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

JUDGMENT OF THE GENERAL COURT (Second Chamber)

8 December 2021 (*)

(EU trade mark – Opposition proceedings – Application for the EU word mark GRILLOUMI BURGER – Earlier EU collective word mark HALLOUMI – Relative grounds for refusal – No likelihood of confusion – No detriment to repute – Article 8(1)(b) and Article 8(5) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 8(5) of Regulation (EU) 2017/1001))

In Case T‑595/19,

Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi, established in Nicosia (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, intervener before the General Court, being

Fontana Food AB, established in Tyresö (Sweden), represented by P. Nihlmark and L. Zacharoff, lawyers,

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 19 June 2019 (Case R 1356/2018-4), relating to opposition proceedings between Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi and Fontana Food,

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 application lodged at the Court Registry on 30 August 2019,

having regard to the response of EUIPO lodged at the Court Registry on 25 May 2020,

having regard to the response of the intervener lodged at the Court Registry on 1 November 2019,

having regard to the decision of 24 October 2019 to stay the proceedings,

having regard to the written questions put by the Court to the parties and their answers to those questions lodged at the Court Registry, respectively, on 25, 27 and 30 March 2020,

having regard to the change in composition of the Chambers of the General Court,

further to the hearing on 10 May 2021,

gives the following

Judgment

 Background to the dispute

1        On 25 October 2016, the intervener, Fontana Food AB, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).

2        Registration as a mark was sought for the word sign GRILLOUMI BURGER.

3        The goods and services in respect of which registration was sought are in Classes 29, 30 and 43 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 29: ‘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’;

–        Class 30: ‘Coffee, tea, cocoa and artificial coffee; rice; tapioca and sago; flour and preparations made from cereals; bread, pastry and confectionery; edible ices; sugar, honey, treacle; yeast, baking powder; salt; mustard; vinegar, sauces (condiments); spices; ice’;

–        Class 43: ‘Services for providing food and drink; coffee-shop services; restaurants’.

4        The trade mark application was published in European Union Trade Marks Bulletin No 207/2016 of 2 November 2016.

5        On 2 February 2017, the applicant, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 of this judgment.

6        The opposition was based on the earlier EU collective word mark HALLOUMI, registered on 14 July 2000 under the number 1082965, covering goods in Class 29 corresponding to the following description: ‘cheese’.

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

8        On 16 May 2018, the Opposition Division rejected the opposition and ordered the applicant to pay the costs.

9        On 13 July 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.

10      By decision of 19 June 2019 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal and ordered the applicant to pay the costs incurred for the purposes of the opposition and appeal proceedings.

11      First, the Board of Appeal ruled out the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. In that regard, after noting that it was necessary to take into account the general public in the European Union, which has at most an average level of attention, the Board of Appeal found, first of all, that the services in Class 43 covered by the mark applied for were dissimilar to the ‘cheese’ in Class 29 covered by the earlier mark and that, in relation to those goods, among the goods in Classes 29 and 30 covered by the mark applied for, there was a certain degree of similarity only in respect of ‘milk and milk products, edible oils and fats’.

12      The Board of Appeal then found that the signs at issue had a low degree of visual and phonetic similarity, while noting that there was no conceptual similarity and weak inherent distinctiveness of the earlier mark on account of its descriptive meaning. Lastly, it concluded that there was no likelihood of confusion, taking into account, in particular, the weakness of the inherent distinctive character of the earlier mark and the fact that none of the evidence produced demonstrated the existence of enhanced distinctiveness.

13      Second, as regards the assessment relating to the existence of a risk of unfair advantage being taken of, or detriment to, the distinctive character or the repute of the earlier mark, under Article 8(5) of Regulation 2017/1001, the Board of Appeal found that the evidence produced by the applicant was insufficient to demonstrate the enhanced distinctiveness and, a fortiori, the reputation of the earlier mark, whether in Cyprus or in any other Member State of the European Union. Furthermore, the applicant has not demonstrated, if only prima facie, the existence of a future and not hypothetical risk of unfair advantage being taken of the repute or the distinctive character of the earlier mark or of detriment to its reputation or its distinctive character.

 Forms of order sought

14      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

15      EUIPO and the intervener contend that the Court should:

–        dismiss the action in its entirety;

–        order the applicant to pay the costs.

 Law

16      In view of the date of submission of the application for registration at issue, that is to say, 25 October 2016, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). Furthermore, since, in accordance with 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 proceedings are governed by the procedural provisions of Regulation 2017/1001.

17      Accordingly, in this case, as regards the substantive rules, the references made by the Board of Appeal, in the contested decision, and by the parties, in their arguments, to Article 8(1)(b) and Article 8(5) of Regulation 2017/1001 must be understood as referring to Article 8(1)(b) and Article 8(5) of Regulation No 207/2009.

18      In support of the action, the applicant relies in essence on two pleas in law, the first of which alleges infringement of Article 8(1)(b) of Regulation No 207/2009, and the second, infringement of Article 8(5) of that regulation.

