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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

13 May 2020 (*)

(EU trade mark — Opposition proceedings — Application for EU word mark KENWELL — Earlier EU word mark KENWOOD — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑284/19,

Wonder Line, SL, established in Barcelona (Spain), represented by E. Manresa Medina and J. Manresa Medina, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by K. Kompari, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being:

De Longhi Benelux SA, established in Luxembourg (Luxembourg),

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 11 February 2019 (Case R 1351/2018-2), relating to opposition proceedings between De Longhi Benelux and Wonder Line,

THE GENERAL COURT (Sixth Chamber),

composed of A. Marcoulli, President, S. Frimodt Nielsen and R. Norkus (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 2 May 2019,

having regard to the response lodged at the Court Registry on 4 July 2019,

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 4 December 2014, the applicant, Wonder Line, SL, 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 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 KENWELL.

3        The goods in respect of which registration was sought are in Classes 7, 9, 11 and 21 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.

4        The application was published in the Community Trade Marks Bulletin on 13 January 2015.

5        On 13 April 2015, the other party to the proceedings before the Board of Appeal, De Longhi Benelux SA, filed a notice of opposition to registration of the mark applied for in respect of some of the goods in Classes 7 and 9 and all of the goods applied for in Class 11.

6        The opposition was based, inter alia, on the EU word mark KENWOOD, registered on 18 December 2002 under No 2 201 424 in respect of goods in classes 7, 9 and 11 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957. The opponent claimed that that mark enjoyed a reputation throughout the European Union.

7        The grounds relied on in support of the opposition were those referred to in Article 8(1)(b), Article 8(4) and Article 8(5) of Regulation No 207/2009 (now Article 8(1)(b), Article 8(4) and Article 8(5) of Regulation 2017/1001, respectively).

8        On 18 May 2018, pursuant to Article 8(1)(b) of Regulation 2017/1001 and on the basis of EU word mark KENWOOD registered under No 2 201 424 (‘the earlier mark’), the Opposition Division rejected the application for registration in respect of some of the goods in Classes 7 and 9 and all of the goods applied for in Class 11, namely:

–        Class 7: ‘Mills and crushing machines; Mixing machines; [machines]; Can opening machines; Machines for use in the processing of water; Liquid blenders [machines]; Dry ice machines; Kneaders [electric kitchen machines]; Kneading machines; Food preparation machines, electromechanical; Beverage preparation machines, electromechanical; Aerated water making apparatus; Mineral water making machines; Vegetable washers [machines]; Food whisks (Electric -); Whisks, electric, for household purposes; Beaters being electric appliances; Electric egg beaters; Beaters, electric; Milk centrifuges [machines]; Cylinders for use in the manufacture of chocolate; Meat cutters [electric machines] for household use; Pasta cutters [machines]; Meat cutters [electric machines]; Cheese slicers [machines]; Bread knives (Electric -); Butchers’ knives (Electric -); Kitchen knives (Electric -); Electric carving knives; Vegetable knives (Electric -); Cream/milk separators; Vegetable corers [machines]; Machines for use in making whipped cream [electric, kitchen]; Electric pasta makers for domestic use; Meat mincing machines [electric machines] for household use; Meat mincing machines [electric machines]; Macerating machines; Machines for slicing food [electric, kitchen]; Orange squeezing machines [electric]; Electric kitchen appliances for chopping, mixing, pressing; Electric blenders; Kitchen machines (Electric -) for food preparation [other than cooking]; Carbonating machines; Centrifugal machines for use with milk; Churns; Biscuit making machines; Churns [machines] for use in making butter; Hand implements (Electric -) for use in barbecue cooking; Electric kitchen tools; Liquidizers [kitchen machines]; Electric meat slicers for kitchen use; Electrical squeezers for fruit and vegetable; Fruit presses, electric, for household purposes; Salad drainers [machines]; Salad drainers [electric kitchen machines]; Beer (Apparatus for drawing up — under pressure); Cheese making machines; Fish paste making machines; Machines for making aerated beverages [electric]; Confectionery making machines; Machines for making orange juice [electric]; Fruit squeezing machines [electric]; Beverage making machines; Machines for making pasta; Butter machines; Aerated beverage-making machines; Dough dividing machines (Electric -); Ice cream packing machines; Vegetable cutting machines; Bread cutting machines; Machines for flaking dried fish meat (kezuri-bushi making machines); Machines for applying chocolate to nuts; Orange juice extracting machines [electric]; Coffee extracting machines; Juice extracting machines; Slicing machines (Electric -) for large scale food processing; Electric ice crushing machines; Dough kneading machines (Electric -); Grating machines for household use; Slicing machines (Electric -) for kitchen use; Peeling machines (Electric -) for use in the preparation of food; Sausage machines; Machines for applying chocolate to the centres of chocolates; Dough rounding machines (Electric -); Grating machines for vegetables; Machines for peeling vegetables; Bread moulding machines; Machines for mixing foodstuffs; Flour mill machines; Brewing machines; Sugar making machines; Grain mills [machines]; Mills for household purposes, other than hand-operated; Fruit grinders (Electric -); Grinders (Electric -) for food preparation; Kitchen grinders, electric; Power-operated coffee grinders; Pepper mills other than hand-operated; Spice grinders (Electric -); Coffee grinders, other than hand-operated; Blenders, electric, for household purposes; Kitchen tools [electric utensils]; Butchers saws [machines]; Power-operated meat grinders; Potato graders [machines]; Electric babies’ food processors; Food processors (Electric -) for domestic use; Food processors; Electric sausage stuffers; Electric food slicers; Electric graters; Polishing machines for rice or barley; Wine presses; Wine presses [machines]; Garlic presses (Electric -); Potato mashers [electric machines]; Mincers [electric] for household use; Electric vegetable peelers; Meat choppers [machines]; Vegetable peelers [machines]; Potato peelers [electric machines]; Electric fruit peelers; Peelers [electric machines]; mechanical mixing machines; rotating electrical machines’.

