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

Provisional text

JUDGMENT OF THE GENERAL COURT (Second Chamber)

24 March 2021 (*)

(EU trade mark – Invalidity proceedings – EU figurative mark representing a fish – Earlier national word mark BLINKA – Relative ground for refusal – No likelihood of confusion – No similarity between the signs – Article 8(1)(b) of Regulation (EU) 2017/1001 – Obligation to state reasons – First sentence of Article 94(1) of Regulation 2017/1001)

In Case T‑354/20,

Wirtschaftsgesellschaft des Kfz-Gewerbes mbH, established in Bonn (Germany), represented by N. Hebeis, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by L. Lapinskaite, J. Crespo Carrillo and V. Ruzek, acting as Agents,

defendant,

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

The Blink Fish Srl, established in Milan (Italy),

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 6 April 2020 (Case R 2333/2019-4), relating to invalidity proceedings between Wirtschaftsgesellschaft des Kfz-Gewerbes and The Blink Fish,

THE GENERAL COURT (Second Chamber),

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

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 4 June 2020,

having regard to the response lodged at the Court Registry on 24 September 2020,

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

gives the following

Judgment

 Background to the dispute

1        On 9 October 2017, the other party to the proceedings before the Board of Appeal, The Blink Fish Srl, filed an application for registration of a European Union trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to 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 services in respect of which registration was sought are in Classes 35, 38 and 41 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

–        Class 35: ‘Advertising; Business management; Business administration; Clerical services’;

–        Class 38: ‘Telecommunication services’;

–        Class 41: ‘Entertainment services; Sporting and cultural activities; Teaching; Training’;

4        The mark was registered on 24 January 2018 under number 17301359.

5        On 8 May 2018, the applicant, Wirtschaftsgesellschaft des Kfz-Gewerbes mbH, filed an application for a declaration that the abovementioned mark was invalid in respect of all the services for which it had been registered.

6        The application for a declaration of invalidity was based on the earlier German word mark BLINKA, registered on 2 December 2015 under No 302015053329 in respect of, inter alia, the following services:

–        Class 35: ‘Advertising; Business management’;

–        Class 38: ‘Telecommunication services’;

–        Class 41: ‘Education; training; entertainment services; sporting and cultural activities’.

7        The grounds relied on by the applicant were those set out in Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(a) and (b) of that regulation.

8        On 22 August 2019, the Cancellation Division rejected the application for a declaration of invalidity on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(a) and (b) of Regulation 2017/1001.

9        On 17 October 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 Cancellation Division.

10      By decision of 6 April 2020 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(a) and (b) of Regulation 2017/1001. First, it found that the relevant territory for assessing the likelihood of confusion was Germany since the earlier mark was registered in that State. Secondly, the Board of Appeal found that the relevant public, both the general public and professionals, would perceive the contested mark as a representation of a stylised fish and would not associate that figurative element with any particular meaning other than that of a fish. Thirdly, the Board of Appeal concluded that there was no visual similarity between the marks at issue and that those marks could not be compared phonetically or conceptually. Fourthly, the Board of Appeal found that, since the marks at issue were neither similar nor identical Article 8(1)(a) and (b) of Regulation 2017/1001 was not applicable.

 Forms of order sought

11      The applicant claims that the Court should:

–        annul in part the contested decision, in so far as it concerns the following services covered by the contested mark:

–        Class 35: ‘Advertising; Business management’;

–        Class 38: ‘Telecommunication services’;

–        Class 41: ‘Entertainment services; Sporting and cultural activities; Teaching; Training’;

–        order EUIPO to pay the costs.

12      EUIPO contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

 Law

 Subject matter of the action

13      In its application, the applicant states that it does not challenge the contested decision in so far as it concerns ‘clerical services’ and ‘business administration’ services in Class 35 covered by the contested mark, which were found to be similar to the services covered by the earlier mark.

14      Thus, the present action concerns only the contested decision in so far as it relates to the services covered by the contested mark which were found to be identical to the services covered by the earlier mark, as set out in paragraph 11 above.

 Substance

15      The applicant relies, in essence, on two pleas in law in support of its application for annulment in part of the contested decision. The first plea alleges infringement of Article 8(1)(b) of Regulation 2017/1001 in so far as the Board of Appeal erred in finding that there was no likelihood of confusion in the present case. The second plea alleges infringement of the first sentence of Article 94(1) of Regulation 2017/1001 in so far as the Board of Appeal did not provide an adequate statement of reasons for the contested decision.