 The first plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009

19      The first plea comprises, in essence, three parts.

20      By the first part, the applicant alleges errors of assessment by the Board of Appeal in the comparison of the goods and services covered by the marks at issue. In the first place, the Board of Appeal is alleged to have found incorrectly that a large part of the goods covered by the mark applied for in Classes 29 and 30 were dissimilar to the ‘cheese’ covered by the earlier mark, whereas the goods in question are all similar. In particular, it failed to give reasons on that point and did not take account of the fact that cheese was frequently and typically served in combination with meat, fish, vegetables or other similar products, with the result that average consumers were accustomed to purchasing those foodstuffs together, which were typically served and consumed in association.

21      In the second place, the Board of Appeal should have taken the view that all the services covered by the mark applied for and the ‘cheese’ covered by the earlier mark were similar, in so far as there was complementarity between them. In that regard, the Board of Appeal’s reasoning is alleged to be erroneous in the light of the following four elements: first of all, it incorrectly applied a criterion of mutual indispensability between the services and goods at issue, whereas it would have been sufficient to state that they could be used or offered together; next, it disregarded the case-law of the Court in which it has been held, regarding foodstuffs, including milk and dairy products, that those goods are necessarily used in the serving of food and drink, with the result that there is complementarity between those services and those goods; in addition, it misapplied the case-law resulting from the judgment of 15 February 2011, Yorma’s v OHIM – Norma Lebensmittelfilialbetrieb (YORMA’S) (T‑213/09, not published, EU:T:2011:37), in relation to the criterion of complementarity; and, lastly, it relied on the incorrect and unsubstantiated finding that there are no cheese restaurants.

22      By the second part, the applicant claims that the Board of Appeal made an incorrect assessment of the similarity of the signs at issue. Admittedly, the Board of Appeal correctly found that, in the mark applied for, the element ‘burger’ was descriptive and had to be accorded only secondary importance. By contrast, the applicant submits that the Board of Appeal should have found that there was, first, a high degree of visual similarity between the signs at issue, in so far as they coincided in the element ‘lloumi’, which is not used in any other Greek or English word, and, second, a high degree of phonetic similarity because the earlier mark and the first element of the mark applied for consist of an identical number of syllables and coincide in the syllables ‘llou’ and ‘mi’. The signs at issue also showed a high degree of conceptual similarity. In that regard, the Board of Appeal incorrectly separated the groups of letters ‘grill’ and ‘oumi’ when it analysed the first element of the mark applied for, whereas it should have found, in essence, that consumers read the group of letters ‘ll’ in that sign as referring both to the words ‘grill’ and ‘lloumi’, which constitutes a play on words. As for the element ‘grill’, it refers to a common method of preparing the cheese covered by the earlier mark.

23      By the third part, the applicant submits that the Board of Appeal also incorrectly assessed the distinctive character of the earlier mark, which distorted the global assessment of the likelihood of confusion.

24      In the first place, the applicant alleges that the Board of Appeal referred to the case-law of the Court relating to applications for an individual EU trade mark. EU collective marks constitute a distinct category of marks, which perform different functions from those of individual marks. By merely mentioning that case-law and by failing to provide a specific statement of reasons, the Board of Appeal also failed to comply with its obligation to state reasons.

25      In the second place, the applicant submits that the Board of Appeal incorrectly held that the earlier mark was descriptive and confined itself to describing a ‘speciality cheese from Cyprus’, which amounted to depriving that mark of distinctive character or acknowledging it as having, at most, only a weak distinctive character. Such an approach led the Board of Appeal incorrectly to assess the characteristics of the earlier mark, as an EU collective mark, and to deprive it of any enforceable character, although it was validly registered with EUIPO. That would lead, contrary to the objectives pursued by Regulation No 207/2009, to the EU collective trade mark regime being disregarded and numerous trade marks in that category being rendered unenforceable, including those which, under Article 66(2) of that regulation (now Article 74(2) of Regulation 2017/1001), are nevertheless expressly authorised to refer to the geographical origin of the goods or services covered by them. According to the applicant, which accepts that the word ‘halloumi’ is not the name of a place, that word nevertheless refers to the geographical origin of the cheese covered by the earlier mark, with the result that a reasoning based on Article 66(2) of Regulation No 207/2009 is relevant as regards that mark.

26      In the third place, the applicant submits that the Board of Appeal erred in its assessment of the evidence, which it referred to in the contested decision in the form of examples. In that regard, when the word ‘halloumi’ is accompanied by a description, as in the expression ‘halloumi – traditional cheese from Cyprus’, that shows that that word is not descriptive in itself, since it would otherwise be pointless to add a description of the product to which it refers.

