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

JUDGMENT OF THE GENERAL COURT (Second Chamber)

16 June 2021 (*)

(EU trade mark – Invalidity proceedings – EU figurative mark Halloumi χαλλούμι Vermion grill cheese M BELAS PREMIUM GREEK DAIRY SINCE 1927 – Earlier national certification word marks ΧΑΛΛΟΥΜΙ HALLOUMI – Bad faith – Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001) – Relative ground for invalidity – Article 53(1)(a) and Article 8(1)(b) and (5) of Regulation No 207/2009 (now Article 60(1)(a) and Article 8(1)(b) and (5) of Regulation 2017/1001))

In Joined Cases T‑281/19 and T‑351/19,

Republic of Cyprus, represented by S. Malynicz QC, S. Baran, Barrister, and V. Marsland, Solicitor,

applicant,

v

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

defendant,

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

Filotas Bellas & Yios AE, established in Alexandreia Imathias (Greece),

ACTIONS brought against the decisions of the Fourth Board of Appeal of EUIPO of 15 February 2019 (Case R 2298/2017‑4) and 9 April 2019 (Case R 2297/2017‑4), relating to invalidity proceedings between the Republic of Cyprus and Filotas Bellas & Yios,

THE GENERAL COURT (Second Chamber),

composed of V. Tomljenović, President, F. Schalin (Rapporteur) and P. Škvařilová‑Pelzl, Judges,

Registrar: A. Juhász‑Tóth, Administrator,

having regard to the applications lodged at the Court Registry on 30 April 2019 (Case T‑281/19) and 6 June 2019 (Case T‑351/19),

having regard to the responses of EUIPO lodged at the Court Registry on 26 August 2020,

having regard to the orders staying proceedings of 25 June 2019 and 25 July 2019 pending delivery of the decisions closing the proceedings in Cases C‑608/18 P and C‑609/18 P,

having regard to the decision of 20 January 2021 joining Cases T‑281/19 and T‑351/19 for the purposes of the oral part of the procedure and of the decision closing the proceedings,

further to the hearing on 15 March 2021,

gives the following

Judgment

 Background to the dispute

1        On 26 September 2013, Filotas Bellas & Yios AE 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 following figurative sign:

3        The goods in respect of which registration was sought are in Class 29 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: ‘Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs; milk and milk products; edible oils and fats; halloumi cheese’.

4        On 7 June 2015, the trade mark application was registered, which gave rise to a publication in Community Trade Marks Bulletin No 206/2015 of 10 June 2015.

5        On 17 December 2015, the Republic of Cyprus filed applications for declarations of invalidity in respect of that mark for all the goods referred to in paragraph 3 above. Firstly, those applications were based on the absolute ground for invalidity set out in Article 52(1)(b) of Regulation No 207/2009 (now Article 59(1)(b) of Regulation 2017/1001), alleging bad faith on the part of the proprietor when filing the application for registration of the contested mark. Secondly, the Republic of Cyprus relied on the relative ground for invalidity set out in Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001), read in conjunction with Article 8(1)(b) and (5) thereof (now Article 8(1)(b) and (5) of Regulation 2017/1001), alleging the existence of a likelihood of confusion with earlier marks.

6        The applications for declarations of invalidity were based on the earlier Cypriot certification word marks ΧΑΛΛΟΥΜΙ HALLOUMI, registered on 25 June 1992 under Nos 36765 and 36766 and subsequently duly renewed.

7        The earlier marks covered goods in Class 29 corresponding, for the mark registered under No 36765, to the following description: ‘Dairy product and specifically folded cheese known as fresh halloumi’, and, for the mark registered under No 36766, to the following description: ‘Dairy product and specifically folded cheese known as mature halloumi’.

8        By decisions of 29 August 2017, the Cancellation Division rejected the applications for declarations of invalidity in their entirety and ordered the Republic of Cyprus to pay the costs.

9        On 25 October 2017, the Republic of Cyprus filed notices of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decisions of the Cancellation Division.

10      By decision of 15 February 2019, the Fourth Board of Appeal of EUIPO, in Case T‑281/19, dismissed the appeal based on the earlier mark registered under No 36765; subsequently, by decision of 9 April 2019, in Case T‑351/19, it dismissed the appeal based on the earlier mark registered under No 36766 and ordered the Republic of Cyprus to bear the costs incurred during the cancellation and appeal proceedings (‘the contested decisions’).

11      The contested decisions are based on identical grounds.

12      First of all, the Board of Appeal found that the appeals were unfounded in so far as they were based on the relative ground for invalidity set out in Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation. In the first place, it found that some of the goods covered by the contested mark were different from the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks and that there was no likelihood of confusion with regard to those goods. In the second place, regarding the goods which the Board of Appeal regarded as being identical or similar or as displaying a certain degree of similarity, in this instance the goods corresponding to the following description: ‘milk and milk products; edible oils and fats; halloumi cheese’ covered by the contested mark, on the one hand, and the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, on the other, it found that, taking account of the weak distinctive character of the earlier marks, the differences between the signs at issue were sufficient to distinguish them, even when they covered identical goods. There was therefore no likelihood of confusion with regard to those goods either.

13      Next, the Board of Appeal found that, as regards the provisions laid down in Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(5) of that regulation, the evidence submitted was insufficient to prove enhanced distinctiveness and, a fortiori, the reputation of the earlier marks in relation to the certification scheme operated by the Republic of Cyprus. Therefore, since the consumers who buy halloumi cheese are not able to distinguish the certified quality, there can be no detriment to the earlier marks. The Board of Appeal concluded in that regard that non-compliance with the regulations on the use of a certification mark was not a ground for opposition and was not dependent on the perception of the target consumer.

14      Lastly, the Board of Appeal found that the absolute ground for invalidity set out in Article 59(1)(b) of Regulation 2017/1001 did not apply in the present cases. In that regard, it held, first of all, that the descriptive meaning of the word ‘halloumi’ precluded a finding of bad faith on the part of a cheese producer which used a word specifically designating the type of cheese it produced, next, that the elements making up the contested mark did not refer to the certification scheme established by the Republic of Cyprus, but only to the tradition of producing halloumi cheese in Cyprus, which existed long before that scheme, and, lastly, that the mere fact of filing a trade mark containing that word without being authorised to produce halloumi cheese under the certification scheme established by the Republic of Cyprus could not be regarded as bad faith. Nor could the alleged bad faith be inferred from the decisions of the Greek courts relied on by the Republic of Cyprus.

 Forms of order sought

15      The Republic of Cyprus claims that the Court should:

–        annul the contested decisions;

–        order EUIPO to pay the costs.

16      EUIPO contends that the Court should:

–        dismiss the actions in their entirety;

–        order the Republic of Cyprus to pay the costs.

