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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

16 December 2020 (*)

(EU trade mark – Opposition proceedings – Application for the EU word mark HELIX ELIXIR – Earlier EU word mark HELIXOR – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))

In Case T‑883/19,

Gustopharma Consumer Health, SL, established in Madrid (Spain), represented by A. Gómez López and J. Mora Cortés, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by L. Rampini 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

Helixor Heilmittel GmbH, established in Rosenfeld (Germany), represented by J. Klink, lawyer,

ACTION brought against the decision of the First Board of Appeal of EUIPO of 23 October 2019 (Case R 100/2019-1) relating to opposition proceedings between Helixor Heilmittel and Gustopharma Consumer Health,

THE GENERAL COURT (Sixth Chamber),

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

Registrar: J. Pichon, Administrator,

having regard to the application lodged at the Court Registry on 27 December 2019,

having regard to the response of EUIPO lodged at the Court Registry on 31 March 2020,

having regard to the response of the intervener lodged at the Court Registry on 2 March 2020,

further to the hearing on 14 October 2020,

gives the following

Judgment

 Background to the dispute

1        On 25 January 2016, Home Shopping International, SL, the predecessor in title to the applicant, Gustopharma Consumer Health, 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 of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2        The trade mark in respect of which registration was sought is the word sign HELIX ELIXIR.

3        The goods in respect of which registration was sought are in Class 5 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: ‘Health food supplements made principally of vitamins; Nutritional supplements; Food supplements; Dietary supplements consisting of vitamins’.

4        The trade mark application was published in Community Trade Marks Bulletin No 2016/019 of 29 January 2016.

5        On 26 April 2016, the intervener, Helixor Heilmittel GmbH, filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001), to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based, inter alia, on the earlier EU word mark HELIXOR, which was registered on 25 October 2011 under the number 9 985 557 in respect of goods in Class 5 corresponding to the following description: ‘Pharmaceutical preparations and medicines, in particular for the treatment for leukaemia and cancer; veterinary preparations’.

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

8        On 18 December 2018, the Opposition Division upheld the opposition for all of the contested goods on the ground that there was a likelihood of confusion.

9        On 15 January 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 23 October 2019 (‘the contested decision’), the First Board of Appeal of EUIPO dismissed the appeal.

11      In essence, the Board of Appeal found that, given the degree of similarity between the signs and between the goods, the normal inherent distinctiveness of the earlier mark and the principle according to which consumers must rely on their imperfect recollection of the marks, there was a likelihood of confusion on the part of the relevant public, even though that public’s level of attention was deemed to be higher than average.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        set aside the contested decision on the ground of incorrect application of Article 8(l)(b) of Regulation 2017/1001 and find that there is no likelihood of confusion between the marks at issue;

–        grant the application for registration;

–        order EUIPO and the intervener to pay the costs.

13      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

14      The intervener claims that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

15      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It submits that the Board of Appeal made a number of errors in its assessment of the likelihood of confusion.

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

 Determination of the applicable substantive law

17      Account being taken of the date on which the application for registration in question was filed, namely 25 January 2016, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). As a result, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decision and by the parties to Article 8(1)(b) of Regulation 2017/1001 should be understood as pertaining to Article 8(1)(b) of Regulation No 207/2009, which has an identical wording.

18      Under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the 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 line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see, to that effect, 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 No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

21      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 207/2009 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T–82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).

 The relevant public

22      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (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).

23      In the present case, the Board of Appeal found that the Slovak-speaking public could be regarded as the relevant public within the European Union for the purposes of assessing the likelihood of confusion (see paragraphs 19 and 25 of the contested decision). The Board of Appeal also stated that the goods in question in Class 5 were targeted at, on the one hand, medical professionals who are responsible for prescribing and administering them, and, on the other, patients as end users (see paragraph 22 of the contested decision).

24      As regards the level of attention of those two groups composing the relevant public, the Board of Appeal reproduced the previous findings of the Opposition Division. First of all, the Board of Appeal noted that, due to their professional experience and qualification, medical professionals were deemed to have a particularly high degree of awareness and attention. The Board of Appeal also stated that, as regards products related to the health of consumers, the level of attention of the average consumer was also relatively high, including with respect to pharmaceutical products sold over the counter, since those products were likely to affect their state of health; in its view, the same applied to the various food supplements covered by the mark applied for (see paragraph 23 of the contested decision).

25      Furthermore, the Board of Appeal stated that, when the relevant public includes consumer groups with different levels of attention, it is necessary to take into account the part of the public characterised by the lowest level of attention. Therefore, the Board of Appeal took the view that it was appropriate to assess the likelihood of confusion by focusing on the perspective of the average consumer, whose level of attention with respect to the various categories of goods in question was certainly higher than average, but nevertheless could not be deemed to be as high as that of a medical professional (see paragraph 24 of the contested decision).

