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

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

28 November 2019 (*)

(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark Vibble — Earlier German word mark vybe — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑665/18,

Soundio A/S, established in Drammen (Norway), represented by N. Köster and J. Albers, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by D. Gája and H. O’Neill, acting as Agents,

defendant,

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

Telefónica Germany GmbH & Co. OHG, successor to E-Plus Mobilfunk GmbH, established in Düsseldorf (Germany), represented by P. Neuwald, lawyer,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 4 September 2018 (Case R 721/2018-5), relating to opposition proceedings between E-Plus Mobilfunk GmbH and Soundio,

THE GENERAL COURT (Eighth Chamber),

Composed, at the time of deliberation, of A.M. Collins, President, M. Kancheva (Rapporteur) and G. De Baere, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 12 November 2018,

having regard to the response of EUIPO lodged at the Court Registry on 15 February 2019,

having regard to the response of the intervener lodged at the Court Registry on 21 February 2019,

having regard to the fact that no request for a hearing was submitted by the parties within 3 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 21 July 2015, the applicant, Soundio A/S, obtained international registration covering the European Union for the word mark Vibble from the World Intellectual Property Organisation (WIPO) under number 1 290 194.

2        On 3 March 2016, the European Union Intellectual Property Office (EUIPO) received notification of the international registration of that mark, 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)).

3        The goods and services in respect of which protection was sought are, inter alia, in Classes 9, 38 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 9: ‘Computers; computer software, including computer software for use in connection with websites on the internet and other services containing music, music streaming services, other online entertainment services, online meetings, online communication services and online games; computer software for music production; computer software for the playing, recording, processing and reproduction of sound and music; electronic effect pedals for musical instruments; CD-recordings’;

–        Class 38: ‘Telecommunication services, including broadcasting of digital and nondigital audio- and audiovisual content, TV programs, video content and films, wireless telephone services featuring music and music information; electronic transmission of data and information, communications by computer terminals; communications by fibre optic networks; transmission of still and moving images; communications by mobile phones; rental of access time to databases; providing access to digital music websites on the internet; internet radio broadcasting services; sound and television broadcasting of music, performance and other entertainment activities via the internet and other telecommunication systems, telecommunications in the internet, letting of access to chat space and discussion forums in the internet, digital pictures and services related to transmission of sound’;

–        Class 42: ‘Design and development of computer software, professional and technical assistance relating to product development and professional and technical assistance relating to engineering; consultant services related to computers, computer software; individual design and development of computer software, computer systems, websites and networks for others, hosting computer sites; hosting on-line facilities for conducting interactive discussion groups in the fields of music and entertainment via a global computer network’.

4        The trade mark application was published in European Union Trade Marks Bulletin No 2016/044 of 4 March 2016.

5        On 1 December 2016, E-Plus Mobilfunk GmbH, succeeded by the intervener, Telefónica Germany GmbH & Co. OHG, 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 inter alia on the earlier German mark vybe, filed on 19 September 2006 and registered on 13 November 2006 under number 30 658 294, covering in particular, ‘telecommunications, in particular mobile communications’ services.

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

8        By decision of 19 February 2018, the Opposition Division of EUIPO upheld the opposition in part with respect to all of the goods and services at issue in Classes 9, 38 and 42, on the ground that there was a likelihood of confusion between the trade marks concerned. However, it rejected the opposition with respect to certain services in Class 42, namely ‘professional and technical assistance relating to product development and professional and technical assistance relating to engineering’ on the ground that they were different from the ‘telecommunications, in particular mobile communications’ services covered by the earlier German mark.

9        On 18 April 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.

10      By decision of 4 September 2018 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. In particular, it found that having regard to the level of attention of the public, which varies from average to high, the identity or similarity of the goods and services covered by the marks at issue, the average degree of visual similarity and the ‘considerable’ degree of phonetic similarity, and taking into account the fact that it is impossible to compare the marks on a conceptual level, there was a likelihood of confusion between the marks at issue with respect to the goods and services at issue in Classes 9, 38 and 42.

11      However, the Board of Appeal annulled in part the decision of the Opposition Division in so far as it had erroneously included ‘computer software for music production’ in Class 9 in the list of the goods at issue, in respect of which the opposition had been upheld, even though the opposition had not been directed at those goods.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        authorise registration of the mark applied for in respect of all of the goods and services covered;

–        order EUIPO to pay the costs.

