied on by the intervener with regard to the evidence already produced.

17      At the hearing, the applicant acknowledged that it had not made an express request for proof of genuine use of the earlier mark during the proceedings before EUIPO. It nevertheless maintains that, even in the absence of such a request, the intervener should have realised that the applicant was disputing the genuine use of the earlier mark.

18      Pursuant to Article 42 of Regulation No 207/2009, it is only when the applicant has so requested that the proprietor of an earlier trade mark who has given notice of opposition will be required to furnish proof that, during the period of five years preceding the date of publication of the EU trade mark application, the earlier trade mark has been put to genuine use in the territory in which it is protected in connection with the goods or services in respect of which it is registered and which that proprietor cites as justification for its opposition, or that there are proper reasons for non‑use.

19      Such a request must be made expressly before the Opposition Division (see, to that effect, judgment of 22 March 2007, Saint-Gobain Pam v OHIM - Propamsa (PAM PLUVIAL), T‑364/05, EU:T:2007:96, paragraphs 34 and 37 and the case-law cited).

20      In the present case, it is common ground that the applicant merely stated, in its observations before the Opposition Division, that the intervener had not provided any evidence of use of the earlier mark.

21      As correctly pointed out by EUIPO and the intervener, that declaration was not worded as an explicit and unambiguous request for proof of use, in line with the requirements set out in paragraphs 18 and 19 above, and is more of a simple observation on the probative value of the documents produced by the intervener. There is, moreover, no other material in the file capable of constituting such a request.

22      In those circumstances, the Board of Appeal acted correctly in taking the view that the applicant had not made a request for proof of genuine use of the earlier mark.

23      It follows that the first plea in law must be rejected.

 Second plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009

24      The applicant claims, in essence, that the Board of Appeal erred in finding that there was a likelihood of confusion between the signs at issue.

25      In that regard, the applicant claims that, since the goods covered by the signs at issue, with the exception of those in Class 24, are in different classes, they cannot be regarded as identical or similar. Moreover, according to the applicant, the goods covered by the signs at issue are used differently. Thus, the ‘tarpaulins’ designated by the mark applied for serve as awnings to shade a window or a terrace, in contrast to the ‘jalousies’ or ‘blinds’ covered by the earlier mark and intended to screen windowpanes.

26      Furthermore, the applicant complains that the Board of Appeal failed to take account of the various elements of the signs at issue and concentrated its examination of the similarity of the signs on their common element, namely the term ‘cosi’, which constitutes only 50% of the earlier mark.

27      The applicant submits that the signs at issue produce different overall impressions. It sees no reasons why consumers of the goods in question would focus on the initial part of those signs.

28      The applicant notes that, visually and phonetically, the signs at issue differ in their final syllable, which is sufficiently long to be easily perceived by the relevant public demonstrating a high level of attention.

29      On the conceptual level, the applicant disputes the finding of the Board of Appeal that the mark applied for is not associated with the Italian masculine first name Cosimo or with its feminine version Cosima and that it has, like the earlier mark, no meaning from the point of view of the German- and Dutch-speaking consumers of the goods in question.

30      EUIPO and the intervener dispute the applicant’s arguments. They agree with the conclusion reached by the Board of Appeal in the contested decision that the common four letters, placed at the beginning of the signs at issue, lead to a visual and phonetic similarity. The coincidence in the first two syllables ‘co’ and ‘si’ has, they submit, a much stronger impact than the difference in the last two syllables ‘flor’ and ‘mo’, with the result that there is at least some degree of visual and phonetic similarity of the two marks.

31      Under Article 8(1)(b) of Regulation No 207/2009, 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, an 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.

32      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 case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and of the 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 judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 33 and the case-law cited, and of 22 September 2016, SunCali v EUIPO - Abercrombie & Fitch Europe (SUN CALI), T‑512/15, EU:T:2016:527, paragraph 44 and the case-law cited).