26      In that regard, the applicant submits that the statement that medical professionals have a high level of attention when prescribing medicines also applies to the average consumer, regardless of whether or not those products are issued on prescription, since those products affect their state of health. Consequently, the relevant public’s level of attention is very high overall.

27      EUIPO and the intervener dispute those arguments.

28      First of all, it should be recalled that, when the goods in question are medicines or pharmaceutical products, the relevant public is composed of medical professionals, on the one hand, and patients, as the end consumers, on the other (see judgment of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 25 and the case-law cited).

29      Next, according to the case-law, medical professionals have a high level of attentiveness when prescribing medicines. Moreover, with regard to end consumers, it is apparent from the case-law that in cases where pharmaceutical products are sold without prescription, it must be assumed that those goods will be of interest to consumers who are deemed to be reasonably well informed and reasonably observant and circumspect, since those goods affect their state of health, and that those consumers are less likely to confuse different categories of goods. Furthermore, even assuming that a medical prescription is mandatory, consumers are likely to have a high level of attentiveness upon prescription of the goods in question in the light of the fact that those goods are pharmaceutical products. Thus, medicines, whether or not issued on prescription, can be regarded as receiving a heightened level of attentiveness by consumers who are reasonably well informed and reasonably observant and circumspect (see judgment of 20 September 2018, UROAKUT, T‑266/17, EU:T:2018:569, paragraph 26 and the case-law cited).

30      Those considerations are also applicable where the goods in question are dietetic products in general and dietary supplements, which strictly speaking are not medicines, but nevertheless constitute goods in the field of health, since in general they are intended to improve health, which may be regarded as products to which consumers, who are reasonably well informed and reasonably observant and circumspect, pay a high level of attention (see judgment of 20 September 2018, UROAKUT, T‑266/17, EU:T:2018:569, paragraph 28 and the case-law cited).

31      In the present case, the Board of Appeal did not depart from the abovementioned reasoning, by stating, first, that the level of attention of medical professionals was ‘particularly high’ due to their professional experience and qualification, and, second, that the level of attention of the average consumer was also ‘relatively high’, given the fact that the products in question were health-related.

32      Moreover, it cannot be deduced from that reasoning or from the findings of the Board of Appeal that the level of attention of the different groups composing the relevant public can be aligned with the highest level of attention, in the present case that of medical professionals. As the Board of Appeal rightly stated, where the relevant public is composed of consumer groups with different levels of attention, it is necessary, for the purposes of assessing the likelihood of confusion, to take into account the part of the public characterised by the lowest level of attention, in the present case that of the average consumer (see, 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).

33      It follows from the foregoing that the Board of Appeal was right to take the view that it was appropriate to assess the likelihood of confusion by focusing on the perspective of the average consumer, whose level of attention with respect to the various categories of goods in question was certainly higher than average, but nevertheless could not be deemed to be as high as that of a medical professional.

 The comparison of the goods

34      According to settled case-law, in assessing the similarity of the goods or services in question, all the relevant factors relating to those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended 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 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).

35      In the present case, the Board of Appeal found that the various food, nutritional and dietary supplements covered by the mark applied for were similar to the goods in the general category ‘pharmaceutical preparations’ covered by the earlier mark, which includes, in particular but not exclusively, pharmaceuticals for the treatment of leukaemia and cancer (see paragraphs 26 and 29 of the contested decision).

36      In response to the applicant, which invoked before it differences between the goods actually marketed by the parties, the Board of Appeal stated, first of all, that, since the earlier mark was not under any proof of use requirement, the likelihood of confusion could be assessed on the basis of the registered specification. Therefore, as the earlier mark covered the broad category ‘pharmaceutical preparations and medicines’ and the phrase ‘in particular’ indicated that those specific medicines ‘for the treatment for leukaemia and cancer’ were given as examples, the applicant could not rely on certain potential or actual uses of those goods in order to invoke a degree of similarity alleged to be lower than that referred to in the decision of the Opposition Division. In any event, the Board of Appeal stated that nutritional supplements and pharmaceutical preparations for cancer treatment had been found to be similar in the past (see paragraphs 27 and 28 of the contested decision).

37      The applicant takes issue with that analysis, and invokes once more the differences between pharmaceutical preparations and medicines for the treatment of leukaemia or cancer and nutritional and health supplements. According to the applicant, those different products do not have the same channels of distribution, are not supplied by the same traders, are not directed at the same public, and do not have the same therapeutic indications.

