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

JUDGMENT OF THE GENERAL COURT (Second Chamber)

18 November 2020 (*)

(EU trade mark – Opposition proceedings – Application for EU word mark K7 – Earlier EU word mark k7 – Relative ground for refusal – Likelihood of confusion – Similarity of the goods – Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑21/20,

LG Electronics, Inc., established in Seoul (South Korea), represented by R. Schiffer, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral and V. Ruzek, acting as Agents,

defendant,

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

Miłosz Staszewski, residing in Wrocław (Poland), represented by E. Gryc‑Zerych, lawyer,

ACTION brought against the decision of the First Board of Appeal of EUIPO of 31 October 2019 (Case R 401/2019‑1), relating to opposition proceedings between Mr Staszewski and LG Electronics,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin and I. Nõmm (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 14 January 2020,

having regard to the response of EUIPO lodged at the Court Registry on 6 April 2020,

having regard to the response of the intervener lodged at the Court Registry on 6 April 2020,

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

gives the following

Judgment

 Background to the dispute

1        On 5 October 2015, the applicant, LG Electronics, Inc., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2        Registration as a mark was sought for the word mark K7.

3        The goods in respect of which registration was sought are, following the restrictions made in the course of the proceedings before EUIPO, in Class 9 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 to the following description: ‘Smart phones; mobile phones; wearable smart phones’.

4        The EU trade mark application was published in Community Trade Marks Bulletin No 2015/205 of 29 October 2015.

5        On 11 December 2015, the intervener, Mr Miłosz Staszewski, 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 all the goods referred to in paragraph 3 above.

6        The opposition was based on the earlier EU word mark k7, registered on 29 January 2015 under No 13256375, covering goods and services in Classes 9, 41 and 42 and corresponding, for each of those classes, to the following description:

–        Class 9: ‘Programs for computers; monitors [computer programs]; computer programmes [programs], recorded; computer programmes [programs], recorded; programs (computer -) [downloadable software]; programs (computer -) [downloadable software]; interactive multimedia computer programs; games software; programs (computer -) [downloadable software]; education software; computer programmes for image processing; computer programmes for data processing; downloadable music files; downloadable music files; modems; computers; interfaces for computers; microprocessors; blank discs; computer discs; computer memory devices; memory cards; memory expansion cards; global positioning instruments; USB flash drives; dictating machines; copiers (thermic -); copiers (electrostatic -); electronic publications, downloadable; downloadable publications’;

–        Class 41: ‘Publication of texts, other than publicity texts; consultation services relating to the publication of written texts; training courses relating to computer software; training courses relating to data base designs; training courses relating to computer hardware’;

–        Class 42: ‘Design of software; design and writing of computer software; software design and development; design of computer game software; image processing software design; design and development of computer hardware and software; design of software for processing and distribution of multimedia contents; maintenance of software; maintenance of and updating of computer software; rental and maintenance of computer software; installation and maintenance of computer programs; creating, maintaining, and modernizing computer software; installation, maintenance and repair of software for computer systems; computer software consultancy; consultancy in the field of software design; computer hardware and software consultancy; research and consultancy services relating to computer software; consultancy and advice on computer software and hardware; website design services; design, creation, hosting and maintenance of internet sites for third parties; rental of web servers; monitoring of computer systems by remote access; recovery of computer data’.

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        By decision of 11 December 2018, the Opposition Division upheld the opposition in respect of all the goods covered by the trade mark application.

9        On 15 February 2019, 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 31 October 2019 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the applicant’s appeal.