33      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; judgment of 22 September 2016, SUN CALI, T‑512/15, EU:T:2016:527, paragraph 45).

34      It is by reference to those considerations that it must be examined whether the Board of Appeal acted correctly in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

 The relevant public and its level of attention

35      According to the case-law, in the context of 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 (judgment of 3 September 2009, Aceites del Sur-Coosur v Koipe, C‑498/07 P, EU:C:2009:503, paragraph 74; see, also, 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).

36      According to the Board of Appeal, first, the relevant territory is that of the European Union and, second, the relevant public for the goods in question is composed of professionals specialising in the field of home maintenance, improvement and renovation and of members of the general public displaying a high level of attention, since they do not purchase the goods covered by the signs at issue on a daily basis.

37      The intervener submits that the average consumer belonging to the general public will not display an above-average level of attention, since the goods in question are, inter alia, everyday consumer goods, standardised and likely to be purchased at the last minute. In that regard, the intervener specifies that market conditions are characterised by an increase in online sales platforms and large furniture and DIY distribution chains, the goods of which are aimed at consumers belonging to the general public and displaying an average level of attention.

38      In that regard, it must be held that, as the applicant argued at the hearing, the goods in question are not, at least to a large extent, standardised goods. Their choice requires a process of reflection on the part of the average consumer, who will have to verify, in particular, their dimensions and will not purchase them on a daily basis. Those goods are, indeed, frequently offered in the context of advisory and installation services provided by professionals.

39      In the light of the foregoing, it is necessary to uphold the Board of Appeal’s findings, which are, moreover, not disputed by the applicant, that the relevant public consists of professional consumers of the goods in question and of the general public displaying a high level of attention.

 Comparison of the goods

40      In order to assess the similarity of the goods or the services in question, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment of 21 January 2016, Hesse v OHIM, C‑50/15 P, EU:C:2016:34, paragraph 21 and the case-law cited).

41      Where the goods covered by an earlier mark include goods covered by a trade mark application, those goods are considered to be identical (see judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM - Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 44 and the case-law cited).

42      In the present case, the Board of Appeal held that all of the goods in Class 20 designated by the mark applied for were included in the goods covered by the earlier mark in Class 24.

43      As regards the goods in Class 22 designated by the mark applied for, the Board of Appeal held, in paragraphs 57 and 65 of the contested decision, that ‘sun breakers’ were included in ‘jalousies’ of metal, wood or a combination of those materials covered by the earlier mark in Classes 6 and 19 and that ‘ladder tapes for venetian blinds, blinds and awnings’ were identical or very similar to ‘roller blinds’, ‘jalousies’ and ‘folding curtains’ and to ‘parts for the aforesaid goods’, covered by the earlier mark and included in Classes 6, 19 and 24. Furthermore, the Board of Appeal held that the ‘tarpaulins’ covered by the mark applied for were also very similar to the ‘jalousies’ covered by the earlier mark.

44      As regards the goods in Class 24 designated by the mark applied for, the Board of Appeal noted that all of those goods, made of textile and intended for internal use, were identical to ‘roller blinds’, ‘jalousies’ and ‘folding curtains’ of textile materials or of a combination of textile materials with other materials, covered by the earlier mark and included in that same class.

45      The applicant has not put forward any argument or evidence capable of calling into question the soundness of the Board of Appeal’s finding that the goods in question were partially identical and partially highly similar. Contrary to the applicant’s argument, the fact that the goods at issue come under different classes does not rule out the conclusion that they are identical or very similar (see, in that regard, judgments of 11 July 2007, El Corte Inglés v OHIM - Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 38, and of 8 May 2014, Pyrox v OHIM - Köb Holzheizsysteme (PYROX), T‑575/12, not published, EU:T:2014:242, paragraph 52).