38      The applicant states in that regard that its products contain a natural nutrient for the joints, based on Nutrelix, a protein powder snail extract containing allantoin, which is combined with other ingredients and natural nutrients such as Vitamin C, turmeric and boswellia that contribute to the normal functioning of the joints.

39      EUIPO and the intervener dispute those arguments.

40      In the present case, it must be noted, as EUIPO and the intervener rightly submit, that the goods covered by the earlier mark are not limited to pharmaceutical preparations and medicines for the treatment of leukaemia or cancer. As has already been stated in the contested decision, the list of goods protected by the earlier mark provides pharmaceutical preparations and medicines concerning such therapeutic indications only as examples and not in an exhaustive manner. It must be recalled that, in order to assess the similarity of the goods in question for the purposes of Article 8(1)(b) of Regulation No 207/2009, account should be taken of the group of goods protected by the marks at issue, rather than of the goods actually marketed under those marks (see, to that effect, judgment of 25 September 2018, Grendene v EUIPO – Hipanema (HIPANEMA), T‑435/17, not published, EU:T:2018:596, paragraph 35 and the case-law cited).

41      In addition, while the food supplements and nutritional supplements covered by the mark applied for are not specifically aimed at treating, alleviating or curing illnesses, it is nevertheless true that they also contribute, like the pharmaceutical preparations and medicines covered by the earlier mark, to promoting health and that they can be administered and used, in a combined or supplementary manner, to different therapeutic ends (see, to that effect, judgment of 20 November 2019, Werner v EUIPO – Merck (fLORAMED), T‑695/18, not published, EU:T:2019:794, paragraph 34). This is the case in particular for health food supplements made principally of vitamins or dietary supplements consisting of vitamins, included in the list of goods covered by the mark applied for, which are designed to respond to special dietary needs, with the aim of treating or preventing illnesses or of strengthening the organism. Moreover, as regards their nature, the goods in question are similar, since they are all chemical compounds and are regarded by the consumers as products belonging to the same general category of health care products.

42      In addition, in response to the applicant’s argument alleging that the different goods do not have the same distribution channels, it must be noted that dietary supplements, regardless of whether or not for medical use, are generally produced by the same pharmaceutical companies and distributed through the same distribution channels, in particular pharmacies (see, to that effect, judgment of 20 November 2019, fLORAMED, T‑695/18, not published, EU:T:2019:794, paragraph 32).

43      It follows from the foregoing that the Board of Appeal was right to take the view that the various food, nutritional and dietary supplements covered by the mark applied for were similar to the goods belonging to the general category ‘pharmaceutical preparations’ covered by the earlier mark.

 The comparison of the signs

44      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 the signs, bearing in mind, in particular, 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 that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse 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).

45      For the purposes of determining the distinctive character of an element of a mark, an assessment must be made of 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. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 20 September 2018, UROAKUT, T‑266/17, EU:T:2018:569, paragraph 35 and the case-law cited).

 The visual comparison

46      Having stated, first, that the sign applied for consisted of two word elements, ‘helix’ and ‘elixir’, whereas the earlier sign consisted of only one, ‘helixor’, the Board of Appeal noted, second, that the first word element of the sign applied for differed from the word element of the earlier sign, which ended in the additional group of letters ‘or’. Furthermore, it also stated that the signs at issue coincided in the initial group of letters, ‘helix’, which formed the first word element of the sign applied for. Overall, notwithstanding the visual differences, the Board of Appeal took the view that the signs coincided in their first five letters, the earlier sign being almost entirely incorporated in the initial word element of the sign applied for. This partial incorporation of the earlier sign in the first five letters of the initial word element of the sign applied for, which, according to the Board of Appeal, was most likely to attract the attention of consumers, enabled the Board of Appeal to conclude that there was an average degree of visual similarity (see paragraphs 34 to 39 of the contested decision).

47      In that regard, the applicant submits that that assessment is incorrect because it was not carried out by taking into account the signs at issue as a whole, but solely of some of their individual elements. In particular, the Board of Appeal took into account only the first part of the earlier sign and ignored the fact that the sign applied for is composed of two words. According to the applicant, while it is true that the signs at issue begin with the same group of letters, ‘helix’, there is no overlap between those signs. The earlier sign is not incorporated in the sign applied for, given that, on the basis of an overall assessment, consumers will not focus their attention on the term ‘helix’ separately but will regard the earlier sign as being composed of a single word, ‘helixor’, whereas the sign applied for will be perceived as being composed of two different words, ‘helix’ and ‘elixir’. In the applicant’s view, there are therefore more differences than similarities between the signs at issue; moreover, the similarities are not relevant.