11      In the first place, it noted, in essence, that the goods in question were addressed to, in particular, the general public as the end consumers and that the relevant public consisted of average consumers in the European Union, who were reasonably well informed and reasonably observant and circumspect and whose level of attention was higher than in relation to everyday consumer goods, without, however, being particularly high. In the second place, as regards the comparison of the signs at issue, the Board of Appeal took the view that, since the marks at issue were word marks, it was immaterial whether the letter ‘k’ was depicted in upper or lower case and that, therefore, the signs at issue were identical. In the third place, when comparing the goods in question, it noted that the ‘smart phones; mobile phones; wearable smart phones’ covered by the mark applied for in Class 9 were similar, at least to some extent, to the category of ‘computers’ which were covered by the earlier mark and were also in that class. Lastly, in the fourth place, the Board of Appeal found that the signs at issue were identical and that, in the light of the principle of interdependence, a likelihood of confusion could not be excluded if the mark applied for were to be used for goods that were similar, even only to some extent, to the goods covered by the earlier mark, even assuming that the average consumer’s level of attention could be deemed to be higher in relation to the goods covered by the mark applied for than in relation to everyday consumer goods. Accordingly, the Board of Appeal concluded that a likelihood of confusion on the part of the relevant public was highly probable.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        review the contested decision and rule in its favour;

–        order EUIPO to pay the costs.

13      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

14      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs, including those incurred by the intervener in the course of the proceedings before the Board of Appeal.

 Law

15      In support of its application, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001.

16      The applicant submits, in essence, that the Board of Appeal erred in concluding that there was a likelihood of confusion in the present case. More specifically, the applicant disputes the Board of Appeal’s findings relating to the comparison of the goods at issue.

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

18      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 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 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.

19      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 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).

20      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).

21      It is in the light of those considerations that it is appropriate to assess whether the Board of Appeal was right in taking the view that there was, in the present case, a likelihood of confusion between the signs at issue.

 The relevant territory

22      Under Article 8(1)(b) of Regulation 2017/1001, the existence of a likelihood of confusion resulting from the similarity, on the one hand, between the trade mark in the application for registration and an earlier trade mark and, on the other hand, between the goods or services covered by the trade marks must be assessed on the part of the public in the territory in which the earlier trade mark is protected (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 51, and of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 59).

23      In paragraph 28 of the contested decision, the Board of Appeal noted that, since the earlier mark was an EU trade mark, the relevant territory was that of the European Union.

24      That finding, which, moreover, is not contested by the applicant, is consistent with the case-law cited in paragraph 22 above and must be upheld.

 The relevant public and its level of attention

25      In paragraph 22 of the contested decision, the Board of Appeal found that the technological goods in Class 9 could address, on the one hand, professionals and, on the other hand, the average consumer from the general public. It then noted, in paragraph 23 of the contested decision, that the ‘smart phones; mobile phones; wearable smart phones’ covered by the mark applied for in Class 9 were addressed, in particular, to the general public as end consumers and that the broad category of ‘computers’ including various software goods and computer hardware goods, covered by the earlier mark in Class 9, was also addressed, in particular, to that general public. Since both sets of goods addressed, in particular, the general public as end consumers, the Board of Appeal took the view, in paragraph 24 of the contested decision, that the likelihood of confusion was to be assessed on the part of the average consumer, who was reasonably well informed and reasonably observant and circumspect and whose level of attention was lower than that of an average professional.

26      In paragraph 27 of the contested decision, the Board of Appeal noted that the level of attention of the average consumer from the general public could be deemed to be higher in relation to the goods at issue than in relation to everyday consumer goods, although it could also not be deemed to be particularly high.

27      The applicant does not dispute the assessments made in the contested decision relating to the definition of the relevant public. By contrast, the applicant takes the view, in essence, that the level of attention of consumers when purchasing the goods at issue is particularly high because of the price, the features that they have and the need to subscribe to a multi-year cellular or data plan contract in the case of ‘smart phones’. According to the applicant, the goods at issue are purchased with care and deliberation.

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

29      As regards, in the first place, the definition of the relevant public, it should be borne in mind that, where the marks at issue are registered or registration of those marks is sought in respect of different goods or services, the Board of Appeal is required to identify the consumers who, in the relevant territory, are likely to use each of those goods or services (judgment of 17 February 2017, Construlink v EUIPO – Wit-Software (GATEWIT), T‑351/14, not published, EU:T:2017:101, paragraph 44).