 Law

17      In view of the date on which the application for registration at issue was filed, namely 26 September 2013, which is decisive for the purpose of identifying the applicable substantive law, the facts of the two cases 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). In addition, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the present dispute is governed by the procedural provisions of Regulation 2017/1001.

18      Consequently, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decisions and by the parties to the proceedings in their written pleadings to Article 8(1)(b) and (5), Article 59(1)(b) and Article 60(1)(a) of Regulation 2017/1001 must be understood as referring to Article 8(1)(b) and (5), Article 52(1)(b) and Article 53(1)(a) of Regulation No 207/2009.

19      In support of the actions, the Republic of Cyprus relies, in essence, on two pleas in law, alleging, first, infringement of Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) thereof, and, secondly, infringement of Article 52(1)(b) of that regulation.

20      EUIPO contends that the two pleas in law raised by the Republic of Cyprus should be rejected.

 First plea in law: infringement of Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) thereof

21      The first plea in law is comprised, in essence, of two parts.

22      The first part alleges that the Board of Appeal erred in its assessment of the similarity of the goods covered by the marks at issue.

23      The first part comprises two complaints.

24      Under the first complaint in the first part, the Republic of Cyprus claims that the Board of Appeal made an error of assessment in finding that the goods covered by the contested mark and corresponding to the following description: ‘Meat, fish, poultry and game; meat extracts; preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs’ were different from the goods covered by the earlier marks and that there was no need to take them into account in the global assessment of the likelihood of confusion. The Board of Appeal should have reached the conclusion that all the goods covered by the contested mark were similar to the goods covered by the earlier marks.

25      In particular, the goods referred to in paragraph 24 above covered by the contested mark and wrongly excluded from the global comparison of the likelihood of confusion, and the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, display a certain degree of similarity given the following five factors: first, they are of the same nature inasmuch as they are foodstuffs; secondly, they have the same purpose, which is to be eaten; thirdly, they are aimed at the same consumers; fourthly, they may be offered at the same sales outlets, through the same distribution channels; and, fifthly, they may be brought together in the same meal.

26      Under the second complaint in the first part, the Republic of Cyprus argues that, by relying on an incorrect finding when comparing the goods covered by the marks at issue, the Board of Appeal held that it was not necessary to carry out a global assessment of the likelihood of confusion between the marks at issue while taking account of all the goods covered by the contested mark. Even if the degree of similarity between the marks at issue was low, the finding of a certain degree of similarity between all the goods covered by the contested mark and those covered by the earlier marks should necessarily have led the Board of Appeal to carry out a global assessment of the likelihood of confusion while taking into account all those goods.

27      The second part alleges an incorrect assessment by the Board of Appeal of the distinctive character of the earlier marks in the light of their nature as certification marks.

28      The second part also comprises two complaints.

29      As a preliminary point, after noting the provisions of Regulation 2017/1001, which govern EU certification marks, and of Article 28 of Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (OJ 2015 L 336, p. 1), which concerns national guarantee or certification marks, the Republic of Cyprus stated that certification marks could not simply be rejected as being devoid of any distinctive character as if they were ordinary marks, since that was at odds with the fact that they could convey certain information which went beyond the mere origin of the goods or services which they covered, in particular the fact that certain standards of quality had been met, or that certain modes of manufacture, storage or treatment had been adopted. Certification marks must therefore be considered in a special way, in particular as regards their distinctiveness, a fortiori, when it comes to national certification marks, in order to maintain the jurisdiction of national offices in determining the validity of national marks. Consequently, EUIPO was not entitled to take the view that such marks were devoid of any distinctive character.

30      Under the first complaint in the second part, the Republic of Cyprus states that, in the part of the contested decisions related to the examination of the distinctiveness of the earlier marks, the Board of Appeal was wrong to refer to the judgment of 7 October 2015, Cyprus v OHIM (XAΛΛOYMI and HALLOUMI) (T‑292/14 and T‑293/14, EU:T:2015:752). The grounds of that judgment, so far as concerns the lack of distinctiveness of an individual EU trade mark composed of the words ‘halloumi’ and ‘χαλλούμι’, in view of the descriptive character of such a mark, cannot be transferred to certification marks, which are distinct and different categories of marks. In particular, while individual trade marks should be assessed in the light of their function as indicating the individual commercial origin of the goods they cover, that is not the case with certification marks.

31      Under the second complaint in the second part, the Republic of Cyprus argues that the Board of Appeal based its global assessment of the likelihood of confusion on the finding that the earlier marks were descriptive in nature. It is true that the Board of Appeal acknowledged in formal terms that the distinctive character of those marks was not zero, describing it as weak, but it treated them as if they were simply descriptive and had no distinctive character.

32      The distinctiveness of the earlier marks should be assessed in the light of their status as certification marks and, in that regard, the evidence produced specifically demonstrates the existence of such distinctiveness. Furthermore, if certification marks were to be assessed under the ordinary criteria applicable to individual trade marks, that would amount to making many marks in that category unenforceable and would have a negative impact on the effectiveness of all national certification marks.

33      EUIPO disputes the arguments put forward by the Republic of Cyprus and contends that the first plea in law should be rejected.

34      Pursuant to Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation, upon application by the proprietor of an earlier trade mark, an EU trade mark is to be declared invalid if, because of its identity with, or similarity to, that 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.

35      Where, as in the present case, the earlier marks relied on in support of the application for a declaration of invalidity are national certification marks, which have been registered under national legislation resulting from the transposition of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, must be understood, by analogy, along with the rules governing collective marks, as being the risk that the public might believe that the goods or services covered by the mark applied for and those covered by the earlier marks all originate from persons authorised by the proprietor of those earlier marks to use them in the context of the certification scheme of which they are part or, where appropriate, from undertakings economically linked to those persons or to that proprietor (see, by analogy, judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 64).

36      In addition, in the event of an application for a declaration of invalidity by the proprietor of a certification mark, although the essential function of that type of mark must be taken into account in order to understand what is meant by likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, the fact remains that the case-law establishing the criteria with regard to which the existence of such a likelihood must be assessed in practice is applicable to cases concerning an earlier certification mark (see, by analogy, judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 65).

37      It is in the light of those principles that the Board of Appeal’s assessment of the likelihood of confusion between the signs at issue on the part of the relevant public must be examined.

 The relevant public

38      According to case-law, the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, between two marks should not be assessed on the basis of a comparison of the signs in the abstract and the goods or services which they cover. The assessment of that risk must, instead, be based on the perception that the relevant public will have of those signs, goods and services (see judgment of 2 October 2015, The Tea Board v OHIM – Delta Lingerie (Darjeeling), T‑624/13, EU:T:2015:743, paragraph 24 and the case-law cited).