27      In its observations on the inferences to be drawn from the 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), the applicant further submits that the Court of Justice pointed out the need to carry out a global assessment of the likelihood of confusion, taking account of all the relevant factors. In this case, as regards those factors, the Board of Appeal should have recognised the existence, first, of a high degree of similarity between all the goods and services covered by the mark applied for and the ‘cheese’ covered by the earlier mark and, second, of a certain degree of distinctiveness of the earlier mark which does not preclude a finding of a likelihood of confusion, in particular because, in the mark applied for, the element ‘burger’ would be perceived as non-distinctive, whereas the word ‘grilloumi’, which is preponderant, shares the suffix ‘lloumi’ with the earlier mark. The taking into account of those various factors should have led the Board of Appeal to find that there was a likelihood of confusion.

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

29      Article 8(1)(b) of Regulation No 207/2009 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, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected; the likelihood of confusion includes the likelihood of association with the earlier trade mark.

30      Where the earlier mark is an EU collective mark, the likelihood of confusion must be understood as being the risk that the public might believe that the goods or services covered by that mark and those covered by the trade mark applied for all originate from members of the association which is the proprietor of the earlier trade mark or, as the case may be, from undertakings economically linked to those members or to that association (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 64).

31      Furthermore, where the proprietor of a collective mark brings opposition proceedings, although account must be taken of the essential function of that type of marks, as set out in Article 66(1) of Regulation No 207/2009 (now Article 74(1) of Regulation 2017/1001), in order to understand what is meant by likelihood of confusion, within the meaning of Article 8(1)(b) of that same regulation, 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 collective mark (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).

32      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 September 2016, Sun Cali v EUIPO – Abercrombie & Fitch Europe (SUN CALI), T‑512/15, EU:T:2016:527, paragraph 45 and the case-law cited).

33      It is in the light of those considerations that it is necessary to examine whether the Board of Appeal was right, as regards the marks at issue, to find that there was no likelihood of confusion on the part of the relevant public for the purposes of Article 8(1)(b) of Regulation No 207/2009.

 The relevant public

34      In accordance with the case-law, the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, between two marks at issue should not be assessed on the basis of a comparison of the signs at issue 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).

35      In particular, in accordance with the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of products or services concerned, who is reasonably well informed and reasonably observant and circumspect. Account should be taken of the fact 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).

36      In paragraph 12 of the contested decision, the Board of Appeal noted that the goods and services covered by the marks at issue were directed at the end consumer, who was deemed to be reasonably well informed and reasonably observant and circumspect. It therefore found that, since the earlier mark was an EU collective mark, it was necessary to take into consideration the relevant public consisting of the general public in the European Union, whose level of attention is at most average in relation to the goods and services at issue.

37      Those findings, which appear to be well founded in the light of the evidence in the file and are moreover not disputed by the parties, must be upheld. In so far as the mark applied for covers foodstuffs for everyday consumption and services in everyday use relating, in essence, to services for providing food and drink to private individuals, whereas the earlier mark is also registered for foodstuffs for everyday consumption, in the present case, cheese, those goods and services are all intended for the general public, which, when purchasing them, will show a generally average level of attention (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).

 Comparison of the goods and services covered by the marks at issue

38      In paragraphs 13, 14 and 23 of the contested decision, the Board of Appeal found that only ‘milk and milk products; edible oils and fats’ in Class 29, covered by the mark applied for, were either identical or similar to ‘cheese’ for which the earlier mark was registered, with the result that the examination of the other criteria relating to the existence of a likelihood of confusion was justified only with regard to those goods.

39      By contrast, as regards the other goods in Classes 29 and 30 covered by the mark applied for, the Board of Appeal found, in paragraph 15 of the contested decision, that there was no similarity with the ‘cheese’ covered by the earlier mark.

40      Furthermore, the Board of Appeal found in paragraphs 20 to 23 of the contested decision that, although the services in Class 43 covered by the mark applied for and some foodstuffs could arguably be considered to be similar, in particular when restaurants sold food to take away or to consume at the bar, that did not apply to cheese. According to the Board of Appeal, although the difference between a point of sale for foodstuffs and a self-service restaurant may be fluid, the focus, as regards the services in Class 43, is, however, still on the service nature of a restaurant and not on the sale of a foodstuff itself. It found, in that regard, that, if an establishment containing a restaurant or an area like a self-service restaurant were to sell cheese over the counter, that situation would not relate to ‘restaurant services’, but to the goods as such.

41      The Board of Appeal also found, in essence, that the evidence which the applicant had provided in order to show that some restaurants and catering outlets served predominantly cheese-based meals or offered such meals for immediate consumption were insufficient to prove that, from the point of view of the relevant public, the services for providing food and drink and restaurant services at issue and the cheese served in those premises were, in the light of their complementarity, similar. It found, in essence, that there was no indication that consumers would perceive a common origin between the services provided by those providers and the cheese that they serve.

42      In the present case, it is necessary to examine whether the Board of Appeal was right in finding that, except as regards ‘milk and milk products; edible oils and fats’, in Class 29, the goods and services covered by the mark applied for and the goods covered by the earlier mark were dissimilar, with the result that the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 had to be ruled out at the outset.