30      Furthermore, according to the case-law, the relevant public to be taken into account for the assessment as to whether there is a likelihood of confusion is composed only of consumers likely to use both the goods or services covered by the earlier mark and the goods or services covered by the mark applied for (see, to that effect, judgments of 1 July 2008, Apple Computer v OHIM – TKS-Teknosoft (QUARTZ), T‑328/05, not published, EU:T:2008:238, paragraph 23, and of 30 September 2010, PVS v OHIM – MeDiTA Medizinische Kurierdienst (medidata), T‑270/09, not published, EU:T:2010:419, paragraph 28).

31      Moreover, as regards the assessment of the likelihood of confusion, the part of the relevant public with the lowest level of attention must be taken into account unless that part of the public must be regarded as insignificant (see, to that effect, judgment of 16 December 2015, CareAbout v OHIM – Florido Rodríguez (Kerashot), T‑356/14, not published, EU:T:2015:978, paragraph 25 and the case-law cited).

32      As a preliminary point, it should be observed that the Board of Appeal, for the purposes of assessing whether there was a likelihood of confusion, took into account the broad category of ‘computers’ including various software goods and computer hardware goods, covered by the earlier mark in Class 9, and the ‘smart phones; mobile phones; wearable smart phones’ covered by the mark applied for, which are also in Class 9.

33      In that regard, it should be observed that it is apparent from the case-law that, within the European Union, computer hardware (computers, tablets, smartphones, and so on) and computer products (software and so on) correspond, for the most part, to standardised goods that are easy to use, are not highly technical and are widely distributed in all types of stores at affordable prices. To that extent, they are everyday consumer goods intended for the general public (see judgment of 17 February 2017, GATEWIT, T‑351/14, not published, EU:T:2017:101, paragraph 52 and the case-law cited).

34      In the present case, in the light of the case-law cited in paragraphs 29 to 31 and 33 above, it must be stated that the Board of Appeal correctly noted, in essence, in paragraph 24 of the contested decision, that, in the global assessment of the likelihood of confusion, account should be taken of the point of view of the average consumer from the general public, who is reasonably well informed and reasonably observant and circumspect.

35      As regards, in the second place, the definition of the relevant public’s level of attention, it should be borne in mind that, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the goods or services in question, who is deemed to be 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 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).

36      With regard to the average consumer’s level of attention for goods in Class 9, it must be stated that, although the purchase price of some of the goods in that class may be relatively high and those goods may be subject to a period of use spanning several years, the majority of those goods are electronics aimed at the general public, which, nowadays, are relatively inexpensive, have a relatively short lifespan and do not require any particular technical knowledge (see, to that effect, judgment of 5 December 2017, Xiaomi v EUIPO – Apple (MI PAD), T‑893/16, not published, EU:T:2017:868, paragraph 25).

37      In the present case, the goods concerned are generally used on a daily basis by the end consumer, their price is not relatively high and they do not require any particular technical knowledge (see, by analogy, judgment of 5 December 2017, MI PAD, T‑893/16, not published, EU:T:2017:868, paragraph 25).

38      Consequently, the Board of Appeal was fully entitled to find, in the light of the case-law cited in paragraphs 35 and 36 above, that the level of attention of the average consumer from the general public was higher in relation to the relevant goods than in relation to everyday consumer goods, without, however, being particularly high.

 Comparison of the signs

39      The Board of Appeal took the view, as is apparent from paragraphs 29 and 42 of the contested decision, that, since the marks at issue were word marks, it was immaterial whether the letter ‘k’ was depicted in upper or lower case, as word marks protected the word as such and not the written form of that word, and that, therefore, the signs were identical.