48      EUIPO and the intervener dispute those arguments.

49      It must be noted that, contrary to what the applicant submits, the Board of Appeal carried out the visual comparison in the light of an overall assessment which took account of the differences and similarities between the signs at issue. It was with a view to both that the Board of Appeal concluded that there was an average degree of visual similarity.

50      In particular, in the light of paragraph 34 of the contested decision, which expressly mentions that difference, the applicant is wrong to assert that the Board of Appeal ignored the fact that the earlier sign was composed of one word element, whereas the sign applied for consisted of two. The Board of Appeal also stated that the signs differed at the level of the added word element, ‘elixir’, in the sign applied for and the final letters, ‘o’ and ‘r’, in the earlier sign.

51      Moreover, the Board of Appeal was right to find that the signs at issue coincided in the initial group of letters, ‘helix’, which, in addition, is the first of the two word elements of the sign applied for. Contrary to what the applicant asserts, such a similarity between the signs at issue is not irrelevant.

52      It must be recalled that, in general terms, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, aural and conceptual aspects (see judgment of 10 December 2008, MIP Metro v OHIM – Metronia (METRONIA), T‑290/07, not published, EU:T:2008:562, paragraph 41 and the case-law cited). In the present case, as EUIPO rightly submits, the fact that the first word element, ‘helix’, of the sign applied for, HELIX ELIXIR, coincides with the first five letters of the earlier sign, HELIXOR, can effectively be regarded as a relevant factor with respect to the visual similarity of the signs at issue. Those signs share a sequence of five letters placed in the same order at the beginning of the signs at issue, and those identical letters represent, first, the greater part of the seven letters of the earlier sign and, second, the entirety of the first of the two word elements of the sign applied for.

53      As the Board of Appeal recalls, the consumer normally attaches more importance to the first part of words, with the result that the first element or its first letters are likely to have a greater impact than the rest of the sign (see, to that effect, judgment of 24 October 2019, MSI Svetovanje v EUIPO – Industrial Farmaceutica Cantabria (nume), T‑41/19, not published, EU:T:2019:764, paragraph 68 and the case-law cited).

54      In those circumstances, after establishing, with good reason, that the first word element, ‘helix’, was the element that was likely to have the greatest impact in the sign applied for and that it was similar to the beginning of the earlier sign, the Board of Appeal rightly held that the signs at issue were visually similar.  

55      It follows from the foregoing that the Board of Appeal had good reason to conclude that there was an average degree of visual similarity between the signs at issue.

 The phonetic comparison

56      As regards the phonetic comparison of the signs, the Board of Appeal stated that the earlier sign was pronounced in three syllables, ‘he’, ‘lix’ and ‘or’, whereas the first element of the sign applied for was pronounced in two syllables, ‘he’ and ‘lix’. It also noted that, in both cases, the accent was on the same syllable, ‘he’, since, in Slovak, the accent was almost always placed on the first syllable of a word. The Board of Appeal then found that the first two syllables of the signs at issue were pronounced in the same manner (see paragraph 40 of the contested decision).

57      Next, the Board of Appeal stated, first, that the last syllable, ‘or,’ of the earlier sign had no counterpart in the sign applied for, and, second, that the second word element of the sign applied for was pronounced, in Slovak, in three syllables, ‘e’, ‘li’ and ‘xir’. As regards the latter point, it stated that, if consumers perceived the second word element of the sign applied for as entirely descriptive, they might be tempted to omit it in everyday communication. The Board of Appeal also stated that, if the second element were not perceived as entirely descriptive, then it being pronounced would introduce an additional element of phonetic differentiation (see paragraphs 40 and 41 of the contested decision).

58      Overall, notwithstanding the abovementioned phonetic differences, the Board of Appeal then found that the signs at issue partially coincided at the level of the first two syllables of their word elements ‘helix’ and ‘helixor’. That partial overlap in the first two syllables of the initial elements of the signs at issue, which, according to the Board of Appeal, were most likely to attract the attention of consumers, enabled it to conclude that there was an average degree of phonetic similarity (see paragraphs 42 and 43 of the contested decision).

59      In that regard, the applicant criticises the Board of Appeal for having compared only the beginning of the signs at issue, without taking into consideration the obvious differences, as regards the number of syllables and their order, as a result of their pronunciation: ‘he’, ‘lix’ and ‘or’ for the earlier sign, and ‘he’ and ‘lix’ followed by ‘eli’ and ‘xir’ for the sign applied for. Consumers in the European Union would therefore pronounce the earlier sign differently from the sign applied for. In addition, according to the applicant, the fact that a string of letters coincides is not sufficient in itself for a finding of similarity, since the relevant public compares the signs as a whole and does not artificially dissect them. In the present case, the differences, and in particular the phonetic differentiation linked to the pronunciation of the second element of the sign applied for, ‘elixir’, which is not descriptive of the goods in question but at most merely allusive, are more important than the similarities referred to by the Board of Appeal.