43      In accordance with 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, including, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as, for example, 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).

44      First, as regards the comparison between the goods in Classes 29 and 30, covered by the mark applied for, and the goods covered by the earlier mark, it must, first of all, be noted that, although goods such as, in the present case, ‘cheese’, which is covered by the earlier mark, on the one hand, and all the goods covered by the mark applied for, on the other, belong to the general category of foodstuffs intended for human consumption, that fact alone cannot make those products 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).

45      Next, in so far as the ‘cheese’ covered by the earlier mark is made from milk, with the result that it falls within the category of milk products, it appears that its nature, intended purpose and method of use, as well as its method of distribution, does not differ fundamentally from those of ‘milk’ and ‘milk products’ in Class 29 covered by the mark applied for. It must therefore be held, as the Board of Appeal did (see paragraph 13 of the contested decision), that the ‘milk’ covered by the mark applied for and the ‘cheese’ covered by the earlier mark are similar, since the degree of similarity between them may be regarded as high, and that the ‘milk products’ covered by the mark applied for are identical to ‘cheese’.

46      Furthermore, as regards the ‘edible oils and fats’ in Class 29 covered by the mark applied for, they include products of both plant origin, such as margarine, and of animal origin, such as butter, which is itself a dairy product of a similar nature to cheese, and which is generally marketed close to it. Accordingly, it must be held that those goods, in the light of their composition and method of distribution, and the ‘cheese’ covered by the earlier mark, have a degree of similarity, which may be considered to be average.

47      In addition, as regards the goods ‘meat, fish, poultry and game; meat extracts’ in Class 29 covered by the mark applied for, they are products of animal origin, derived from wild or farmed animals’ muscular tissues. Admittedly, those goods are not identical to the ‘cheese’ covered by the earlier mark. However, the Court has already held that such products, in particular those which, like meat, ham, cold meats, cold dishes and preserved meat, belong to the category of cold cuts products, may be regarded as similar to cheese and milk products, on account of their identical nature and purpose and 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).

48      That finding may extend to the ‘fish’, ‘poultry’ and ‘game’ in Class 29 covered by the mark applied for. Those goods and the ‘cheese’ covered by the earlier mark have common characteristics, as foodstuffs composed of proteins of animal origin, they may be prepared and consumed together as ingredients of various dishes, and their distribution channels may be identical, in particular in the food shelves of supermarkets, where they are frequently sold in close proximity to each other.

49      The Board of Appeal therefore erred in finding that all of those goods were dissimilar from ‘cheese’ covered by the earlier mark, whereas it should have found that there was a degree of similarity, which could be regarded as low.

50      As regards ‘eggs’ in Class 29 covered by the mark applied for, they are admittedly goods of animal origin such as cheese. However, eggs and cheese are derived from different animals. In addition, eggs have a specific nutritional use and are generally marketed on specific shelves and in specific packaging on account of their fragility. Thus, although they belong to the category of foodstuffs of animal origin, the ‘eggs’ covered by the mark applied for must nevertheless be regarded as dissimilar from the ‘cheese’ covered by the earlier mark.

51      Furthermore, in so far as the ‘cheese’ covered by the earlier mark cannot be assimilated to all ‘milk products’ in general, but only to a specific dairy product, it cannot be held that that mark refers to a category of goods capable of including all products made of milk or related to milk. In those circumstances, the Board of Appeal correctly found that there was no similarity between the ‘cheese’ covered by the earlier mark and ‘edible ices; coffee, tea, cocoa and artificial coffee’ in Class 30, covered by the mark applied for. Both ‘edible ices’, which requires particular conservation conditions, and ‘coffee, tea, cocoa and artificial coffee’, which correspond to ingredients intended for beverage preparation, differ from ‘cheese’ by their intended use as foodstuffs, and for the latter, in terms of their composition, since, in principle, although they can be consumed together with milk, they are not directly derived from milk products.

52      Lastly, as regards, first, ‘preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes’ in Class 29 covered by the mark applied for, and ‘rice; tapioca and sago; flour and preparation made from cereals; bread, pastry products and confectionery; sugar, honey, treacle; yeast, baking powder; salt; mustard; vinegar, sauces (condiments); spices’ in Class 30 covered by the mark applied for, which are foodstuffs, for the most part, of vegetable origin, they do not generally contain milk or cheese, have a specific nature linked in particular to their preservation characteristics, since they are not fresh products, with the exception of certain pastries, and are therefore marketed on specific shelves. The Board of Appeal was therefore entitled to find that those goods were dissimilar to the ‘cheese’ covered by the earlier mark. Such considerations also apply, in essence, to ‘ice (frozen water)’ in Class 30, covered by the mark applied for, it being also stated that ice is necessarily stored under particular temperature conditions, which differ from those of ‘cheese’.