40      In that regard, it should be borne in mind that it is irrelevant whether the signs at issue are written in upper or lower case, since word marks that differ only by upper- or lower-case letters are deemed to be identical. According to settled case-law, a word mark is a mark composed entirely of letters, of words or of combinations of words, written in printed characters in normal font, without any specific figurative element. As a consequence, the protection which results from registration of a word mark relates to the word mentioned in the application for registration and not to the specific figurative or stylistic elements which that mark might have (see, to that effect, judgments of 16 September 2013, Müller-Boré & Partner v OHIM – Popp and Others (MBP), T‑338/09, not published, EU:T:2013:447, paragraph 54; of 27 February 2015, Bayer Intellectual Property v OHIM – Interhygiene (INTERFACE), T‑227/13, not published, EU:T:2015:120, paragraph 36; and of 29 April 2015, Chair Entertainment Group v OHIM – Libelle (SHADOW COMPLEX), T‑717/13, not published, EU:T:2015:242, paragraph 50).

41      In the present case, the two marks at issue are word marks. In the light of the case-law cited in paragraph 40 above, it is immaterial that the letter ‘k’ is depicted in upper case within the mark applied for. The protection which results from the registration of the earlier trade mark applies equally to its components represented in upper- or lower-case letters.

42      Consequently, it must be concluded, as the Board of Appeal did, that the signs are identical.

 Comparison of the goods

43      The Board of Appeal took the view that the ‘smart phones’ covered by the mark applied for in Class 9 were similar, at least to some extent, to the ‘computers’ covered by the earlier mark, which were also in Class 9, as those goods could have the same manufacturers, end users, distribution channels and intended purpose. It added that the differences in nature and purpose between computer devices and smart communications equipment had become increasingly less pronounced, as they functioned in a similar manner, were built in a similar way, could have identical or similar features and could have similar shapes and sizes. It inferred from this that the nature and purpose of those goods were similar. The Board of Appeal noted that, in the light of their similar features and purposes, the goods in question were interchangeable and therefore in competition with each other. It concluded that ‘smart phones’, which belonged to the broader category of ‘mobile phones’ covered by the mark applied for in Class 9, were similar, at least to some extent, to the category of ‘computers’, which were covered by the earlier mark and were also in Class 9, and that there was no need, therefore, to assess their similarity with the other goods covered by the earlier mark.

44      The applicant takes the view that the goods at issue are, after restriction of the list of goods, dissimilar. It considers that the goods covered by the earlier mark and those covered by the mark applied for have a different purpose, namely phoning, on the one hand, and computing, on the other.

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

46      According to settled case-law, in order to assess the similarity of the goods or services at issue, all the relevant factors relating to those goods or services must 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 or services concerned (see 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).

47      In the present case, the goods and services in question are, on the one hand, the goods covered by the mark applied for, namely ‘smart phones; mobile phones; wearable smart phones’ in Class 9 and, on the other hand, those covered by the earlier mark, namely the goods and services in Classes 9, 41 and 42 referred to in paragraph 6 above. As is apparent from paragraph 32 above, the Board of Appeal, in the same way as the Opposition Division, compared the goods covered by the mark applied for with the category of ‘computers’, including various software goods and computer hardware goods, covered by the earlier mark in Class 9.

48      In that regard, it should be observed that the ‘computers’ covered by the earlier mark in Class 9 are, in essence, electronic devices for the recording, processing and reproduction of data (see, to that effect, judgment of 13 October 2011, NEC Display Solutions Europe v OHIM – Nokia (NaViKey), T‑393/09, not published, EU:T:2011:593, paragraph 29). As is apparent, in essence, from paragraph 34 of the contested decision, their primary use is to process inputs from a user before providing an output to that user. For example, they may be used to browse the internet, run computer programs or access multimedia content.

49      As regards, in the first place, the ‘smart phones’ and ‘wearable smart phones’ covered by the mark applied for, which are also in Class 9, these are electronic audio-visual telecommunications devices equipped with advanced features in addition to making and receiving telephone calls, such as transmitting and recording data, web browsing, running applications or accessing multimedia content (see, to that effect, judgment of 13 October 2011, NaViKey, T‑393/09, not published, EU:T:2011:593, paragraph 29).