16      EUIPO contends that the two pleas set out in paragraph 15 above, which it considers unfounded, should be rejected and, consequently, that the action should be rejected in its entirety.

17      In that regard, it should be recalled that a claim that there is no, or only an inadequate, statement of reasons is intended to establish an infringement of essential procedural requirements and, therefore, should be examined separately, as such, from the question whether the grounds for the contested decision are accurate, the latter being a matter for the Court to review when it examines the substance of that decision (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 15 December 2005, Italy v Commission, C‑66/02, EU:C:2005:768, paragraph 26).

18      It follows that the second plea, in so far as it seeks to establish an infringement of the obligation to state reasons, must be examined before the first plea, which is concerned with the substantive legality of the contested decision.

 The second plea in law, alleging infringement of the first sentence of Article 94(1) of Regulation 2017/1001

19      By its second plea, the applicant claims that the Board of Appeal infringed the first sentence of Article 94(1) of Regulation 2017/1001 in so far as it did not provide an adequate statement of reasons for the contested decision. In particular, the applicant submits that the Board of Appeal did not deal with the relevant public’s perception of the contested mark to the requisite legal standard.

20      EUIPO disputes the applicant’s arguments.

21      It must be recalled that, in accordance with the first sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. That obligation has two purposes: (i) to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights, and, (ii) to enable the Courts of the European Union to exercise their power to review the legality of the decision. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question. Furthermore, the obligation to state reasons does not require the Boards of Appeal to provide an account that follows exhaustively and one by one all the lines of argument put forward by the parties before them. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In addition, the reasoning may be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its power of review (see judgment of 12 March 2020, Maternus v EUIPO – adp Gauselmann (Jokers WILD Casino), T‑321/19, not published, EU:T:2020:101, paragraphs 15 to 17 and the case-law cited).

22      In the present case, it is apparent from the contested decision that, according to the Board of Appeal, the relevant public will perceive the contested mark solely as a representation of a stylised fish since the average consumer does not tend to analyse marks in detail and will not spend time trying to analyse whether there are any letters or words hidden in that fish. Furthermore, as regards the perception of signs by an average consumer, the Board of Appeal made reference to the case-law of the Court of Justice.

23      Although the Board of Appeal’s reasoning is not very detailed as regards the relevant public’s perception of the contested mark, it nonetheless (i) allows the parties to the present dispute to know the justification for the contested decision so as to enable them to protect their rights, and, (ii) enables the Courts of the European Union to exercise their power to review the legality of that decision, as required in accordance with the case-law cited in paragraph 21 above.

24      Consequently, it must be held that the Board of Appeal stated to the requisite legal standard, in the contested decision, its position on the perception of the contested mark by the relevant public.

25      Having regard to the foregoing, the second plea must be rejected.

 The first plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001

26      By its first plea, the applicant claims that the Board of Appeal erred in finding that there was no likelihood of confusion in the present case.

27      In particular, first, the applicant does not dispute the findings of the Board of Appeal that the relevant territory for the assessment of the likelihood of confusion is Germany and that the services in question, covered by the contested mark, as set out in paragraph 11 above, are identical to the services covered by the earlier mark. Secondly, according to the applicant, the relevant public, consisting of both the general public and professionals, displays a high, or even particularly high, level of attention. Thirdly, the applicant submits that, contrary to the findings of the Board of Appeal, the contested mark will be perceived by the relevant public not only as a representation of a stylised fish, but also as a string of letters, ‘b’, ‘l’, ‘i’, ‘n’ and ‘k’, which forms the word ‘blink’. Consequently, according to the applicant, the marks at issue have a high degree of phonetic similarity and an average degree of visual similarity, even though, as found by the Board of Appeal, a conceptual comparison cannot be carried out because the earlier mark has no meaning in German. Fourthly, the applicant maintains that, since the earlier mark has no meaning in German or English, its distinctive character is average. Fifthly, in the light of those factors, the applicant claims that the relevant public will view the contested mark as a logo and that, in the eyes of that public, there is a likelihood of confusion, in the form of a likelihood of association, under Article 8(1)(b) of Regulation 2017/1001.