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

40      In paragraph 16 of the contested decisions, the Board of Appeal stated that the goods covered by the marks at issue were intended for the general public. Consequently, it found that, since the earlier marks were registered in Cyprus, its assessment should be based on the perception of the general public in that Member State, whose level of attention was average at best when purchasing the goods in question, since they were foodstuffs for everyday consumption.

41      Those assessments, which, moreover, are not disputed by the parties, should be confirmed inasmuch as they appear to be well founded in view of the material in the file and the case-law (see, to that effect, judgment of 25 October 2006, Castell del Remei v OHIM – Bodegas Roda (ODA), T‑13/05, not published, EU:T:2006:335, paragraph 46).

 The comparison of the goods covered by the marks at issue

42      According to the case-law, in assessing the similarity of goods and services, all the relevant factors relating to those goods and services should be taken into account, which include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23). Other factors may also be taken into account such as the distribution channels of the goods and 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).

43      In paragraph 20 of the contested decisions, the Board of Appeal stated that, in the field of foodstuffs, it was not enough, in order to conclude that the goods at issue were similar, that they were foodstuffs intended for human consumption or that those goods were offered for sale in supermarkets, but rather it was necessary to determine whether they would be perceived as having a common commercial origin.

44      In that regard, the Board of Appeal noted, in paragraph 23 of the contested decisions, that the ‘halloumi cheese’, ‘milk products’ and ‘milk’ covered by the contested mark were either similar or identical to the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks. By contrast, that product differs in nature from most of the other goods covered by the contested mark, in particular ‘meat, fish, poultry and game; meat extracts’, and it cannot be associated with ‘preserved, frozen, dried and cooked fruits and vegetables’. Similarly, it also differs in nature from ‘jellies, jams, compotes’, which are spreads obtained from fruit and mostly consumed with bread.

45      In paragraph 24 of the contested decisions, the Board of Appeal found that ‘eggs’ also did not have the same nature as cheese. They cannot be replaced by that product, are obtained from different animal species and must be sold separately from dairy products on account of their fragility.

46      In paragraph 25 of the contested decisions, the Board of Appeal found that the ‘edible oils and fats’ covered by the contested mark chiefly comprised butter and margarine. Butter is a milk product which is very similar to cheese in terms of the raw materials and methods used to produce it. It is usually sold alongside cheese in the dairy products aisles of supermarkets. Accordingly, the Board of Appeal found that the goods at issue displayed an average degree of similarity.

47      In the present cases, it is necessary to examine whether the Board of Appeal erred in finding that, although some of the goods covered by the contested mark had to be regarded as similar or identical to the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, that product was not, however, similar to the other goods covered by the contested mark, with the result that, in the light of that finding and with regard to those other goods, a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 had to be ruled out.

48      First of all, it must be pointed out that, while goods such as, in the present cases, the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, on the one hand, and all the goods covered by the contested mark, on the other, belong to the general category of foodstuffs intended for human consumption, that fact is not sufficient, by itself, to render those goods identical, since their nature, the raw materials of which they are made, their intended purpose and their method of use may be completely different (see, to that effect, judgment of 26 October 2011, Intermark v OHIM – Natex International (NATY’S), T‑72/10, not published, EU:T:2011:635, paragraph 31).

49      Next, in so far as, as the Board of Appeal correctly pointed out without being contradicted by the parties, the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks is made from milk, with the result that it falls, as its name indicates, within the category of dairy products, while having, where it consists of fresh or mature halloumi cheese, a particular consistency and taste, it appears that its nature, intended purpose and method of use, as well as its method of distribution, do not differ from those of the ‘halloumi cheese’ covered by the contested mark. It must therefore be held, as did the Board of Appeal, that the goods in question are identical. As regards the ‘milk products’ and ‘milk’ covered by the contested mark, in the light of their nature, intended purpose and method of distribution, they display a degree of similarity in relation to the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks which may be considered to be high.

50      Furthermore, as regards the ‘edible oils and fats’ covered by the contested mark, those goods include products of both vegetable origin, such as margarine, and animal origin, such as butter, which is itself a milk product similar to cheese, in proximity to which it is generally sold. It must therefore be held, as is stated in paragraph 25 of the contested decisions, that those goods, having regard to their composition and method of distribution, display a degree of similarity with the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks which may be considered to be average.

51      In addition, as regards the ‘meat, fish, poultry and game; meat extracts’ in Class 29 covered by the contested mark, those are goods of animal origin, derived from the muscular tissues of wild or farmed animals. Although they are admittedly not identical to the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, the General Court has previously held that such goods, in particular those which, like meat, hams, charcuterie, cold meats and meat preserves, fell within the category of charcuterie products, could be regarded as displaying a certain degree of similarity with cheese and milk products because of their identical nature and intended purpose, as well as their similar distribution channels (see, to that effect, judgment of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 41).

52      While such conclusions clearly apply to the ‘meat’ and ‘meat extracts in Class 29 covered by the contested mark, they may also be applied to the ‘fish’, ‘poultry’ and ‘game’ in Class 29 covered by that mark. Those goods and the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks have a common nature inasmuch as: (i) they are foodstuffs composed of proteins of animal origin; (ii) they can be prepared and consumed together as ingredients of various dishes; and (iii) they may have identical distribution channels, in particular the food aisles of supermarkets, where they are frequently sold in proximity to each other. The Board of Appeal therefore erred in finding that all those goods were different from the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, whereas it had to be held that there was a low degree of similarity between them.

53      Lastly, as regards ‘eggs’, although they are indeed goods of animal origin, as are milk products and cheese, they generally come from hens, or even ducks; they do not come from cows or goats. They have a specific dietary use and, as the Board of Appeal correctly pointed out, are generally sold in a particular aisle and in specific packaging because of their fragility. Although they belong to the category of foodstuffs, ‘eggs’ must nevertheless be regarded as different from the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks.

54      Similarly, as regards the ‘preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes’ covered by the contested mark, those are foodstuffs of vegetable origin which do not contain milk or cheese and which have a specific nature connected in particular with their keeping qualities, since they are not fresh products, are generally sweet in flavour and are sold in specific aisles. The Board of Appeal was therefore correct in finding that those goods were different from the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks.

55      In the light of those considerations, it appears that the Board of Appeal erred in its comparison of some of the goods covered by the marks at issue, with the result that the first complaint in the first part is well founded in part. The global assessment of the likelihood of confusion should therefore have been conducted with regard to the ‘meat, fish, poultry and game; meat extracts’ covered by the contested mark, as was the case for the other goods covered by that mark in respect of which it was accepted that there was an identity or a certain degree of similarity with the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks. The possible consequences of that error with regard to the lawfulness of the contested decisions will be examined in the context of the global assessment of the likelihood of confusion, which will be carried out below.