53      Second, as regards the comparison between, on the one hand, the services covered by the mark applied for, which correspond to services for providing food and drink, restaurant services and coffee-shop services in Class 43, and, on the other, the ‘cheese’ covered by the earlier mark, which falls within the broader category of the foodstuffs in Class 29, the Board of Appeal was entitled, without committing any error and as it had, moreover, been requested to do by the applicant, to examine whether there was a similarity on account of their complementarity rather than on account of factors such as their nature, their intended purpose or their method of use. The goods and services at issue are not identical and it is indisputable that, in the light of the factors relating to their nature, their intended purpose or their method of use, they are not similar (see, to that effect, judgment of 18 February 2016, Harrys Pubar and Harry’s New York Bar v OHIM – Harry’s New York Bar and Harrys Pubar (HARRY’S BAR), T‑711/13 and T‑716/13, not published, EU:T:2016:82, paragraph 58 and the case-law cited).

54      Although the criterion of complementarity of the goods and services at issue represents only one factor among several others – such as the nature, use or distribution channels of those goods or services – in the light of which their similarity can be assessed, the fact remains that it is an autonomous criterion capable of being the sole basis for the existence of such a similarity (see, to that effect, judgment of 21 January 2016, Hesse v OHIM, C‑50/15 P, EU:C:2016:34, paragraph 23).

55      In that regard, it must be borne in mind that goods and services are complementary where they are closely connected in the sense that one is indispensable or important for using the other, so that consumers may think that the same undertaking is responsible for manufacturing those goods or for providing those services (see, to that effect, judgment of 4 February 2013, Hartmann v OHIM – Protecsom (DIGNITUDE), T‑504/11, not published, EU:T:2013:57, paragraph 44 and the case-law cited).

56      As is apparent from the case-law of the Court, it must be stated that the goods in Class 29, inter alia, cheese, are necessarily used in the serving of food and drink, with the result that those services and those goods are complementary. First, cheese may be offered to the clientele of many restaurants, or even of coffee shops, by being incorporated as an ingredient in dishes that are intended to be sold on the premises or to be taken away. Secondly, cheese, without being processed as an ingredient, may be sold as is to consumers, in particular in restaurants in which the activity is not confined to the preparation and serving of cooked dishes, but also consists of selling food which is intended to be consumed away from the place in which it is sold. Such goods are therefore used in and offered by means of services for providing food and drink, restaurant services or coffee-shop services. Those goods are consequently closely connected with those services (see, to that effect, judgments of 13 April 2011, Bodegas y Viñedos Puerta de Labastida v OHIM – Unión de Cosecheros de Labastida (PUERTA DE LABASTIDA), T‑345/09, not published, EU:T:2011:173, paragraph 52, and of 18 February 2016, HARRY’S BAR, T‑711/13 and T‑716/13, not published, EU:T:2016:82, paragraph 59 and the case-law cited).

57      In the light of those considerations, it must be held, contrary to what the Board of Appeal found, that the complementarity between cheese and services for providing food and drink, restaurant services and coffee-shop services must lead to the finding that there is a certain degree of similarity between, on the one hand, the ‘services for providing food and drink; coffee-shop services; restaurants’ in Class 43 covered by the mark applied for and, on the other, the ‘cheese’ in Class 29 covered by the earlier mark. However, that degree of similarity must be classified as weak, in so far as, first, the nature of the services and goods at issue is obviously different, because the former are fungible and the latter are not (see, to that effect, judgment of 24 January 2019, Brown Street Holdings v EUIPO – Enesan (FIGHT LIFE), T‑800/17, not published, EU:T:2019:31, paragraph 25 and the case-law cited), and, second, ‘services for providing food and drink; coffee-shop services; restaurants’ in Class 43 covered by the mark applied for can be complementary to a wide range of food products, of which cheese forms only a part.

58      However, the existence of such a similarity means that the possibility that the relevant public might be led to think that the services and the goods at issue have the same commercial origin cannot be ruled out at the outset.

59      In the light of the foregoing considerations, the second complaint of the first part of the first plea in law must be held to be well founded and the first complaint of that part must be held to be partially well founded, in so far as the Board of Appeal committed several errors in the comparison of the goods and services covered by the mark at issue.

60      The global assessment of the likelihood of confusion should therefore have been continued in respect of ‘meat, fish, poultry and game; meat extracts’ in Class 29 and the services in Class 43 covered by the mark applied for, as was the case for the other goods covered by that mark in respect of which identity or a certain degree of similarity with the ‘cheese’ covered by the earlier mark has been accepted. The possible consequences of those errors in the light of the lawfulness of the contested decision will be examined in the context of the global assessment of the likelihood of confusion, which will be carried out below.

61      By contrast, in so far as the Court was able to review the grounds on which the contested decision was based as regards the comparison of the goods and services at issue and to note errors in those grounds, it is necessary to reject the applicant’s argument that the relevant part of that decision is affected by a failure to state reasons as regards the comparison of the goods and services covered by the marks at issue.