50      In the light of the characteristics of ‘computers’, on the one hand, and of ‘smart phones’ and ‘wearable smart phones’, on the other, it must be stated that, first, those goods have similarities as regards their nature and their intended purpose. Admittedly, as the applicant notes, the ‘computers’ covered by the earlier mark are for use in computing, whereas the primary function of the ‘smart phones’ and ‘wearable smart phones’ covered by the mark applied for is telephone communication. Nevertheless, in the light of the current state of technological development, it should be observed, as the Board of Appeal did, that the differences between those goods have become increasingly less pronounced. On the one hand, ‘computers’, ‘smart phones’ and ‘wearable smart phones’ are all electronic devices that function on the basis of an operating system, which run applications and are accessible via a display and a keyboard. Accordingly, those goods function and are built in a similar manner. On the other hand, ‘computers’, ‘smart phones’ and ‘wearable smart phones’ can all be used to access online services, communicate, whether or not via an internet connection, access multimedia content or use applications. Consequently, those goods have similar, if not identical, features.

51      Secondly, it should be noted that, in the light of their similar, if not identical, features and purposes, ‘computers’, on the one hand, and ‘smart phones’ and ‘wearable smart phones’, on the other, are in competition with each other. In that regard, it should be noted that, according to the case-law, in order for the goods to be regarded as being in competition, there must be an element of interchangeability between them (see, to that effect, judgments of 4 November 2003, Díaz v OHIM – Granjas Castelló (CASTILLO), T‑85/02, EU:T:2003:288, paragraph 35, and of 1 March 2005, Sergio Rossi v OHIM – Sissi Rossi (SISSI ROSSI), T‑169/03, EU:T:2005:72, paragraph 57). In the present case, it is sufficient to observe that ‘computers’, ‘smart phones’ and ‘wearable smart phones’ can all satisfy the same needs. Accordingly, it must be noted, as the Board of Appeal did, that consumers may buy ‘smart phones’ or ‘wearable smart phones’ as a substitute for ‘computers’, inasmuch as a vast majority of their functions overlap.

52      Thirdly, it is common ground between the parties that ‘smart phones’ and ‘wearable smart phones’ may have the same producers, users and distribution channels as ‘computers’.

53      In the second place, it should be observed that, on account of the state of technological development, the assessments made in paragraphs 50 to 52 above also apply to ‘mobile phones’. As is apparent from the case-law, it is a well-known fact that ‘mobile phones’ and ‘portable communication devices’ are small portable computers that enable their users, inter alia, to access the internet, store information and run programmes and applications (see, to that effect, judgment of 27 September 2016, Satkirit Holdings v EUIPO – Advanced Mailing Solutions (luvo), T‑449/15, not published, EU:T:2016:544, paragraph 29).

54      Regarding the applicant’s argument that, unlike ‘computers’, ‘smart phones’ require a subscription to a multi-year cellular or data plan contract, it should be noted that, first, ‘smart phones’ may, on account of their feature allowing access to the internet, be used outside any subscription to a multi-year cellular or data plan contract. Secondly, in the light of the growing interdependence between the markets for computer hardware and software and telecommunications services, there is an element of complementarity and therefore of similarity between those services and the devices that are used for telecommunications purposes, such as ‘mobile telephones’ or ‘computers’ (see, to that effect, judgment of 15 October 2018, CompuGroup Medical v EUIPO – Medion (life coins), T‑444/17, not published, EU:T:2018:681, paragraph 37).

55      It follows from the foregoing that, contrary to what the applicant claims, the goods at issue have at least an average degree of similarity.

 Global assessment of the likelihood of confusion

56      It is apparent from a combined reading of paragraphs 42, 43 and 47 of the contested decision that the Board of Appeal considered that the signs at issue were identical and that the goods were to some extent similar and that therefore, in the light of the principle of interdependence, a likelihood of confusion on the part of the relevant public was highly probable, even assuming that the level of attention of that public would be higher than that which it would display in relation to inexpensive everyday consumer goods.