56      By contrast, the Board of Appeal cannot be criticised for having considered, with regard to the goods covered by the contested mark which were not similar to the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks, that that finding alone made it possible to conclude that there was no likelihood of confusion, without there being any need to carry out a global assessment of that likelihood in relation to those goods. In that regard, the second complaint in the first part appears to be unfounded and must be rejected.

 The distinctive character of the earlier marks

57      The assessment of the distinctive character of a trade mark is of particular importance in so far as the assessment of the likelihood of confusion is to be carried out globally and implies some interdependence between the factors taken into account (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), with the result that the more distinctive the earlier mark, the greater will be the likelihood of confusion (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18). Accordingly, a low degree of distinctive character implies a greater degree of similarity between the signs at issue or between the goods and services concerned in order to conclude that there is a likelihood of confusion. As a result, an underestimation of the distinctive character of the earlier marks by the Board of Appeal is likely to vitiate the contested decisions with an error as regards the assessment of the likelihood of confusion (see, to that effect, judgment of 25 September 2018, Cyprus v EUIPO – M. J. Dairies (BBQLOUMI), T‑384/17, not published, EU:T:2018:593, paragraph 36).

58      Where an opposition is based on the existence of an earlier national trade mark, the checks on the degree of distinctiveness of that mark have limits, however, since they cannot lead to a finding of one of the absolute grounds for refusal set out in Article 7(1)(b) and (c) of Regulation No 207/2009, namely the mark’s lack of distinctiveness or purely descriptive character. Thus, in order to avoid infringing Article 8(1)(b) of Regulation No 207/2009, read in conjunction with Article 8(2)(a)(ii) thereof, it is necessary to acknowledge a certain degree of distinctiveness of an earlier national mark on which an opposition against the registration of an EU trade mark is based (judgment of 24 May 2012, Formula One Licensing v OHIM, C‑196/11 P, EU:C:2012:314, paragraphs 43 to 47).

59      The foregoing considerations, which concern opposition proceedings based on Article 8(1)(b) of Regulation No 207/2009, can be applied to invalidity proceedings based jointly on that provision and on Article 53(1)(a) of Regulation No 207/2009.

60      In the present case, as regards the distinctive character of the earlier marks with regard to the dairy product in the form of fresh or mature halloumi cheese, the Board of Appeal concluded, in paragraph 36 of the contested decisions, that their inherent distinctiveness was weak, on account of the descriptive meaning of those marks. In addition, as a consequence of an examination set out in paragraphs 30 to 32 of the contested decisions, relating in particular to the evidence provided by the Republic of Cyprus, the Board of Appeal found, in paragraph 29 of those decisions, that a distinctive character acquired through the long-standing use of the earlier marks had not been demonstrated.

61      Regulation 2017/1001, applicable from 1 October 2017, lays down provisions relating to the EU certification mark which it defines, in Article 83(1) thereof, as a trade mark ‘capable of distinguishing goods or services which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics, with the exception of geographical origin, from goods and services which are not so certified’.

62      As regards national certification marks, the Member States, as in the case of the Republic of Cyprus, have the option of authorising their registration, as was provided for in Article 15 of First Directive 89/104, which is relevant ratione temporis in light of the date of registration of the earlier marks.

63      Accordingly, the earlier marks constitute, within the meaning of Article 8(2)(a)(ii) of Regulation No 207/2009, ‘trade marks registered in a Member State’, which may be relied on in support of invalidity proceedings, as the Republic of Cyprus has done.

64      Although the earlier marks fall within the category of trade marks registered in a Member State, it should be noted that the EU trade mark regime which emerges from Regulation No 207/2009 is an autonomous system that is self-sufficient and applies independently of any national system (see, by analogy, judgment of 5 December 2000, Messe München v OHIM (electronica), T‑32/00, EU:T:2000:283, paragraph 47). Accordingly, it appears justified to take into account the national law inasmuch as it enables the validity of the earlier marks to be proved. However, as regards the inherent distinctiveness of those marks, even if, in the light of the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314), it is appropriate to accord the word ‘halloumi’, in Latin characters, or ‘χαλλούμι’, in Greek characters, registered jointly as national certification marks, a certain distinctiveness, that does not mean that marks composed solely of those words must be accorded an intrinsic distinctive character of such a level as would provide them with unconditional protection enabling opposition to any registration of a later mark including those words (see, to that effect, judgment of 25 September 2018, BBQLOUMI, T‑384/17, not published, EU:T:2018:593, paragraph 42).

65      It should also be borne in mind that, as stated in paragraph 27 of the contested decisions, the Court has already held on two occasions that the word ‘halloumi’ was perceived by, inter alia, the Cypriot public as referring to a speciality cheese from Cyprus (see, to that effect, judgments of 13 June 2012, Organismos Kypriakis Galaktokomikis Viomichanias v OHIM – Garmo (HELLIM), T‑534/10, EU:T:2012:292, paragraph 41, and of 7 October 2015, XAΛΛOYMI and HALLOUMI, T‑292/14 and T‑293/14, EU:T:2015:752, paragraphs 20 and 21). Although the reference to those two judgments is disputed by the Republic of Cyprus, inasmuch as they do not take into account the specific function of a Cypriot certification mark, the Board of Appeal nevertheless merely finds that, in the light of the evidence produced in the present cases, the conclusions reached by the General Court in those judgments concerning the perception of the earlier marks by the relevant, Cypriot, public remain valid.

66      In that regard, there is nothing in the evidence submitted by the Republic of Cyprus to the Board of Appeal, as analysed in paragraphs 30 to 32 of the contested decisions, to contradict that finding, with the result that the first complaint in the second part, relating, in essence, to the assessment of the distinctive character of the earlier marks with reference to the system of individual trade marks and the principles referred to in the judgment of 7 October 2015, XAΛΛOYMI and HALLOUMI (T‑292/14 and T‑293/14, EU:T:2015:752), must be rejected as unfounded.

67      The evidence in question, consisting, inter alia, of information on production and sales volumes for the years 2011 to 2014, as well as on promotional and marketing efforts, of extracts from cooking magazines or press articles, concerns halloumi cheese as a speciality cheese from Cyprus since at least the beginning of the 20th century, or even since the period of the Venetian domination of Cyprus in the 16th century, but without it being possible to connect the word ‘halloumi’, in Latin characters, or ‘χαλλούμι’, in Greek characters, used in generic fashion to refer to a type of cheese, with the certification scheme introduced in 1992. As the Board of Appeal correctly pointed out, it appears, in the light of those various elements, that that word, in whichever characters it is written, is perceived by the Cypriot public only as the name of a type of cheese produced in Cyprus.