 The distinctive character of the earlier mark

62      It must be borne in mind that, in the 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, paragraphs 70, 72 and 73), the Court of Justice noted that the degree of distinctiveness of an earlier mark determines the scope of the protection conferred by that mark and that EU collective trade marks must have distinctive character, whether intrinsically or through use, since Article 66(2) of Regulation No 207/2009 does not constitute an exception to that distinctive character. Although that provision authorised, by way of derogation from Article 7(1)(c) of Regulation No 207/2009 (now Article 7(1)(c) of Regulation 2017/1001), registration as EU collective marks of signs which may serve to refer to the geographical origin of goods or services, it did not permit signs thus registered to be devoid of distinctive character. Thus, where an association applies for registration, as an EU collective mark, of a sign capable of referring to a geographical origin, it is for that association to ensure that that sign is provided with elements which enable the consumer to distinguish the goods or services of its members from those of other undertakings.

63      In that regard, the Court has already held that the registration of a sign as a collective mark cannot, in itself, give rise to a presumption of average distinctiveness (judgment of 13 June 2012, Organismos Kypriakis Galaktokomikis Viomichanias v OHIM – Garmo (HELLIM), T‑534/10, EU:T:2012:292, paragraph 52).

64      Furthermore, although, by analogy with the solutions adopted in the judgments of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314, paragraphs 43 to 47), and of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE) (T‑602/19, not published, EU:T:2020:463, paragraph 65), in respect of validly registered earlier rights such as a national trade mark or an international registration designating the European Union, an EU collective mark should be acknowledged as having a certain degree of distinctiveness merely because it has been registered, it is for the proprietor of such a mark to demonstrate the level of distinctiveness since he or she intends to rely on that distinctiveness in opposition or even cancellation proceedings. It must be recalled that, in accordance with Article 95(1) of Regulation 2017/1001, the burden of proof, before EUIPO, lies in that regard with the opponent concerned (see, to that effect, judgment of 6 December 2017, Tulliallan Burlington v EUIPO – Burlington Fashion (BURLINGTON), T‑123/16, not published, EU:T:2017:870, paragraph 60 and the case-law cited).

65      In paragraphs 30 to 37 of the contested decision, the Board of Appeal found, in essence, that, first, on account of its descriptive character, the inherent distinctive character of the earlier mark was weak with respect to ‘cheese’. Second, any enhanced distinctiveness acquired through use by the relevant public was not demonstrated in the light of the evidence produced by the applicant, which, for the most part, merely related to halloumi cheese, only some of which concerned the HALLOUMI mark as an EU collective mark.

66      In the present case, it is common ground, first of all, that the earlier mark consists only of the word ‘halloumi’. That word corresponds to the generic name of a type of cheese produced in Cyprus. Therefore, in view of the descriptive character of the single word of which it is composed, the earlier mark has an inherent distinctive character which must be regarded as weak.

67      In that regard, in paragraph 71 of the 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), the Court of Justice recalled that the distinctive character of the EU collective word mark HALLOUMI, which also corresponds to the earlier mark in the present case, did not have to be assessed in a particular way on the ground that it was a collective mark and, in paragraph 76 of that judgment, that there was no need to call into question the assessment made by the General Court in the judgment of 25 September 2018, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO – M. J. Dairies (BBQLOUMI) (T‑328/17, not published, EU:T:2018:594), that the mark was of weak distinctiveness. In those circumstances, the Board of Appeal cannot be criticised, when assessing the inherent distinctive character of the earlier mark, for having referred to decisions of the General Court, which concerned earlier rights also composed of the single word ‘halloumi’, as individual or certification marks, in proceedings relating to applications for registration or opposition, since the assessment of the distinctive character of the rights in question met criteria which could perfectly well be applied in the present case.

68      Contrary to what the applicant claims, that does not amount to denying the very existence of the distinctive character of a validly registered trade mark or to disregarding the rights which it confers on its proprietor, but merely to finding that it cannot confer more rights than those which it objectively derives from its distinctive character. Furthermore, it should also be borne in mind that, even in a case involving an earlier mark of weak distinctive character, there may be a likelihood of confusion, in particular, where the goods in question are identical and the signs at issue are similar (see judgment of 13 Avril 2011, Sociedad Agricola Requingua v OHIM – Consejo Regulador de la Denominación de Origen Toro (TORO DE PIEDRA), T‑358/09, not published, EU:T:2011:174, paragraph 45 and the case-law cited).

69      Next, it must be held that there is nothing in the applicant’s argument capable of calling into question the finding set out in paragraph 35 of the contested decision that, among the evidence produced by the applicant, only some of them referred to the earlier mark as a collective mark, without, moreover, mentioning the applicant or one of its members. The examination of the file produced before the Board of Appeal shows that the other evidence which has been provided contains almost only references to the word ‘halloumi’ as a speciality cheese from Cyprus. That evidence does not therefore make it possible to take the view that consumers, faced with the earlier mark, will associate it with something other than halloumi cheese, in view of the fact that it refers to the generic name of that type of cheese, rather than to the commercial origin of the goods in so far as they come from members of the association which is the proprietor of that mark or, as the case may be, from undertakings economically linked to those members or to that association.