–        Class 9: ‘Measuring instruments’.

–        Class 11: ‘Smoke cooking units; Cooking appliances; Kitchen machines (Gas -) for cooking; Gas operated apparatus for cooking; Raclette sets; Cooking apparatus and installations; Kitchen machines (Electric -) for cooking; Electric egg cookers; Steaming apparatus (Electric -) for cooking; Electric apparatus for making beverages; Smoke generating apparatus for cooking; Industrial rice cookers; Appliances for smoking foodstuffs; Apparatus for heating foodstuffs; Installations for heating beverages; Gas cooking apparatus incorporating cooking grills; Apparatus for cooking out of doors; Egg cookers; Dough proving apparatus; Food warmers; Apparatus for keeping hot drinks warm; Roasting devices; Dough retarding apparatus; Thermoelectric apparatus for heating foodstuffs; Electric coffee percolators; Stew-pots (Electric -); Hot pots [electrically heated]; Electric casseroles; Ceramic briquettes for use in barbecue grills [non-flammable]; Food warming stands [heated]; Stands adapted for cookers; Barbecue apparatus; Barbecues; Electric hostess trays; Warming trays; Broiling pans; Electric rotisseries; Roasting jacks; Electric roasters; Domestic rotisseries [electric]; Meat broilers; Roasting spits [electric] for use with electricity; Rotisseries; Roasting spits [electric] for use with gas; Rice cookers; Framework of metal for ovens; Retarding cabinets for dough; Thermoelectric apparatus for heating beverages; Proving cabinets for dough; Heated trollies for keeping food warm; Electrical hot plates for food warming; Electric hotplates; Domestic plate warmers; Heaters, electric, for feeding bottles; Domestic baby bottle warmers [electric]; Bottle warmers; Electric plate warmers; Baby food warmers; Electric beverage heaters; Electric bottle heaters; Electric food warmers; Domestic baby food warmers [electric]; Tea warmers (Electric -); Baby bottle warmers; Electric water heaters for preparing beverages; Meat boilers; Hot water boilers for beverage making; Electric coffee urns; Electrical coffee pots incorporating percolators; Frying machines; Fondues [cooking apparatus]; Spits [cooking apparatus]; Milk sterilizers; Roasting spits; Roasting spits [electric] for use with barbecues; Spits [parts of cooking apparatus]; Bottle heaters; Electric dehydrators; Food dehydrators; Ice cream conservators; Gas and electric ranges; Cookers having vitreous enamelled surfaces; Crepe cookers; Cookers incorporating grills; Electric chocolate makers; Bread baking machines; Microwave ovens, not for experimental purposes; Gas ovens; Convection ovens; Japanese kitchen furnaces (kamado); Electric cooking ovens; Induction ovens; Commercial cooking ovens; Baking ovens [for household purposes]; Ovens; Cooking rings; Hibachis; Electric kettles; Kettles; Waffle irons, electric; Domestic deep fryers [electric]; Chip pans (Electric -); Electric deep fryers; Domestic frying pans [electric]; Expresso coffee machines; Electric tea makers; Electrically heated mugs; Installations for the roasting of cocoa; Installations for baking; Installations for cooking; Installations for heating foodstuffs; Installations for the roasting of nuts; Installations for tempering; Automatic installations for making coffee; Electric toaster ovens; Ovens utilising air frequency fields for cooking; Microwave ovens for domestic use; Microwave ovens; Microwave ovens for cooking; Japanese charcoal cooking stoves for household purposes (shichirin); Electric ovens; Domestic cooking ovens; Domestic ovens; Baking ovens; Ovens (Shaped fittings for -); Table top ovens; Electric indoor grills; Cooking grills; Electric outdoor grills; Electric grills; Charcoal grills; Gas grills; Electric bread cookers; Electrical serving pots; Steam cookers; Stockpots (Electric -); Pressure cooking saucepans, electric; Domestic autoclave pressure cookers [electric]; Electric rice cookers; Tea making machines; Popcorn makers; Ice cream makers; Cotton candy making machines; Kebab cooking machines; Machines for making ice cream; Appliances for cooking foodstuffs; Frying machines for food; Electric popcorn making machines; Home bread makers; Electric espresso machines; Electric heated urns; Waffle irons; Electric griddles; Griddles [electric cooking utensils]; Hobs; Grill heating plates; Glass plates [parts of stoves]; Multiple cooking plates; Inset cooking tops; Cooking hobs; Ceramic plates sold as parts of ovens; Ceramic plates sold as parts of stoves; Ceramic plates sold as parts of hobs; Hot plates for cooking; Inset hot plates; Hot plates [for household purposes]; Plates [parts of ovens]; Electrically heated roasting skewers; Oven fittings made of fireclay; Lava rocks for use in barbecue grills; Domestic coffee percolators [electric]; Pasteurisers; Electric broilers; Electric cooking utensils; Tea urns (Electric -); Smoke drying units; Smoke baking units; Cooking units; Electric toasters; Cooking tunnels; Fruit roasters; Toasters; Roasters; Hot sandwich toasters; Electric sandwich toasters; Domestic bread toasters [electric]; Electric coffee roasters; Malt roasters; Coffee roasters; Tea kettles [electric]; Food dryers; Electric broiling pans; Pans (Electric cooking -); Electric skillets; Electric sandwich makers; Sandwich makers [toasters]; Electric yoghurt makers; Electric woks; Heated cabinets for foodstuffs; Heated display cabinets; Electric vegetable steamer; Electric food steamer; Electric rice steamer’.

9        On 13 July 2018, the applicant filed an appeal against the Opposition Division’s decision.

10      By decision of 11 February 2019 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal.

11      As regards, first, the relevant public, the Board of Appeal took the view that this was made up of the general public and business customers with specific professional knowledge or expertise. The degree of attention ranged from average to high.

12      As regards, second, the comparison of the goods, the Board of Appeal took the view that the goods in question were partly identical, partly similar and partly similar to a low degree.

13      As regards, third, the signs at issue, the Board of Appeal found that they were visually and phonetically similar to at least an average degree, but that no conclusion could be drawn from their conceptual comparison. Lastly, bearing in mind, in particular, the fact that the signs were visually and phonetically similar to at least an average degree and the lack of conceptual dissimilarities found between them, as well as the fact that the competing goods were either identical or similar to a degree ranging from low to average, the Board concluded that there was a likelihood of confusion, including a likelihood of association, within the meaning of Article 8(1)(b) of Regulation 2017/1001.

 Forms of order sought

14      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

15      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

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

17      The applicant alleges, in essence, that the Board of Appeal erred in finding that the signs at issue were similar and that, accordingly, there was a likelihood of confusion.

18      EUIPO disputes the applicant’s claims.

19      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.

20      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 overall, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

21      For the 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). In addition, 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 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

22      Where the protection of the earlier mark extends to the whole of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).