68      Accordingly, it must be held that the word ‘halloumi’ or ‘χαλλούμι’ will be directly understood by the relevant public as describing the characteristics of the product, or even its origin in so far as it is a traditional product from Cyprus, and not as an indication of its certified quality, nor even as an indication of that quality. It must therefore be held that the earlier marks, consisting solely of the word ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, inasmuch as they are descriptive of the characteristics and the origin of the product which they cover, have only a low degree of inherent distinctiveness and that, moreover, the existence of any enhanced distinctiveness does not appear to have been proved.

69      In any event, it must also be remarked that the question whether the effective compliance by the proprietor of the contested mark with the characteristics guaranteed by the Republic of Cyprus as proprietor of the earlier marks forms part of the essential function of those marks is outside the scope of the protection afforded by Article 8(1)(b) of Regulation No 207/2009. That question concerns, at most, the use of a mark, inasmuch as it could harm the essential function of a certification mark and mislead the public regarding the certification of the characteristics of the goods (see, to that effect, judgment of 25 September 2018, BBQLOUMI, T‑384/17, not published, EU:T:2018:593, paragraph 48).

70      In addition, it must be noted, as did the Board of Appeal in paragraph 34 of the contested decisions, that, although an application for a protected designation of origin for halloumi cheese has been lodged by the Republic of Cyprus, it was filed on 28 July 2015, that is to say, after the application for registration of the contested mark was filed, so that that factor has no bearing on the lawfulness of the contested decisions.

71      Similarly, there is no reason to call into question the reasoning set out in paragraph 35 of the contested decisions, according to which the decisions of the national courts relied on by the Republic of Cyprus before the Board of Appeal are of no relevance to the present cases, in particular because, when the contested decisions were adopted, they were not final, concerned a different earlier right, or examined issues unrelated to the disputes in the present cases.

72      In those circumstances, it is necessary to reject the second complaint in the second part, alleging, in essence, that, in the assessment of the criteria for the global assessment of the likelihood of confusion, the earlier marks were considered to have a purely descriptive character, and to find that the Board of Appeal was correct in finding that, because of their descriptive meaning, the earlier marks had weak inherent distinctiveness and that there was nothing to support the view that they had acquired enhanced distinctiveness as a result of their use.

 The dominant or most distinctive elements of the contested mark

73      In paragraph 41 of the contested decisions, the Board of Appeal gave a description of the contested mark, stating that it was a figurative representation consisting of the word ‘halloumi’ written in large light green letters, with the word ‘χαλλούμι’ in light blue directly underneath, then below that word, and slightly closer to the centre of the sign, is the word ‘vermion’, written in slightly smaller and bolder light blue letters, with the words ‘grill cheese/grill est/grill kase’, barely legible, written in very small blue letters below. Those words appear on a white rectangular background overlaying a photograph of pieces of halloumi cheese on a bed of greens above the words, in inverted commas and in very small blue letters, ‘mediterranean cuisine under authentic Cypriot recipe’. Under those elements there is a white element resembling a lower case stylised ‘m’ on a circular yellow background, under which the word ‘belas’ appears in bold grey capital letters, as does the expression ‘premium Greek dairy since 1927’ in small letters.

74      The Board of Appeal found, in paragraph 42 of the contested decisions, that, despite the presence of the word ‘halloumi’ in the upper part of the contested sign, it could not be considered that it formed the ‘beginning’ of that sign which, given its complex nature, did not have a beginning as such. Accordingly, the word ‘vermion’, although slightly smaller than the word ‘halloumi’ but larger than the word ‘χαλλούμι’, appears in an equally eye-catching position closer to the central part of the mark, while the word ‘belas’, written in bold grey capital letters in the lower right-hand part, will not be overlooked. Given that consumers tend to focus their attention on words rather than figurative elements, the yellow spot containing the white element is of secondary importance in the overall impression created by the contested mark. On account of its position and stylisation, and contrary to what the description of the sign in question suggests, it will not be perceived as being related to the word ‘belas’ placed below. The relevant public will understand the word ‘χαλλούμι’ as ‘halloumi’ and will not take into account its descriptive meaning. As regards specifically the word ‘χαλλούμι’, it does not have a greater distinctive character because it is the only element in Greek characters, since Greek is an official language of Cyprus and the relevant public will understand only its descriptive meaning, whether or not it is accompanied by other words in Latin characters. Those findings also apply to the expressions ‘grill cheese/grill est/grill kase’ and ‘mediterranean cuisine under authentic Cypriot recipe’, which are of secondary importance. They will be understood by the relevant English-speaking public as mere explanations of the nature and quality of the goods at issue, just like the photograph of grilled halloumi cheese.

75      Furthermore, as regards the distinctive elements of the contested sign, the Board of Appeal found, in paragraphs 44 and 45 of the contested decisions, that the words ‘halloumi’ and ‘χαλλούμι’ were descriptive of cheese for the relevant public. That descriptive character is reinforced by the figurative elements representing grilled cheese and by the heading ‘grill cheese/grill est/grill kase’. Consequently, the words ‘vermion’ and ‘belas’, which have no meaning with regard to the goods in question, are the dominant and distinctive elements of the sign. In that regard, the word ‘vermion’ has no meaning for the relevant public. The name of a mountain range in Greece, known for its ski resort, does not convey any meaning that could describe the goods applied for in Class 29, irrespective of whether or not the general public in Cyprus is familiar with that name.

76      Those findings of the Board of Appeal, apart from the fact that they are not expressly challenged by the parties, appear to be correct and must be upheld in part. It is indeed possible to criticise the Board of Appeal for not having found that, together with the elements ‘vermion’ and ‘belas’, the element ‘halloumi’ also dominated the overall visual impression produced by the contested mark. The Board of Appeal nevertheless correctly found that the elements ‘vermion’ and ‘belas’ were among the dominant elements in that mark and that, moreover, they were its most distinctive elements. While it is true that the word ‘vermion’ designates a place, that place is in Greece, whereas the word ‘halloumi’ refers specifically to a cheese produced in Cyprus, with the result that there is nothing to suggest that the relevant public is likely to establish a link between the word ‘vermion’ and the place of origin of the goods in question or their ingredients. For the relevant public, defined as being the general public in Cyprus, the word elements ‘vermion’ and ‘belas’ are therefore among the dominant elements in the contested mark, of which they are, moreover, the most distinctive elements.

 The comparison of the signs at issue

77      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

78      In the first place, as regards the visual comparison, it must be pointed out that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM – Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).