46      Furthermore, while it must be held that ‘tarpaulins’ designated by the mark applied for in Class 22 differ from ‘jalousies’, in that they are intended for outdoor, not indoor, use, and are not an assembly of strips or panels and are not used to screen windowpanes, but to shade windows or terraces, those considerations by themselves do not suffice to call into question the conclusion that ‘tarpaulins’ are, in essence, very similar to some of the goods designated by the earlier mark.

47      Contrary to what the applicant claims, ‘tarpaulins’, in particular those made of textile which are intended to shade terraces or windows, may be regarded as very similar to ‘blinds’ of textile materials or combining metal or wood and textile materials included in Classes 6, 19 and 24 covered by the earlier mark. All of those goods seek to provide protection against bad weather or the sun and address the same needs in so far as they can be used each as an alternative to the other, in the context of outdoor use.

48      In the same way, even though ‘sun breakers (external blinds of textile)’, designated by the mark applied for in Class 22, are not included in ‘jalousies’ of metal, wood or a combination of those materials, covered by the earlier mark in Classes 6 and 19, they are included in ‘blinds’ of textile materials or combining metal or wood and textile materials, covered by the earlier mark and coming within Classes 6, 19 and 24 for which an internal or external use has not been specified.

49      In the light of all of the foregoing, the Board of Appeal was right to find, in paragraph 69 of the contested decision, that the goods covered by the mark applied for were identical or highly similar to the goods covered by the earlier mark.

 Comparison of the signs

50      According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgments of 23 October 2002, Matratzen Concord v OHIM - Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:26, paragraph 30, and of 10 December 2008, MIP Metro v OHIM - Metronia (METRONIA), T‑290/07, not published, EU:T:2008:562, paragraph 41).

51      In particular, although there may be a word or element which is common to the signs at issue, that does not in itself entail the finding of a similarity between the signs at issue (see, to that effect, judgment of 10 December 2015, El Corte Inglés v OHIM, C‑603/14 P, EU:C:2015:807, paragraph 49 and the case-law cited).

52      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 that 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).

–       Visual comparison

53      With regard to visual similarity, the Board of Appeal found that the signs at issue coincided in the element ‘COSI’, which constitutes the initial part of each of the signs, and that they differed in their respective endings, namely the elements ‘FLOR’ and ‘MO’, even though those elements both contained the letter ‘o’.

54      It should be noted that, according to the case-law, the importance of certain visual dissimilarities may be diminished by the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks at issue, and must rely on his imperfect recollection of them (see judgment of 4 June 2013, i-content v OHIM - Decathlon (BETWIN), T‑514/11, EU:T:2013:291, paragraph 74 and the case-law cited).

55      In the present case, the signs at issue coincide in the element ‘COSI’ and in the vowel ‘o’ located, for each of the signs, in the third syllable. Since five of the six letters of the mark applied for are included in the earlier mark, the Board of Appeal rightly found, in paragraph 88 of the contested decision, that the visual differences between the signs at issue, namely the letters ‘f’, ‘l’ and ‘r’ of the earlier mark and the letter ‘m’ of the mark applied for, cannot call into question the finding that the signs at issue are visually similar.

–       Phonetic comparison

56      As regards the phonetic comparison, first, it must be held that the Board of Appeal applied, by analogy, the same considerations as those set out in paragraph 53 above.

57      Second, it must be pointed out that the Board of Appeal stated that the signs at issue, consisting of a single word, had the same number of syllables, and that they had the same sequence of vowels, namely ‘o’, ‘i’, ‘o’, in the same order as used in the two marks.

58      In view of the coincidence of the signs in question in relation to their initial parts and their respective vowels, the Board of Appeal acted correctly in taking the view, in paragraph 94 of the contested decision, that the signs at issue are pronounced with the same rhythm and with the same intonation.

59      Since the letters ‘f’, ‘l’ and ‘m’ are located in the middle of the signs at issue, the difference in pronunciation of the signs arising from the presence of those different consonants will be minor from the point of view of members of the relevant public who hear those word elements spoken with a view to purchasing the goods in question (see, to that effect, judgment of 7 November 2007, NV Marly v OHIM - Erdal (Top iX), T‑57/06, not published, EU:T:2007:333, paragraph 86).