13      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

14      In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. The applicant argues, in essence, that having regard to the visual, phonetic and conceptual differences between the marks at issue, those marks cannot be regarded as similar to the point of giving rise to a likelihood of confusion.

15      EUIPO and the intervener contend that there is a likelihood of confusion.

16      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if because of its identity with, or similarity to, the earlier trade mark and 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.

17      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 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).

18      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, 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).

 The relevant public

19      According to settled case-law, in the global assessment of the likelihood of confusion, account should be taken of the point of view of the average consumer of the category of goods or services 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).

20      In the present case, the Board of Appeal found that the relevant public was the German-speaking public, composed both of the general public and the professional public, and that the level of attention varied from average to high.

21      First of all, the findings of the Board of Appeal, which have not been disputed by the applicant, that the relevant territory for assessing the likelihood of confusion is Germany, and that the goods and services at issue in Classes 9 and 38 are aimed at both the general public with an average level of attention, as well as the professional public with a high level of attention, must be approved.

22      The applicant criticises the Board of Appeal for finding, first, that the goods and services at issue in Class 42 are aimed not only at the general public, with an average level of attention, but also professional customers, with a high degree of attention, and, second, that a likelihood of confusion among the public with the lowest level of attention was sufficient. In particular, the applicant argues that the services at issue in Class 42 are aimed exclusively at a professional public, with a high level of attention.

23      In that regard, the Board of Appeal’s assessment that the services in Class 42 are aimed at both a professional public in the IT sector and the general public must be found to be free from error. As the Board of Appeal rightly noted in the contested decision, the General Court has previously stated that services in Class 42 are most often aimed at specialists and dealers. Nonetheless, occasionally some consumers from the general public may from time to time make use of computer design, programming and online hosting services (see, to that effect, judgment of 17 February 2017, Construlink v EUIPO — Wit-Software (GATEWIT), T‑351/14, not published, EU:T:2017:101, paragraph 54 and the case-law cited).

24      As regards the level of attention of the relevant public, first, it follows from the case-law that, where it is made up of consumers who are part of the general public and of professionals, the group with the lowest level of attention must be taken into account (see judgment of 15 July 2011, Ergo Versicherungsgruppe v OHIIM — Société de développement et de recherche industrielle (ERGO Group), T‑221/09, not published, EU:T:2011:393, paragraph 21 and the case-law cited; see also, to that effect, judgment of 15 February 2011, Yorma’s v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S), T‑213/09, not published, EU:T:2011:37, paragraph 25). It follows that, in the present case, in respect of the relevant goods and services which are aimed at both the general public and professionals, account must be taken of the level of attention of the consumer who is part of the general public.

25      Secondly, it must be found, as EUIPO rightly did, that the relevant consumer, who is part of the general public, will take his or her decision as regards the purchase of the services at issue in Class 42, in particular those that are expensive or meet a particular technological need, such as computer and software design and development, on the basis of information obtained in advance. Under those circumstances, the degree of attention of the relevant consumer will be higher than average with respect to those goods and services (see, to that effect, judgment of 17 February 2017, GATEWIT, T‑351/14, not published, EU:T:2017:101, paragraph 54).

26      It follows that the Board of Appeal did not err in finding, in paragraph 35 of the contested decision, that the level of attention of the relevant public varied from average to high, and that in order to define the relevant public, the average German consumer with either an average or higher than average degree of attention must be taken into consideration, depending on the goods and services at issue.

 Comparison of the goods and services

27      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. These factors include, inter-alia, their nature, their purpose and 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 and services concerned (see, to that effect, judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).

28      In the present case, the Board of Appeal found that the goods and services at issue were either identical or similar.

29      The Board of Appeal’s assessment, which has not been disputed by the applicant, that the goods and services at issue in Class 38 are identical to the services designated by the earlier mark, and that the goods and services at issue in Class 9 are similar to the services designated by the earlier mark, must be upheld.

30      However, the applicant disputes the Board of Appeal’s finding that the services in Class 42 are similar to the services covered by the earlier mark. In particular, it argues that the services in Class 42 differ from the ‘telecommunications, in particular mobile telecommunications’ services, since their purpose, customers and distribution channels are different.