79      In accordance with the case-law, where a trade mark is composed of word and figurative elements, the word element of the mark is, in principle, more distinctive than the figurative element, because the average consumer will more readily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (see judgment of 9 September 2008, Honda Motor Europe v OHIM – Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 30 and the case-law cited).

80      The earlier marks are made up of the word ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, whereas the contested mark is a figurative representation composed of several word elements and a photograph.

81      To the extent, as is apparent from the analysis of the contested mark, that among the elements of which it is comprised, the words ‘vermion’ and ‘belas’, which are among the dominant elements, are the most distinctive, the word ‘halloumi’ is consequently merely secondary in the overall impression produced by that mark.

82      Therefore, it is necessary to uphold the finding that there is a very low visual similarity between the signs at issue, as is stated in paragraph 46 of the contested decisions, since those signs coincide only in terms of the word ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, to which consumers, in the case of the contested mark, will pay only a low level of attention on account of their descriptive meaning.

83      In the second place, as regards the phonetic comparison, the Board of Appeal found, in paragraph 47 of the contested decisions, that the phonetic similarity of the signs at issue was low because, despite the presence of the words ‘halloumi’ and ‘χαλλούμι’ in each of those signs, consumers shorten the pronunciation of the contested sign in order to pronounce only ‘vermion’ or ‘belas’.

84      That assessment must be upheld. Although the common presence of the words ‘halloumi’ and ‘χαλλούμι’ in the marks at issue gives rise to a certain degree of phonetic similarity, it is very greatly reduced by the presence of other word elements in the contested mark, which are intended to be pronounced to a greater extent by consumers when they refer to that mark, since, within that mark, those elements are among the dominant elements and constitute, moreover, the most distinctive elements.

85      In the third place, the Board of Appeal found, in paragraph 48 of the contested decisions, that it was not possible to carry out a conceptual comparison, because the contested sign as a whole has no meaning, and that coincidence in a descriptive term cannot establish a relevant conceptual similarity for the assessment of the likelihood of confusion.

86      The Board of Appeal’s analysis on that point cannot, however, be upheld. Although it is true that the earlier marks convey the concept of a type of Cypriot cheese, namely halloumi cheese, it is possible that, to a certain extent, the contested mark conveys a similar concept. For the relevant public, the word ‘halloumi’, in Latin characters, or ‘χαλλούμι’, in Greek characters, associated with the photograph of pieces of halloumi cheese on a bed of greens, could also refer to the concept of halloumi cheese.

87      However, in so far as the elements ‘halloumi’ or ‘χαλλούμι’ play only a secondary role in the contested mark, in particular in relation to the dominant and most distinctive elements ‘vermion’ and ‘belas’, it is likely that the concept that they convey, even when associated with the photograph of pieces of halloumi cheese placed on a bed of greens, will not immediately be perceived by the relevant public as an element intended to identify the commercial origin of the goods concerned, unlike the words ‘vermion’ and ‘belas’ which are more distinctive, since they do not convey any precise concept or since, as regards the word ‘vermion’, it refers, at most, to a place which has no direct link to the goods at issue.

88      In those circumstances, contrary to what the Board of Appeal found in the contested decisions, the signs at issue are not completely different on a conceptual level, but display a degree of conceptual similarity which may be classified as low.

89      It must therefore be held that the Board of Appeal made an error when comparing the signs at issue, in this instance in assessing the conceptual similarity. The possible impact of that error on the lawfulness of the contested decisions will be examined below as part of the global assessment of the likelihood of confusion.

 The global assessment of the likelihood of confusion

90      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 by those marks. 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).

91      In the present cases, it should be borne in mind that, in paragraph 53 of the contested decisions, the Board of Appeal concluded that, because the marks at issue coincided only in the descriptive elements ‘halloumi’ and ‘χαλλούμι’, while differing in elements which, in the contested mark, were dominant, and moreover the most distinctive, namely the words ‘vermion’ and ‘belas’, which are not to be found in the earlier marks, and taking into account the weak distinctive character of those earlier marks, the differences between the marks at issue were sufficient to safely distinguish them, whether covering identical goods, or, a fortiori, similar goods.

92      In that regard, in so far as the existence of 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, the finding that there is no likelihood of confusion must, in any event, be endorsed as regards the ‘eggs’ and ‘preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes’ covered by the contested mark, since they are different from the goods covered by the earlier marks.

93      By contrast, as regards the other goods covered by the contested mark which are identical or similar, to varying degrees, to the goods covered by the earlier marks, the existence of a likelihood of confusion cannot immediately be excluded, with the result that the global assessment of that likelihood must be carried out in the light of all the relevant factors.

94      First, as regards the factor relating to the similarity of the signs at issue, that factor relates, first, to the presence of the words ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, in the contested sign, whereas those words also correspond to the only elements of which the earlier marks are composed, which is the source of a very low degree of visual similarity and a low degree of phonetic and conceptual similarity, and, secondly, to the fact that those words, associated with the photograph of pieces of halloumi cheese on a bed of greens, could refer to the concept of halloumi cheese.

95      Those considerations must, however, be seen in the light of the fact that, when the public is faced with the word element of which the contested sign consists, its attention will be drawn more to the elements which have the characteristics of elements that are both dominant and distinctive within that sign, in this instance the words ‘vermion’ and ‘belas’, which are not present in the earlier signs. Furthermore, while it is true that the words ‘halloumi’, in Latin characters, or ‘χαλλούμι’, in Greek characters, associated with the photograph of pieces of halloumi cheese on a bed of greens, could refer to the concept of halloumi cheese, the figurative element in the contested sign also plays a significant differentiating role, in so far as the earlier signs, which are word marks, do not include that element.

96      Thus, the words ‘halloumi’, in Latin characters, or ‘χαλλούμι’, in Greek characters, the main elements giving rise to the similarity between the signs at issue, do not, as it were, contribute to the distinctive character of the contested mark, since the elements ‘vermion’ and ‘belas’ of that mark were regarded as the elements which would most attract the attention of the relevant public because of their character as the dominant and most distinctive elements, whereas the earlier marks, for their part, enjoyed only weak inherent distinctiveness.

97      Although the finding that the earlier mark has weak distinctive character does not in itself preclude a finding that there is a likelihood of confusion (see, to that effect, order of 27 April 2006, L’Oréal v OHIM, C‑235/05 P, not published, EU:C:2006:271, paragraphs 42 to 45), it appears, however, that where the elements of similarity between several signs arise from the fact that, as in the present cases, they share a component which has weak inherent distinctiveness, the impact of such elements of similarity on the global assessment of the likelihood of confusion is itself low (see, to that effect, judgments of 22 February 2018, International Gaming Projects v EUIPO – Zitro IP (TRIPLE TURBO), T‑210/17, not published, EU:T:2018:91, paragraph 73 and the case-law cited, and of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 79).