28      EUIPO disputes the applicant’s arguments.

29      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

30      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

31      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

32      In the first place, as regards the relevant territory for the assessment of the likelihood of confusion, it must be borne in mind that, according to Article 8(1)(b) of Regulation 2017/1001, the existence of a likelihood of confusion resulting from the similarity, on the one hand, between the trade mark in the application for registration and an earlier trade mark and, on the other hand, between the goods or services covered by the trade marks must be assessed on the part of the public in the territory in which the earlier trade mark is protected (see judgment of 18 November 2020, LG Electronics v EUIPO – Staszewski (K7), T‑21/20, not published, EU:T:2020:550, paragraph 22 and the case-law cited).

33      The Board of Appeal found that, since the earlier mark was a German mark, the relevant territory for the purposes of assessing the likelihood of confusion was Germany. Such a finding, which, moreover, is not disputed by the parties, is consistent with the case-law cited in paragraph 32 above.

34      In the second place, as regards the relevant public for the assessment of the likelihood of confusion, the Board of Appeal, in relation to the assessment of the perception of the marks at issue, took into account both the general public and professionals. It did not explicitly define the level of attention of the relevant public, which, in any event, does not make it impossible for the Court to examine the legality of the contested decision or for the applicant to protect its rights (judgment of 25 November 2015, Sephora v OHIM – Mayfield Trading (Representation of two undulating vertical lines), T‑320/14, not published, EU:T:2015:882, paragraph 21).

35      The applicant submits that the relevant public, consisting of both the general public and professionals, has a high, or even a particularly high, level of attention. It notes, in that regard, that professionals in the field of advertising, entertainment and cultural activities, on account of the very nature of their profession, are not only highly creative and have a vivid imagination, but also have an increased professional diligence and attention. Furthermore, according to the applicant, the level of attention of the entire relevant public is particularly high, on account of the striking and eye-catching nature of the contested mark.

36      In that regard, it must be borne in mind that, 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).

37      Even though the Board of Appeal did not explicitly refer to the level of attention of the relevant public, it did, in fact, define the relevant public in the same way as the Cancellation Division, taking into account, in its examination of the assessment of the marks at issue, both the general public and professionals. Moreover, it is apparent from the grounds of the contested decision that it carried out that examination, in the same way as the Cancellation Division, in relation to the average consumer of the relevant public thus defined.

38      In a similar case, it has already been held that the Board of Appeal implicitly accepted the Cancellation Division’s finding on the level of attention of the relevant public (see, to that effect, judgment of 11 December 2014, Sherwin-Williams Sweden v OHIM – Akzo Nobel Coatings International (ARTI), T‑12/13, not published, EU:T:2014:1054, paragraph 51 and the case-law cited). Accordingly, in the present case, it must be held that the Board of Appeal implicitly accepted the Cancellation Division’s finding that the level of attention of the relevant public ranged from average to high.

39      The applicant does not dispute that the relevant public consisted of both the general public and professionals, but submits that the level of attention of that public should be considered to be high, or even particularly high, whereas, according to the contested decision, it ranged from average to high.

40      In that regard, it is appropriate to distinguish two categories within the services at issue.

41      On the one hand, ‘advertising’ and ‘business management’ services in Class 35 are aimed at professionals rather than the general public. Having regard to their nature, it must be held that professionals display a high level of attention when using such services.

42      On the other hand, the other services at issue, such as ‘telecommunications services’, in Class 38, and ‘entertainment services’, ‘sporting and cultural activities’, ‘teaching’ and ‘training’ or ‘education’ services, in Class 41, are aimed at both the general public and professionals. Although professionals display a high level of attention when using such services, that conclusion cannot be extended to the general public. Having regard to their nature, it cannot be held that an average consumer of the general public displays a high level of attention or, a fortiori, a particularly high level of attention when using such services, but rather an average level, especially as regards ‘entertainment services’ and ‘sporting and cultural activities’ in Class 41.

43      In that regard, it should be noted that, according to the case-law, as regards the assessment of the likelihood of confusion, the section of the public with the lowest level of attention must be taken into consideration (see judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraph 29 and the case-law cited).

44      It follows from the foregoing that the level of attention of the relevant public varies from average, as regards the services referred to in paragraph 42 above, to high, as regards the services referred to in paragraph 41 above, depending on the nature and the recipients of the services in question.