60      EUIPO and the intervener dispute those arguments.

61      It must be noted that, contrary to what the applicant asserts, the Board of Appeal carried out the phonetic comparison in the light of an overall assessment which took account of the differences and similarities between the signs at issue. It was with a view to both that the Board of Appeal concluded that there was an average degree of phonetic similarity.

62      In particular, the Board of Appeal cannot be criticised for having focused its attention solely on the beginning of the signs at issue or for having ignored the phonetic differentiation which resulted from the pronunciation of the second word element, ‘elixir’, of the mark applied for.

63      On that latter point, contrary to the applicant's assertion, the Board of Appeal did not state in the contested decision that the relevant public would never pronounce ‘elixir’ to refer orally to the mark applied for. The Board of Appeal merely referred to the possibility that, if consumers perceived that element as entirely descriptive, they might be tempted to omit it in everyday communication. Such a possibility is nevertheless referred to only as a hypothesis and the Board of Appeal equally bases its reasoning on the opposite hypothesis, according to which the second word element, ‘elixir’, would be pronounced by the relevant public, in which case it would indeed constitute an element of phonetic differentiation.

64      In those circumstances, the Board of Appeal was right to take the view that, despite the differences in respect of, in particular, the number of syllables and their order, the signs at issue were phonetically similar to an average degree, since their first two syllables, which corresponded to the initial part of the signs at issue, were pronounced in the same manner by the relevant Slovak public and the earlier sign was almost entirely incorporated in the sign applied for (see, to that effect, judgment of 10 December 2008, METRONIA, T‑290/07, not published, EU:T:2008:562, paragraph 50 and the case-law cited).

 The conceptual comparison

65      As regards the conceptual comparison, the Board of Appeal took the view, first, that the Slovak-speaking public would not find any meaning in the word elements ‘helix’ and ‘helixor’ of the signs at issue, and, second, that that public would understand that the term ‘elixir’ of the sign applied for had the same meaning as in English, namely, that it designated ‘a substance with (an almost magical) power to cure, improve, or preserve something, for instance to prolong (indefinitely) life and well-being’. The Board of Appeal then concluded that the signs at issue were not comparable for the Slovak-speaking public and that the additional element ‘elixir’ of the sign applied for was not sufficient to introduce a clear conceptual difference between those signs (see paragraphs 44 to 53 of the contested decision).

66      There is no reason to call into question these findings, which, moreover, are not disputed by the applicant, as has been confirmed at the hearing.

 The likelihood of confusion

67      The 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 the similarity of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

68      In the present case, following a global assessment of the likelihood of confusion, the Board of Appeal found that, given the degree of similarity between the signs and between the goods, the normal inherent distinctiveness of the earlier mark and the principle according to which consumers must rely on their imperfect recollection of the marks, there was such a likelihood on the part of the relevant public, even though that public’s level of attention was deemed to be higher than average (see paragraphs 65 to 70 of the contested decision).

69      The applicant disputes such an analysis, by asserting, inter alia, that the goods in question are different and that there is no visual or phonetic similarity between the signs at issue. As a result, the relevant public will not be led to believe that the goods in question come from economically linked undertakings.  

70      EUIPO and the intervener dispute those arguments.

71      In the light of all the foregoing considerations, and since the Board of Appeal had good reason to take the view that the inherent distinctiveness of the earlier mark was normal, as the earlier mark had no meaning for the goods in question (see paragraph 57 of the contested decision), it must be concluded that the Board of Appeal correctly found, on the basis of an overall assessment taking into account a level of attention on the part of the relevant public that was at the very least high, that there was a likelihood of confusion between the signs at issue for all the goods in question, on the ground, in particular, that ‘food supplements’ were similar to the broad category of ‘pharmaceutical preparations and medicines’ and that those signs were visually and phonetically similar to an average degree.

72      Consequently, the applicant’s single plea in law should be rejected and the action dismissed in its entirety, without there being a need to rule on the admissibility of the applicant’s third head of claim for the granting of the application for registration.

 Costs

73      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 forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Gustopharma Consumer Health, SL, to pay the costs.

Delivered in open court in Luxembourg on 16 December 2020.

*      Language of the case: English.

© European Union
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