31      At the outset, it must be noted that, contrary to what EUIPO argues, the fact that the applicant did not dispute, before the Board of Appeal, the similarity of the services in Class 42 to those covered by the earlier mark cannot deprive it of the right to challenge before the General Court the findings of the Board of Appeal in that respect, the latter having endorsed the grounds for the Opposition Division’s decision in paragraph 41 of the contested decision (see, to that effect, judgment of 24 May 2011, ancotel v OHIM — Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 21 to 23 and 26 and the case-law cited).

32      However, the applicant’s arguments cannot succeed. All of the services in Class 42 covered by the mark applied for are IT services and are therefore highly complementary with telecommunications services and have similar purposes thereto, in particular the mobile communications covered by the earlier mark. In that regard, it is quite clear that, first, as the Opposition Division observed, the IT and telecommunications industries have been testing an expansion process, which makes it difficult, at present, to draw a clear line between their respective activities and results. Next, telecommunications are nowadays operated mainly through mobile telephones and smartphones which function with mobile applications and software designed and developed by IT undertakings. Furthermore, as the intervener explained, telecommunications also encompass undertakings that manufacture IT equipment and in that context, are in a position to offer their customers integrated solutions which include telecommunications services as such and a wide range of IT products and IT-related products. Finally, it also follows from the foregoing considerations that the services at issue may be provided to the same clients via the same distribution channels.

33      Therefore, the Board of Appeal was correct in finding that the services in Class 42 covered by the mark applied for and the services in Class 38 covered by the earlier mark were similar.

 The comparison of the signs

34      According to settled case-law, 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).

 The allegedly distinctive and dominant elements of the earlier mark

35      The applicant criticises the Board of Appeal for failing to take into account dominant and distinctive elements of the marks at issue, namely the letter ‘y’ and the combination of the letters ‘v’ and ‘y’ in the earlier mark.

36      In that regard, it must be noted that, according to settled case-law, the dominance of an element comprising a mark entails examination of the question whether or not the overall impression given in the memory of the relevant public by that mark is dominated by one or more of its components. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

37      In the present case, first, it cannot be assumed, as the applicant argues, in an entirely unsubstantiated manner, that the components other than the letter ‘y’ and the combination of the letters ‘v’ and ‘y’ of the earlier mark vybe are negligible in the overall impression given by that mark, and therefore it cannot be concluded that the letter ‘y’ and the combination of the letters ‘v’ and ‘y’ in the earlier mark vybe are dominant.

38      Next, it should be recalled that the distinctive character of an element of a mark depends on the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (see judgment of 22 September 2016, Sun Cali v EUIPO — Abercrombie & Fitch Europe (SUN CALI), T‑512/15, EU:T:2016:527, paragraph 59 and the case-law cited). In the present case, as the intervener rightly emphasised, the letter ‘y’ and the combination of the letters ‘v’ and ‘y’ are not to be regarded as distinctive elements of the earlier mark vybe.

39      It follows that that argument must be rejected.

 Conceptual comparison

40      On the conceptual level, the Board of Appeal found that the signs at issue, Vibble and vybe, were invented terms with no meaning for at least a not insignificant section of the relevant public.

41      That assessment by the Board of Appeal must be approved.

42      As EUIPO has rightly argued, the marks at issue do not convey any clear concept for a significant part of the relevant public. Contrary to what the applicant claims, there is no particular reason why the entire relevant public would automatically understand the term ‘vybe’ as the English word ‘vibe’, given that part of the German public has no knowledge of English. In addition, it cannot be assumed that the entire relevant German public would be aware of the Swedish area of Vibble.

43      Moreover, in that regard, it must be added that, according to the case-law, a finding that there is a likelihood of confusion among a not insignificant part of the relevant public is sufficient to uphold an opposition brought against an application for registration of a mark (see 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; see also, to that effect, 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). The Board of Appeal was therefore correct when it referred to the part of the German public with no knowledge of English and who are not aware of the Swedish area of Vibble, for whom the marks at issue would be invented terms devoid of meaning.

44      As for the applicant’s argument that the intervener had itself marketed its mark in connection with the English word ‘vibe’, it is sufficient to note that following the case-law, since particular marketing strategies for goods covered by the marks can vary over time and depend on the wishes of the proprietors of those marks, the prospective assessment of the likelihood of confusion between two marks cannot be dependent on marketing intentions, whether implemented or not, which are by their very nature subjective for the proprietors of the marks (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).