23      It is in the light of those considerations that it must be assessed whether the Board of Appeal was right in finding that there was a likelihood of confusion in the present case.

 The relevant territory and the relevant public

24      According to case-law, in the overall assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

25      The Board of Appeal found that the relevant territory was that of the European Union.

26      As regards the relevant public, the Board of Appeal stated that this was made up of the general public and business customers with specific professional knowledge or expertise. Since the goods are partly specialist ones, the degree of attention of the relevant public varies from average to high.

27      The applicant does not dispute those assessments of the Board of Appeal. Moreover, there is no evidence in the file capable of casting doubt on those assessments.

 Comparison of the goods

28      As regards the comparison of the goods in question, the Board of Appeal agreed with the Opposition Division’s conclusion that the goods covered by the marks at issue were ‘partly identical, partly similar and partly similar to a low degree’.

29      The applicant does not dispute those assessments of the Board of Appeal. Moreover, there is no evidence in the file capable of casting doubt on those assessments.

 Comparison of the signs

30      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by those signs, bearing in mind, inter alia, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of the 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).

31      In general, two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (judgments of 23 October 2002, Matratzen Concord v OHIM — Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30, and of 8 September 2010, Quinta do Portal v OHIM — Vallegre (PORTO ALEGRE), T‑369/09, not published, EU:T:2010:362, paragraph 21).

32      In the present case, the marks at issue are the earlier word mark KENWOOD and the word mark KENWELL, the registration of which is sought.

33      As regards the comparison of the marks at issue, the Board of Appeal found, in essence, in paragraph 28 et seq. of the contested decision, that the part ‘KEN’, common to both signs, had no meaning in relation to the goods at issue and should therefore be considered distinctive. The Board of Appeal concluded that the marks at issue were visually and phonetically similar at least to an average degree.

34      Conceptually, the Board of Appeal held that the word elements ‘KENWELL’ and ‘KENWOOD’ had no meaning overall and that, as a result, no conclusion could be drawn from their conceptual comparison. The English-speaking public in the European Union would understand the respective meanings of the elements ‘WELL’ and ‘WOOD’, which are different. The Board of Appeal stated, however, that those meanings were not sufficient for it to be found that the signs are conceptually dissimilar. It would be artificial to split the signs into two parts since the combinations of the element ‘KEN’ with the words ‘WELL’ and ‘WOOD’ are meaningless. In any event, a significant part of the public in the European Union would not perceive any meaning.

35      The applicant generally contests those assessments and claims that the marks at issue are visually, phonetically and conceptually different. It maintains that the double consonants ‘LL’ in the mark applied for and ‘OO’ in the earlier mark make it impossible to confuse those marks visually.

36      As regards the phonetic comparison, the applicant, while admitting that there are some similarities between the marks at issue, claims that those similarities are not sufficient to result in a likelihood of confusion on the part of the consumer. The applicant argues that the relevant public will pronounce the two syllables ‘KEN’ and ‘WOOD’ of the earlier mark and ‘KEN’ and ‘WELL’ of the mark applied for and that, as a result, the marks are not phonetically similar overall.

37      As for the conceptual comparison of the marks, the applicant notes the difference in meaning between the words ‘WOOD’ and ‘WELL’, which the relevant public is aware of and will not forget, and concludes that there is therefore also a conceptual difference between the marks at issue.

38      EUIPO disputes the applicant’s arguments.

39      In the first place, as regards the visual comparison of the marks at issue, it must be noted that each of those marks contains seven letters and therefore are identical in length. Similarly, they share the same first four letters ‘K’, ‘E’, ‘N’, and ‘W’, which are in the same order, and both have a double letter among their remaining three letters, namely a double ‘O’ followed by a ‘D’ in the case of the earlier mark and an ‘E’ followed by a double ‘L’ in the case of the mark applied for.

40      Accordingly, the Board of Appeal was right to find, in paragraph 30 of the contested decision, that there was at least an average degree of visual similarity between the marks in question.

41      In the second place, as regards the phonetic comparison of the marks at issue, it should be noted that the earlier mark is pronounced ‘KEN-WOOD’, while the mark applied for is pronounced ‘KEN-WELL’. Therefore, the first syllable of the marks at issue is phonetically identical, the second syllable starts with the same consonant ‘W’, and the two marks have the same phonetic length.