60      In those circumstances, the Board of Appeal cannot be criticised for having found, in paragraph 95 of the contested decision, that the signs at issue have a certain phonetic similarity.

–       Conceptual comparison

61      As regards the conceptual comparison, it should be noted that the Board of Appeal found that the German- and Dutch-speaking part of the relevant public would not attribute any particular meaning to the signs at issue.

62      According to the case-law, conceptual differences between two signs may counteract phonetic and visual similarities between them, provided that at least one of those signs has, from the point of view of the relevant public, a clear and specific meaning, so that the public is capable of grasping it immediately and the other mark must have no such meaning or an entirely different meaning (see judgments of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 98 and the case-law cited, and of 17 March 2004, El Corte Inglés v OHIM - González Cabello and Iberia Líneas Aéreas de España (MUNDICOR), T‑183/02 and T‑184/02, EU:T:2004:79, paragraph 93 and the case-law cited).

63      As regards the mark applied for, the applicant has failed to substantiate its claim that that mark refers, from the point of view of the German- and Dutch-speaking part of the relevant public, to the Italian masculine first name Cosimo or its feminine version Cosima.

64      Furthermore, as regards the earlier mark, it must be stated that, contrary to what the applicant argues, even if that same part of the relevant public understands English, it follows from the different meaning of the words constituting that mark that it has no clear and specific meaning in that language such as to enable consumers to understand it directly.

65      Even if the element ‘FLOR’ of the earlier mark were capable of referring to the words ‘flower’ or ‘floor’ or to ‘Flur’, meaning ‘corridor’ in German, its combination with the element ‘COSI’ in the earlier mark, evoking the adjective ‘cosy’, is not capable of directly conveying a specific concept to the relevant part of the public concerned.

66      In the light of the foregoing, it must be concluded, as the Board of Appeal did, that, since neither of the marks in question has any clear and specific meaning, a conceptual difference between those marks cannot be assessed in this case, at least with regard to the German- or Dutch-speaking part of the relevant public (see, to that effect, judgments of 10 March 2016, credentis v OHIM - Aldi Karlslunde (Curodont), T‑53/15, not published, EU:T:2016:136, paragraph 48, and of 13 May 2016, Market Watch v EUIPO - Glaxo Group (MITOCHRON), T‑312/15, not published, EU:T:2016:303, paragraph 35).

 Likelihood of confusion

67      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 lesser degree of similarity between the goods or services may be offset by a greater 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).

68      In the present case, after pointing out that the distinctive character of the mark applied for had to be regarded as normal, the Board of Appeal concluded, in paragraph 132 of the contested decision, that there was a likelihood of confusion, at least, on the German- and Dutch-speaking part of the relevant public, even if the latter displayed a high level of attention. The Board of Appeal based that conclusion, first, on the identity and high similarity of the goods at issue and, second, on the visual similarity of the signs at issue and their certain degree of phonetic similarity, which no clear conceptual difference could counteract.

69      As is apparent from paragraphs 50 to 66 above, the comparison of the signs carried out by the Board of Appeal is correct, since the Board of Appeal rightly held that the differences between the signs, connected to the presence of the letters ‘f’, ‘l’, ‘r’ and ‘m’, were not liable to offset the overall similarity of the signs at issue.

70      In light of all of the foregoing, the Board of Appeal acted correctly in finding that there was a likelihood of confusion between the signs at issue.

71      Consequently, the present plea in law must be rejected and the action dismissed in its entirety.

 Costs

72      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.

73      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 (Single Judge),

hereby:

1.      Dismisses the action;

2.      Orders Akant Monika i Zbigniew Harasym sp.j. to pay the costs.

Delivered in open court in Luxembourg on 26 June 2018.

*      Language of the case: English.

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