98      In those circumstances, the low degree of similarity which exists between the signs at issue in the present cases will be unlikely to contribute to a likelihood of confusion, since those signs coincide only in the words ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, which, even while not being the most distinctive elements within the contested mark, are inherently weakly distinctive for the relevant public, which will understand them at most as a reference to halloumi cheese and, therefore, as the type of product covered by that mark.

99      Secondly, as regards the distinctive character of the earlier marks, first, they have a low degree of inherent distinctiveness and, secondly, the Republic of Cyprus has not demonstrated the existence of enhanced distinctiveness acquired through use, in so far as the evidence adduced does not permit a finding that the relevant public, faced with the earlier marks, will associate them with anything other than halloumi cheese, having regard to the fact that they refer to the generic name for that type of cheese, rather than to the commercial origin of the goods covered by those marks, inasmuch as they originate from persons authorised to use those marks or, as the case may be, from undertakings economically linked to those persons or to the proprietor of those same marks.

100    In those circumstances, the level of protection conferred by the earlier marks, having regard to their low degree of inherent distinctiveness, can itself only be low.

101    Thirdly, it is necessary to take into consideration the fact that some of the goods covered by the contested mark, in this instance ‘halloumi cheese’, are identical to the goods covered by the earlier marks and that other such goods, in this instance ‘milk’ and ‘milk products’, ‘meat, fish, poultry and game; meat extracts’ and ‘edible oils and fats’, are similar to varying degrees.

102    In that regard, it should be borne in mind that all the goods in question are everyday consumer goods, during the purchase of which the relevant public will display an average level of attention.

103    A finding of a likelihood of confusion could be made only if the relevant public was likely to be misled as to whether the goods or services covered by the mark applied for and those covered by the earlier marks all originate from persons authorised by the proprietor of those earlier marks to use them in the context of the certification scheme of which they are part or, where appropriate, from undertakings economically linked to those persons or to that proprietor.

104    In the present case, that likelihood does not appear to be established, even for the goods covered by the contested mark which are identical to the dairy product in the form of fresh or mature halloumi cheese covered by the earlier marks.

105    When the relevant public is faced with the contested mark, and assuming that it also directs its attention to the elements ‘halloumi’ or ‘χαλλούμι’ present in that mark, which is unlikely in view of the fact that those elements are not very distinctive and are descriptive in relation to the goods covered by that mark, even if it perceives that the photograph of pieces of halloumi cheese on a bed of greens could refer to the concept of halloumi cheese, it will not establish a link between that same mark and the earlier marks, since, first, it will at most establish a link between those marks and the product covered by them, namely a dairy product in the form of fresh or mature halloumi cheese, and, secondly, the marks at issue, considered as a whole, display only a low degree of similarity.

106    In the light of all the foregoing considerations, it must be held that, notwithstanding the errors which it made, first of all, in the comparison of the goods covered by the marks at issue, then, in the assessment of the dominant elements in the contested mark and, lastly, in the comparison of the marks at issue, the Board of Appeal rightly concluded in the present cases that there was no likelihood of confusion.

107    Consequently, the first plea in law must be rejected as unfounded.

 Second plea in law: infringement of Article 52(1)(b) of Regulation No 207/2009

108    The second plea in law is comprised of two parts.

109    First, according to the Republic of Cyprus, the Board of Appeal applied an incorrect criterion in order to assess the bad faith of the proprietor of the contested mark. It took the view, in essence, that, as the earlier marks consisted of a word which designated a specific type of cheese, a cheese producer could not be criticised, even though it was not authorised to produce cheese under the certification scheme established by the Republic of Cyprus, for using that word to describe the cheese it produced. That reasoning was based on the incorrect finding that the earlier marks are descriptive.

110    Secondly, in support of its conclusion that there was no bad faith on the part of the proprietor of the contested mark, the Board of Appeal found that there was no indication of dishonest intention on the part of that proprietor, whereas, in the Court’s case-law, dishonesty is not a criterion for assessing bad faith. The Board of Appeal therefore erred and should have concluded that the contested mark had been filed in bad faith and was therefore invalid on that basis.

111    EUIPO disputes the arguments put forward by the Republic of Cyprus and contends that the second plea in law should be rejected.

112    Article 52(1)(b) of Regulation No 207/2009, under the heading ‘Absolute grounds for invalidity’, states as follows:

‘[An EU] trade mark shall be declared invalid on application to [EUIPO] or on the basis of a counterclaim in infringement proceedings: …

(b)      where the applicant was acting in bad faith when he filed the application for the trade mark.’

113    First of all, it should be noted that, if a concept set out in Regulation No 207/2009 is not defined by that regulation, its meaning and scope must be determined by considering its usual meaning in everyday language, whilst also taking into account the context in which it occurs and the objectives pursued by that regulation (see, to that effect, judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 43 and the case-law cited).

114    That applies to the concept of ‘bad faith’ referred to in Article 52(1)(b) of Regulation No 207/2009, in the absence of any definition of that concept by the EU legislature.

115    While, in accordance with its usual meaning in everyday language, the concept of ‘bad faith’ presupposes the presence of a dishonest state of mind or intention, that concept must moreover be understood in the context of trade mark law, which is that of the course of trade. In that regard, Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Regulations No 207/2009 and 2017/1001, which were adopted successively, have the same objective, namely the establishment and functioning of the internal market. The rules on the EU trade mark are aimed, in particular, at contributing to the system of undistorted competition in the Union, in which each undertaking must, in order to attract and retain customers by the quality of its goods or services, be able to have registered as trade marks signs which enable the consumer, without any possibility of confusion, to distinguish those goods or services from others which have a different origin (see judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 45 and the case-law cited).

116    Consequently, the absolute ground for invalidity referred to in Article 52(1)(b) of Regulation No 207/2009 applies where it is apparent from relevant and consistent indicia that the proprietor of an EU trade mark has filed the application for registration of that mark not with the aim of engaging fairly in competition but with the intention of undermining, in a manner inconsistent with honest practices, the interests of third parties, or with the intention of obtaining, without even targeting a specific third party, an exclusive right for purposes other than those falling within the functions of a trade mark, in particular the essential function of indicating origin (see, to that effect, judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 46).

117    Next, the intention of an applicant for a trade mark is a subjective factor which must, however, be determined objectively by the competent administrative or judicial authorities. Consequently, any claim of bad faith must be the subject of an overall assessment, taking into account all the factual circumstances relevant to the particular case (see, to that effect, judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraphs 37 and 42). It is only in that manner that a claim of bad faith can be assessed objectively.