70      It must also be pointed out, as regards the applicant’s argument relating to the need to protect EU collective marks which, under the provisions of Article 66(2) of Regulation No 207/2009, are expressly authorised to refer to the geographical origin of the goods or services to which they relate, that the Court of Justice noted, in paragraph 74 of the 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), that, even if it were assumed that the EU collective mark HALLOUMI implicitly refers to the Cypriot geographical origin of the goods covered, it must nevertheless fulfil its essential function, namely to distinguish the products or services of the members of the association who owns it from those of other companies. The generic nature of the word ‘halloumi’, since that word makes up by itself the earlier mark, necessarily limits the effects of that mark as regards that function.

71      For the sake of completeness, it should be noted, as stated in the Opinion of Advocate General Kokott in the case Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO (C‑766/18 P, EU:C:2019:881, point 86), that the need for more extensive protection on the basis of EU trade mark law does not exist in the present case, since the provisions on protected designations of origin and protected geographical indications, as laid down in Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1) may ensure sufficient protection, independently of that law.

72      In those circumstances, it is necessary to reject the argument, put forward in the context of the third part, that, when assessing the criteria relevant to the global assessment of the likelihood of confusion, the earlier mark was found to have a purely descriptive character, and to find that the Board of Appeal was entitled to hold that, on account of its descriptive meaning, the earlier mark was of weak inherent distinctiveness and that there was nothing to suggest that it had acquired enhanced distinctiveness on account of its long-standing use.

 Analysis of the elements making up the mark applied for

73      In paragraph 26 of the contested decision, the Board of Appeal analysed the mark applied for, stating that that mark consisted of two words, the first of which, ‘grilloumi’, was the most distinctive element, given that it was a meaningless fanciful word, whereas the second, ‘burger’, would be perceived by the relevant public as referring to a bread roll containing fried or grilled food, generally identified by the first part of the compound word which is found in, for example, the words ‘hamburger’, ‘beefburger’ or ‘cheeseburger’.

74      Those findings of the Board of Appeal are not expressly disputed by the parties.

75      The applicant states, however, that the element ‘grilloumi’ should be regarded as the dominant element of the mark applied for and that it is necessary to attach only very low importance to the element ‘burger’ in view of its descriptive character.

76      In that regard, it must first be held that the Board of Appeal’s assessment that the word ‘grilloumi’ is original and fanciful, which contributes to its distinctiveness, cannot be upheld.

77      It cannot be ruled out that, to a certain extent, the mark applied for conveys a concept that has a connection with the concept of Cypriot cheese halloumi, conveyed by the earlier mark.

78      For the part of the relevant public which is familiar with halloumi cheese, in this case, a not insignificant part of the general public of the European Union, since the material in the file has established that significant quantities of halloumi were sold in several Member States, the word ‘grilloumi’, the final part of which, ‘lloumi’, is identical to that of the word ‘halloumi’, may be understood as referring to the concept of grilled halloumi cheese. However, it cannot be ruled out that consumers also perceive the play on words due to the fact that the element ‘ll’ of the word ‘grilloumi’ refers both to the words ‘grill’ and ‘halloumi’, which is capable of conferring on it an original character. In the light of those findings, it must be held that the word ‘grilloumi’, in so far as it is one of the elements of a mark covering foodstuffs and food services, has a degree of distinctiveness which may be regarded as weak.

79      Next, the word ‘burger’ must not, however, be considered to be totally negligible. While it is descriptive in that, as the Board of Appeal noted, it covers a bread roll containing fried or grilled food, it is commonly found in combination with another word which specifies the type of food contained in the bread in question.

80      It must be borne in mind that, although, as a general rule, the public will not consider a descriptive element forming part of a composite mark as the distinctive and dominant element of the overall impression conveyed by that mark, that does not mean that a descriptive element of a mark is necessarily negligible in the overall impression produced by it. It is necessary, in particular, to examine whether other elements of the mark are likely to dominate, by themselves, the relevant public’s recollection of that mark (see judgment of 28 November 2017, Laboratorios Ern v EUIPO – Sharma (NRIM Life Sciences), T‑909/16, not published, EU:T:2017:843, paragraph 34 and the case-law cited).

81      In this case, to the extent that, as the Board of Appeal noted, the relevant public has already been confronted with word combinations made up of the word ‘burger’ combined with another word, it will perceive that word, in the mark applied for, as a possible indication of a food composition associating a bread roll with other food.

82      Thus, although the word ‘burger’, taken in isolation, has no particular distinctive character in that it relates to foodstuffs, the position is different here inasmuch as it is associated with the word ‘grilloumi’, with which it forms a combination with a certain degree of originality. It must therefore be held that it is not purely descriptive and that it has at least a certain degree of distinctiveness, which must be classified as weak, in view of its association with the word ‘grilloumi’.