57      The applicant considers that any possible likelihood of confusion is reduced by the nature of the goods and the circumstances under which purchasing decisions are made. The applicant takes the view that the goods covered by the mark applied for are expensive, feature-rich and require multi-year cellular or data plan contracts, with the result that careful deliberation is required on the part of consumers.

58      In that regard, it should be borne in mind that 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 marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

59      In the present case, as is apparent from the foregoing considerations, the signs are identical and the goods have at least an average degree of similarity. Consequently, in the light of the principle of interdependence referred to in paragraph 58 above, the Board of Appeal was justified in finding that there was a likelihood of confusion in the present case, despite the higher than normal level of attention that will be displayed by the relevant public.

60      Contrary to what the applicant submits, it should be noted that, first, as is apparent from paragraph 38 above, the level of attention of the relevant public will not be particularly high. Secondly, it has already been held that a high degree of attention on the part of the relevant public does not permit an automatic conclusion that there is no likelihood of confusion, since all the other factors must be taken into account (see, to that effect, judgment of 28 April 2016, Zehnder Group International v EUIPO – Stiebel Eltron (comfotherm), T‑267/14, not published, EU:T:2016:252, paragraph 72 and the case-law cited; judgment of 13 July 2017, Migros-Genossenschafts-Bund v EUIPO – Luigi Lavazza (CReMESPRESSO), T‑189/16, not published, EU:T:2017:488, paragraph 87). In that regard, it should be observed that, in the light of the identity of the signs at issue and the similarity between the goods at issue, the fact that the relevant public is made up of persons whose level of attention may be considered to be high is not sufficient to exclude the possibility that the relevant public might believe that the relevant goods come from the same undertaking or, as the case may be, from economically linked undertakings (see judgment of 1 July 2008, QUARTZ, T‑328/05, not published, EU:T:2008:238, paragraph 59 and the case-law cited).

61      It follows from the foregoing that the Board of Appeal did not make an error of assessment in finding that there was, in the present case, a likelihood of confusion on the part of the relevant public.

62      The applicant’s argument that the United States Patent and Trademark Office waived its refusal to register the applicant’s US trade mark after the restriction of the list of goods in the context of the administrative procedure cannot invalidate that conclusion. In that regard, it is sufficient to note that the EU trade mark system is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system (see judgment of 12 December 2013, Rivella International v OHIM, C‑445/12 P, EU:C:2013:826, paragraph 48 and the case-law cited). Consequently, the capacity of a sign to be registered as an EU trade mark must be assessed by reference only to the relevant EU rules. Neither EUIPO nor, as the case may be, the Courts of the European Union are bound by decisions adopted in any Member State, or in a third country, finding that that sign is capable of being registered as a national trade mark (see judgment of 25 March 2014, Deutsche Bank v OHIM (Leistung aus Leidenschaft), T‑539/11, not published, EU:T:2014:154, paragraph 53 and the case-law cited).

63      It follows from all of the foregoing that the single plea in law must be rejected.

64      In the light of all of the foregoing considerations, the action must be dismissed in its entirety.

 Costs

65      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs relating to the present proceedings, in accordance with the forms of order sought by EUIPO and the intervener. Furthermore, as regards the costs incurred by the intervener before the Board of Appeal, it is sufficient to note that, since the present judgment is dismissing the action brought against the contested decision, it is the operative part in the contested decision which continues to determine the costs in question (see, to that effect, judgment of 28 February 2019, Lotte v EUIPO – Générale Biscuit-Glico France (PEPERO original), T‑459/18, not published, EU:T:2019:119, paragraph 194).

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders LG Electronics, Inc., to pay the costs.

Delivered in open court in Luxembourg on 18 November 2020.

*      Language of the case: English.

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