45      Therefore, the Board of Appeal did not err in finding, in paragraphs 47 and 48 of the contested decision, that the marks at issue had no meaning, at least for a not insignificant part of the relevant public and that the conceptual comparison of the marks at issue was impossible.

 Visual comparison

46      As regards the visual comparison, the Board of Appeal found that in spite of the minor differences between the two word marks Vibble and vybe, namely their second letter (‘i’ in the mark applied for, and ‘y’ in the earlier mark) and their length (the mark applied for has two more letters, namely the fourth letter ‘b’ and the fifth letter ‘l’), the marks had three letters in common, namely the letters ‘v’, ‘b’ and ‘e’, since the letters ‘v’ and ‘e’, respectively, are found at the beginning and end of each of the two marks. The Board of Appeal concluded that there was an average degree of visual similarity between the marks at issue.

47      The Board of Appeal’s assessment in that regard, which has not been rebutted by the applicant’s arguments, must be upheld.

48      As regards the applicant’s argument criticising the Board of Appeal for citing the judgment of 25 March 2009, Kaul v OHIM — Bayer (ARCOL) (T‑402/07, EU:T:2009:85, paragraph 83), according to which what matters in the assessment of the visual similarity of two word marks is the presence in each of them of several letters in the same order, it must be held that the mere fact that the marks were ultimately held to be different in the judgment of 25 March 2009, ARCOL (T‑402/07, EU:T:2009:85), does not preclude the Board of Appeal from citing it in the contested decision as the basis for concluding that there was a visual similarity in the context of the comparison of the marks at issue, given that, in that judgment, the marks at issue differed in their initial part, to which the consumer generally pays greater attention (judgments of 7 September 2006, Meric v OHIM — Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, EU:T:2006:247, paragraph 51 and of 25 June 2008, Otto v OHIM — L’Altra Moda (l’Altra Moda), T‑224/06, not published, EU:T:2008:221, paragraph 43). That is not the case here, since the marks at issue have a common initial letter ‘v’. Furthermore, it is sufficient to note that the letters ‘v’, ‘b’, and ‘e’ actually appear in the same order, namely in first, in third and in last position in the marks at issue.

49      As regards the applicant’s complaint that the Board of Appeal failed to take into account the difference in length between the marks, it must be observed, as EUIPO did, that that minor difference between those two marks does not offset the similarity that follows from their shared initial letter ‘v’, but also the letters ‘b’ and ‘e’, which they have in common, and which are in third and last position in both marks.

50      Finally, as regards the argument that the marks differ in that the first letter ‘v’ is written in upper case in the mark Vibble and in lower case in the mark vybe, it is sufficient to note that the use of lower case letters and upper case letters has no bearing on the assessment of the similarity of word marks, given that their protection covers the word indicated in the application for registration, not any particular graphic or stylistic aspects of the mark.

51      Accordingly, the Board of Appeal was correct in finding, in paragraph 54 of the contested decision, that there was an average degree of visual similarity between the marks at issue.

 Phonetic comparison

52      As regards the phonetic comparison, in the first place, the Board of Appeal noted that for at least a not insignificant part of the relevant public that does not have any knowledge of English, the letter ‘i’ of the requested mark Vibble and the letter ‘y’ of the earlier mark vybe were pronounced almost identically in German. In the second place, it observed that the presence of the double ‘b’ and the ‘l’ in the mark applied for would not have a ‘remarkable’ impact on the pronunciation. In the third place, it regarded the presence of an additional syllable in the requested mark as insufficient to eclipse the presence of a phonetic similarity. The Board of Appeal concluded that there was a considerable degree of phonetic similarity.

53      The Board of Appeal’s findings in that respect, which have not been rebutted by the applicant’s arguments, must be upheld.

54      It follows from the case-law that, where the sign to be compared is an invented term that does not correspond to any existing word in an EU language, the likely pronunciation of the relevant public should be taken into account (judgment of 25 March 2009, ARCOL, T‑402/07, EU:T:2009:85, paragraph 87). That is the case here, given that it has been established in paragraph 45 above that the words ‘Vibble’ and ‘vybe’ were invented terms devoid of meaning.