45      That conclusion is not called into question by the applicant’s argument that the level of attention of the relevant public, in the case of both the general public and professionals, is particularly high on account of the striking and eye-catching nature of the contested mark. In that regard, it should be borne in mind that, as is apparent from the case-law cited in paragraph 36 above, the relevant factor for the assessment of the level of attention of the relevant public is the category of services at issue and not the nature of the contested mark. The applicant’s line of argument therefore cannot succeed.

46      In the third place, as regards the comparison of the marks at issue, the Board of Appeal found that the contested mark would be perceived by the relevant public solely as the representation of a stylised fish, whereas the earlier mark consisted of a single word element, namely the word ‘blinka’. Consequently, it found that the marks at issue were visually dissimilar. As regards the phonetic comparison, the Board of Appeal found, primarily, that the marks at issue could not be compared in that respect because the contested mark would not be pronounced. In the alternative, it noted that, even if the contested mark were pronounced as ‘fish’, the marks at issue would not be similar. As regards the conceptual comparison, the Board of Appeal concluded that it was not possible to carry out such a comparison because the earlier mark has no meaning.

47      The applicant submits that the marks at issue have an average degree of visual similarity and a high degree of phonetic similarity, but does not dispute the Board of Appeal’s assessment relating to the conceptual comparison of those marks.

48      It should be noted that the applicant’s arguments are based, in essence, on a different assessment from that of the Board of Appeal, in the contested decision, concerning the perception of the contested mark by the relevant public. According to the applicant, that mark will be perceived by that public not only as a representation of a stylised fish, but also as a string of letters, ‘b’, ‘l’, ‘i’, ‘n’ and ‘k’, which forms the body of that fish.

49      According to the case-law, the perception of marks in the mind of the average consumer of the type of goods or services in question plays a decisive role in the global assessment of the likelihood of confusion. In that regard, it should be noted that the average consumer evaluates the sign in a purchasing situation, during which the consumer does not habitually engage in a detailed analysis. Accordingly, not only a sign which is actually impossible to read or decipher must be regarded as illegible, but also a sign which is so difficult to decipher, understand or read that a reasonably observant and circumspect consumer cannot manage to do so without engaging in an analysis which goes beyond what may reasonably be expected of him or her in a purchasing situation (see judgment of 2 July 2008, Stradivarius España v OHIM – Ricci (Stradivari 1715), T‑340/06, not published, EU:T:2008:241, paragraph 34 and the case-law cited).

50      In the present case, the way in which the contested mark is presented does not enable the average consumer, whether it be the general public or professionals, to immediately recognise that that mark may be perceived not only as the representation of a stylised fish, but also as the string of letters ‘b’, ‘l’, ‘i’, ‘n’ and ‘k’. Even if it is not entirely impossible for the average consumer to identify and read that string of letters in the contested mark, that would nevertheless require the average consumer to engage in an analysis which goes far beyond what may reasonably be expected of him or her in a purchasing situation.

51      As the Board of Appeal correctly noted in the contested decision, the average consumer will not generally spend time, in a purchasing situation, trying to analyse whether there are any letters or words hidden in the representation of a fish. Moreover, as EUIPO rightly observed in its response, since the term ‘blink’ has no meaning in German, it is even less likely that an average consumer will identify that word in the contested mark.

52      Consequently, in the light of the case-law cited in paragraph 49 above, the Board of Appeal was correct in finding, first, that the contested mark should be regarded as the representation of a stylised fish and, secondly, that the relevant public would not associate that figurative element with any particular meaning other than that of a fish.

53      That finding is not called into question by the applicant’s arguments.

54      First, the applicant submits that the Board of Appeal wrongly applied the rule that the average consumer does not tend to analyse marks in detail, since that rule applies only to word marks which contain more or less descriptive elements.

55      It should be pointed out that that principle follows from settled case-law which in no way limits its application to word marks containing descriptive elements since that principle has been applied to different types of marks (see, to that effect, judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 23; of 20 September 2017, Jordi Nogues v EUIPO – Grupo Osborne (BADTORO), T‑350/13, EU:T:2017:633, paragraph 23, and of 9 December 2020, Almea v EUIPO – Sanacorp Pharmahandel (Almea), T‑190/20, not published, EU:T:2020:597, paragraph 25).

56      Secondly, on the basis of the explanations in the EUIPO guidelines relating to trade marks and designs (‘the EUIPO guidelines’), the applicant submits that at least a significant part of the relevant public would be able to discern the word ‘blink’ in the contested mark.