42      It follows that the Board of Appeal was right to find, in paragraph 31 of the contested decision, that there was at least an average degree of phonetic similarity between the marks at issue.

43      In the third place, as regards the conceptual comparison of the marks at issue, it should be noted that those marks are composed of the element ‘KEN’ combined, respectively, with the element ‘WOOD’ in the case of the earlier mark, and ‘WELL’ in the case of the mark applied for.

44      It is apparent from the Board of Appeal’s file, and not disputed by the parties, that the element ‘KEN’, which is common to both marks, can, according to the Collins dictionary, mean in English ‘range of knowledge or perception’. The English-speaking part of the relevant public will therefore understand the meaning of that element, just as it will understand the difference between the respective meanings of the elements ‘WOOD’ and ‘WELL’, which are also part of the vocabulary of the English language, while the rest of the relevant public will not perceive the semantic content of those three elements.

45      Nevertheless, for the English-speaking public, the word elements ‘KENWOOD’ and ‘KENWELL’, which are unusual in their structure, are not well-known expressions in English.

46      As a result, the Board of Appeal was right to find, in paragraph 32 of the contested decision, that the marks at issue had no meaning overall and that no conclusion could be drawn from their conceptual comparison.

47      It follows from all the foregoing that the marks at issue must be considered to be similar overall to at least an average degree.

 The likelihood of confusion

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

49      The Board of Appeal found, in paragraphs 34 to 37 of the contested decision, that the visual and phonetic differences were not sufficient to offset the overall impression of similarity between the marks. In particular it took the view that, given that the marks are visually and phonetically similar to at least an average degree and that there is a lack of conceptual dissimilarities between them, as well as the fact that the goods in question are either identical or similar to a degree ranging from low to average, there was a likelihood of confusion, including a likelihood of association, within the meaning of Article 8(1)(b) of Regulation 2017/1001, on the part of the relevant public. In addition, it considered that the fact that part of the relevant public’s level of attention was above average was insufficient to rule out any likelihood of confusion.

50      The applicant contests that finding, stating, in essence, that the marks at issue are visually, phonetically and conceptually different. The applicant also maintains that the Board of Appeal failed properly to take into account the evidence it presented, during the proceedings before EUIPO, demonstrating that several marks containing the element ‘KEN’ had been registered as EU trade marks for goods in Classes 7, 9 and 11.

51      The Board of Appeal’s finding is correct.

52      As was stated in paragraphs 28 and 29 above, the goods covered by the marks at issue are ‘partly identical, partly similar and partly similar to a low degree’. It follows that, in the present case, in order to find that there is no likelihood of confusion, that similarity and identity must be offset by a high degree of difference between the marks. However, as was concluded in paragraph 47 above, the marks at issue are similar overall to at least an average degree. Consequently, the Board of Appeal was right to find, in paragraph 36 of the contested decision, that there was a likelihood of confusion between the signs at issue.

53      As regards the applicant’s argument that the Board of Appeal did not take into consideration earlier EUIPO decisions authorising the registration of marks including the element ‘KEN’, it must be borne in mind, first, that it is incumbent on the Boards of Appeal, when deciding to take a different view from that adopted in decisions previously taken in respect of similar applications relied on before them, to provide an explicit statement of their reasoning for departing from those decisions (see judgment of 14 February 2019, Bayer Intellectual Property v EUIPO (Representation of a heart), T‑123/18, EU:T:2019:95, paragraph 35 and the case-law cited).

54      Second, decisions concerning the registration of a sign as an EU trade mark taken by the Boards of Appeal pursuant to Regulation 2017/1001 fall within the scope of circumscribed powers and are not a matter of discretion and, accordingly, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union. As a result, the Boards of Appeal cannot be bound by the previous decisions of EUIPO (see judgment of 14 February 2019, Representation of a heart, T‑123/18, EU:T:2019:95, paragraph 36 and the case-law cited).

55      In any event, in the present case, the reasoning provided by the Board of Appeal explains why it could not adopt the same solution as that adopted in respect of the marks relied on by the applicant.

56      In the light of all of the foregoing, the single plea in law must be rejected and the action dismissed in its entirety.

 Costs

57      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Wonder Line, SL to pay the costs.

Delivered in open court in Luxembourg on 13 May 2020.

*      Language of the case: English.

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