55      In that regard, in the first place, it must be noted that the phonetic similarity between the signs at issue is determined, mainly, by the fact that the pronunciation of their first syllable will be very similar for a not insignificant part of the German-speaking public, since, contrary to what the applicant argues, it cannot be assumed that the entire relevant public will automatically pronounce the letter ‘y’ of the earlier mark vybe as a ‘ü’. As the intervener rightly noted, the invented term vybe is not associated with a word of Greek origin, for which, in the German language, the letter ‘y’ will generally be pronounced as a ‘ü’.

56      Therefore, the first syllable of the two signs, to which the consumer generally pays greater attention, in accordance with the case-law cited in paragraph 48 above, is likely to be pronounced in the same way, namely as the sound ‘vi’, at least for a not insignificant part of the relevant public with no knowledge of English.

57      Furthermore, it must be added that, according to the case-law cited in paragraph 43 above, the finding of a likelihood of confusion in respect of a not insignificant part of the relevant public is sufficient to uphold an opposition to an application for registration of a mark. The Board of Appeal was therefore correct to refer to the German-speaking public with no knowledge of English, who will pronounce the beginning of both signs in the same way.

58      In the second place, as regards the applicant’s argument that, in German, the double consonant ‘b’ in the mark applied for, Vibble, would result in a weaker and faster pronunciation than the vowel ‘i’, it must be noted that that single minor difference is not sufficient to eclipse the many phonetic similarities between the marks at issue, which have the letters ‘v’, ‘b’ and ‘e’ in common in first, third and last position, and which also share their initial part and a similar structure.

59      In the third place, it must be noted that the applicant’s argument that the Board of Appeal did not take sufficient account of the difference in length between the two marks cannot succeed, since, as the intervener stressed, the letter ‘e’ common to the two signs in last position will not be pronounced and the letter ‘l’ in the mark applied for will be aspirated due to the double letter ‘b’. Therefore, the difference in length between the signs at issue will be barely perceptible.

60      Having regard to the foregoing, the Board of Appeal was correct in finding, in paragraph 58 of the contested decision, that there was a considerable degree of phonetic similarity between the marks at issue.

 The likelihood of confusion

61      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 (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and 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 74).

62      In the present case, the Board of Appeal found, in essence, that having regard to the identity or similarity of the goods and services at issue, the average degree of visual similarity, the ‘considerable’ degree of phonetic similarity and the fact that it is impossible to compare the two marks at a conceptual level, and in the light of the principles of interdependence and imperfect recollection, there was a likelihood of confusion in the minds of a not insignificant part of the relevant public.

63      Those findings by the Board of Appeal, which have not been rebutted by the applicant’s arguments, must be confirmed.

64      In the first place, as regards the applicant’s argument criticising the Board of Appeal for going against the ‘rules and facts of recollection’, it is sufficient to note that it follows from settled case-law that, in the context of the global assessment of the likelihood of confusion, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his trust in the imperfect picture of them that he has kept in his mind (see judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26 and the case-law cited).

65      In the second place, the applicant argues that certain goods and services at issue are dissimilar or similar to varying degrees, and that the marks at issue differ visually and phonetically. Since those arguments merely reiterate arguments already developed in the context of the comparison of the goods and services and the comparison of the marks, which have been rejected in paragraphs 33, 51 and 60 above, it must be found that they must also be rejected.

66      In the third place, regarding the applicant’s argument that the conceptual difference between the marks at issue is sufficient to rule out a likelihood of confusion, it is sufficient to note that it follows from paragraph 45 above that it is impossible to compare the signs at issue at a conceptual level, as they are devoid of meaning. Therefore, there is no conceptual similarity that may offset the visual and phonetic similarities between the marks at issue.

67      It follows that the Board of Appeal was correct in finding that there was a likelihood of confusion in the minds of the relevant public, within the meaning of Article 8(1)(b) of Regulation 2017/1001.

68      As the single plea relied on by the applicant is unfounded, the action must be dismissed in its entirety, without it being necessary to examine the admissibility of the applicant’s second head of claim seeking authorisation to register the mark applied for.

 Costs

69      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.

70      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 (Eighth Chamber)

hereby:

1.      Dismisses the action.

2.      Orders Soundio A/S to pay the costs.

Delivered in open court in Luxembourg on 28 November 2019.

*      Language of the case: English.

© European Union
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