57      In that regard, it must be borne in mind that the EUIPO guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48).

58      Moreover, since the decisions which the Boards of Appeal of EUIPO are called on to take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union (judgment of 19 January 2012, OHIM v Nike International, C‑53/11 P, EU:C:2012:27, paragraph 57).

59      Therefore, the applicant’s arguments based on the application of the EUIPO guidelines must be rejected.

60      Thirdly, the applicant claims to have carried out a market survey among the employees of the law firm representing it, from which it emerges that the respondents identified, in the contested mark, not only the representation of a stylised fish, but also the words ‘blink’ or ‘link’.

61      It must be stated that the market survey submitted by the applicant is neither representative nor reliable. As EUIPO correctly contends, that survey does not fulfil the conditions of independence and trustworthiness of sources which must govern such surveys. Furthermore, it is not based on a sample of the relevant public which is representative or sufficiently broad to be reliable. Accordingly, the results of that survey cannot be taken into account for the purposes of the present case.

62      Fourthly, in support of its position, the applicant states that the intention of the designer of the contested mark was, in particular, to create a logo that combined the shape of a fish and the word ‘blink’.

63      In that regard, it must be borne in mind that the determining factor in the light of the scope of protection of the mark is the way in which it will be perceived on the sole basis of the sign as registered (see, to that effect, judgment of 17 January 2018, Deichmann v EUIPO – Munich (Representation of a cross on the side of a sports shoe), T‑68/16, EU:T:2018:7, paragraph 44). As is apparent from the case-law cited in paragraph 30 above, in the context of assessing the likelihood of confusion, the relevant factor is the relevant public’s perception of the signs and not the intention of the designers of those signs. Accordingly, the applicant’s argument in that regard must be rejected as ineffective.

64      Fifthly, the applicant claims that, although the letters ‘b’, ‘l’, ‘i’, ‘n’ and ‘k’ are not written in a regular font in the contested mark, the basic shape of each letter is recognisable and is not very stylised.

65      Even if it is possible to recognise those letters or, at least, most of them, that argument of the applicant does not call into question the conclusion set out in paragraph 50 above that such recognition would require the average consumer of the relevant public to carry out an analysis which goes far beyond what may reasonably be expected of him or her in a purchasing situation. In so far as, in such a situation, such a consumer will, generally, perceive the contested mark solely as a representation of a stylised fish, the degree of stylisation of the letters hidden in its body is not likely to change that perception significantly.

66      In the light of the foregoing, the visual, phonetic and conceptual comparison of the marks at issue must be carried out on the basis of the Board of Appeal’s assessment, in the contested decision, regarding the relevant public’s perception of the contested mark, as referred to in paragraph 52 above.

67      It must be stated, first of all, that the Board of Appeal was correct in finding that there is no visual similarity between the marks at issue given that those marks have nothing in common since the contested mark consists of a representation of a stylised fish, whereas the earlier mark consists of a single word element, namely the word ‘blinka’.

68      Next, the Board of Appeal rightly found that the marks at issue could not be compared phonetically because it is not possible to pronounce the contested mark.

69      Consequently, it is appropriate to uphold the Board of Appeal’s assessment that a conceptual comparison of the marks at issue was not possible since the earlier mark has no meaning.

70      Given that the similarity of the marks is one of the cumulative conditions for the application of Article 8(1)(b) of Regulation 2017/1001 and that no similarity between the marks at issue has been established, it must be held that there is no likelihood of confusion within the meaning of that article, without there being any need to analyse the other factors which are relevant in assessing whether there is a likelihood of confusion.

71      Furthermore, since the applicant’s other arguments, referred to in paragraph 27 above, are based on its incorrect position regarding the perception of the contested mark, they must also be rejected, without there being any need to carry out a more detailed analysis thereof.

72      In the light of the foregoing, the first plea must be rejected and, therefore, the action must be dismissed in its entirety.

 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.

74      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO, the other party not being party to these proceedings.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Wirtschaftsgesellschaft des Kfz-Gewerbes mbH to pay the costs.

Tomljenović

Schalin

Škvařilová-Pelzl

Delivered in open court in Luxembourg on 24 March 2021.

E. Coulon

      S. Papasavvas

Registrar

President

*      Language of the case: English