118    Furthermore, it must also be noted that, according to the case-law, in the case of an application for a declaration of invalidity based on Article 52(1)(b) of Regulation No 207/2009, there is no requirement whatsoever that the applicant for that declaration be the proprietor of an earlier mark covering goods or services identical or similar to those covered by the mark in respect of which a declaration of invalidity is sought (see, to that effect, judgment of 13 November 2019, Outsource Professional Services v EUIPO, C‑528/18 P, not published, EU:C:2019:961, paragraph 72 and the case-law cited).

119    It is to be inferred from the interpretation provided by the Court of Justice in paragraph 53 of the judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:361), merely that, where it is established that use by a third party of an identical or similar sign for identical or similar goods or services existed and was capable of causing confusion, it is necessary to examine, in the context of the overall assessment of the relevant circumstances of the particular case, whether the applicant for registration of a mark had knowledge of this. That factor is, however, only one relevant factor among others to be taken into consideration (see, to that effect, judgment of 12 September 2019, Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO, C‑104/18 P, EU:C:2019:724, paragraph 55). The fact that that applicant knew or must have known that a third party had long been using, in at least one Member State, an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration is sought is not sufficient, in itself, to permit the conclusion that that applicant was acting in bad faith (judgment of 11 June 2009, Chocoladefabriken Lindt & Sprüngli, C‑529/07, EU:C:2009:361, paragraph 40).

120    Lastly, the potentially descriptive nature of an element of which an EU trade mark consists, in particular a word element, does not prevent a finding that the proprietor of that trade mark acted in bad faith when it applied for registration of that trade mark (see, by analogy, judgment of 13 November 2019, Outsource Professional Services v EUIPO, C‑528/18 P, not published, EU:C:2019:961, paragraph 69).

121    In paragraph 59 of the contested decisions, the Board of Appeal stated that it saw nothing dishonest in the fact that a cheese producer used words designating a specific type of cheese in order to describe the cheese it produced and that mere knowledge of the existence of earlier rights held by competitors did not constitute bad faith. In that regard, the wording of the contested mark, in particular the expression ‘mediterranean cuisine under authentic Cypriot recipe’, is a reference to the tradition of halloumi cheese production in Cyprus and not to the certification scheme established by the Republic of Cyprus in 1992, with the result that the mere fact that the proprietor of the contested mark was not authorised to produce halloumi cheese under that certification scheme did not constitute bad faith. The question whether other Greek dairy companies could decide to produce halloumi cheese in Cyprus was therefore irrelevant. Similarly, it was not necessary to take into account the decisions of Greek courts concluding that the proprietor of the contested mark had acted in bad faith.

122    In the present cases, it is common ground that, when the proprietor of the contested mark filed the application for registration of that mark on 26 September 2013, the earlier marks had already been registered for several years, namely since 25 June 1992. Although the documents in the case file do not enable the Court to rule with certainty on this point, it is conceivable that, when the contested mark was filed, the proprietor of that mark was aware of the existence of the earlier marks.

123    However, the earlier marks have the specific feature of consisting only of words, namely ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, which also correspond to the generic name for a particular type of cheese produced in Cyprus according to a special recipe (see, to that effect, judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 76).

124    In that regard, it must be pointed out that the evidence submitted by the Republic of Cyprus during the proceedings before EUIPO in order to demonstrate the distinctive character acquired through use of the earlier marks, some of which date from the beginning of the 20th century, makes it possible to establish long-standing use of the word ‘halloumi’ to designate a type of cheese produced in Cyprus, well before the registration of the earlier marks.

125    In those circumstances, although the potentially descriptive nature of an element of which an EU trade mark consists, in particular a word element, does not prevent a finding that the proprietor of that mark acted in bad faith, the use of the words ‘halloumi’, in Latin characters, and ‘χαλλούμι’, in Greek characters, among the word elements of which a complex figurative mark, like the contested mark, consists, must a priori be regarded as the use of a word which is descriptive of the goods covered by that mark, since those goods may be halloumi cheese or may contain that type of cheese in their composition.

126    The rights which the Republic of Cyprus derives from the registration of the earlier marks, even if they are certification marks, cannot in all circumstances confer on it an exclusive right to use the word ‘halloumi’, when, moreover, the extent of its rights under those marks is determined by the distinctiveness of those marks, whether inherent or acquired through use, which, it must be recalled, is weak in the present cases.

127    Moreover, concerning the reference by the Board of Appeal to the criterion of dishonesty, contrary to what the Republic of Cyprus claims, that criterion appears several times in the Court’s case-law, as is argued by EUIPO (see, to that effect, judgments of 14 February 2019, Mouldpro v EUIPO – Wenz Kunststoff (MOULDPRO), T‑796/17, not published, EU:T:2019:88, paragraph 80; of 14 May 2019, Moreira v EUIPO – Da Silva Santos Júnior (NEYMAR), T‑795/17, not published, EU:T:2019:329, paragraph 23; and of 23 May 2019, Holzer y Cia v EUIPO – Annco (ANN TAYLOR and AT ANN TAYLOR), T‑3/18 and T‑4/18, EU:T:2019:357, paragraph 31). That criterion is also referred to, in essence, in point 60 of the Opinion of Advocate General Sharpston in Chocoladefabriken Lindt & Sprüngli (C‑529/07, EU:C:2009:148), in the sense that the ‘dishonest intention’ of the person making an application for registration of an EU trade mark makes it possible to assess that person’s subjective motivation. The Board of Appeal was therefore entitled, without committing any error, to rely on that criterion in particular in order to assess the alleged bad faith of the proprietor of the contested mark.

128    Lastly, for the same reasons as those set out in paragraph 71 above, the decisions of the national courts relied on by the Republic of Cyprus before the Board of Appeal must be regarded as irrelevant for the purpose of determining whether there was bad faith on the part of the proprietor of the contested mark.

129    In the light of the foregoing considerations, it must be concluded that, first, the Board of Appeal did not apply an incorrect criterion in order to assess the possible bad faith of the proprietor of the contested mark and, secondly, the overall assessment of the relevant circumstances of the present cases does not make it possible to reach a finding that the proprietor of the contested mark acted in bad faith when filing the application for registration of that mark.

130    The two parts of the second plea in law must therefore be declared unfounded and, accordingly, that plea in law must be rejected and the actions must be dismissed in their entirety.

 Costs

131    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.

132    In the present case, since the Republic of Cyprus has been unsuccessful, it must be ordered to bear its own costs and to pay the costs incurred by EUIPO, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the actions;

2.      Orders the Republic of Cyprus to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).

Delivered in open court in Luxembourg on 16 June 2021.

*      Language of the case: English.

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