83      Lastly, it must be added that, in accordance with settled case-law, as far as marks containing word elements are concerned, consumers generally pay greater attention to the beginning of a mark than to the end (see judgment of 14 January 2016, The Cookware Company v OHIM – Fissler (VITA+VERDE), T‑535/14, not published, EU:T:2016:2, paragraph 61 and the case-law cited).

84      Accordingly, even though not expressly stated by the Board of Appeal, the word ‘grilloumi’, by its position at the beginning of the sign constituting the mark applied for and its more distinctive character than the word ‘burger’, with which it is associated in that sign, must be regarded as the most important element in the perception of that sign by the relevant public, as the applicant in essence submits.

 The comparison of the signs

85      The global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the signs in question, must be based on the overall impression given by them, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

86      In this case, the earlier mark is composed of the word ‘halloumi’, whereas the mark applied for consists of the two words ‘grilloumi’ and ‘burger’.

87      As regards the visual comparison of the marks at issue, the Board of Appeal found, in paragraph 27 of the contested decision, that their similarity was low. In that regard, it found that that similarity was due only to the coincidence of the signs at issue in the group of letters ‘lloumi’. In so far as the word ‘grilloumi’ is unique and fanciful, regardless of whether the word ‘grill’ is understood, the sign constituting the mark applied for will be regarded as a whole and the first letters making up the word ‘grill’, with no equivalent in the earlier sign, are not disregarded. Furthermore, irrespective of whether the word ‘burger’ is seen as referring to bread rolls or buns, it is not negligible and nor will it be ignored visually.

88      It must be held that the applicant’s arguments do not make it possible to call into question the findings made, in essence, by the Board of Appeal. Although the word ‘grilloumi’ does indeed correspond to a combination of the word ‘grill’ and the group of letters ‘oumi’, a group of letters which is also present at the end of the word ‘halloumi’, it is nevertheless a word with a certain degree of originality, although weak, but in which the word ‘grill’ will not be disregarded by the public, in particular because the beginning of a word mark is more likely to attract the attention of the consumer than the rest of the mark (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 59). Furthermore, the second word of which the mark applied for consists, ‘burger’, also plays a role in differentiating between the signs at issue because, first, it is absent from the earlier mark and, second, the public is used to expressions or words formed by a combination including the word ‘burger’ (such as, for example, in the words ‘hamburger’, ‘beefburger’ or ‘cheeseburger’). The visual similarity between the mark applied for and the earlier mark is therefore low.

89      As regards the phonetic comparison of the signs at issue, the Board of Appeal found, in paragraph 28 of the contested decision, that their similarity was also low in that respect. It found that the sign of which the mark applied for consists is likely to be pronounced as a whole, because consumers are accustomed to using the word ‘burger’ preceded by a word indicating what that ‘burger’ contains, even though, in the present case, it is a fanciful and meaningless word. Thus, the signs differ in their first syllables, ‘ha’ and ‘gri’, and by the last syllables of the sign comprising the mark applied for, ‘bur’ and ‘ger’, with the result that, out of the five syllables of the latter sign, only the two syllables in the middle, ‘lou’ and ‘mi’ are similar to syllables of the sign constituting the earlier mark.

90      That assessment by the Board of Appeal may, in essence, be upheld. The common presence of two contiguous syllables in each of the signs at issue leads to some similarity, but, on the other hand, those signs differ significantly in other respects, in particular because the sign constituting the mark applied for is longer than the sign of which the earlier mark consists, and when the public is called upon to pronounce it, it will in all likelihood pronounce the two words of which it consists, and therefore also pronounce the word ‘burger’, which will help to differentiate it from the sign making up the earlier mark.

91      Conceptually, the Board of Appeal found, in paragraph 29 of the contested decision, that it was not possible to make a comparison because the first element of the sign constituting the mark applied for, ‘grilloumi’, is meaningless and that, in so far as the meaning of the word ‘grill’ is perceived by consumers, it is different from that of the word ‘halloumi’. Moreover, there is nothing to indicate that, in either of the relevant languages, the group of letters ‘oumi’ would be perceived as an abbreviated form of the word ‘halloumi’.

92      The Board of Appeal’s analysis cannot, however, be followed, in so far as it is incorrect to consider that the final part of the word ‘grilloumi’, in the mark applied for, will not be understood by a significant part of that relevant public as referring to halloumi cheese. For that part of the public, the association of the group of letters ‘oumi’ with the word ‘grill’ is therefore likely to refer to the concept of grilled halloumi cheese. While it is true that the concept conveyed by the word ‘burger’ in the mark applied for has no equivalent in the earlier mark, which helps to distinguish them, it must nevertheless be held that the concept of halloumi cheese to which, to a certain extent, the mark applied for refers, is likely to entail a certain degree of conceptual similarity, which must be classified as low.

93      It must therefore be held that the second part of the first plea is partially well founded, in so far as the Board of Appeal erred in its conceptual comparison of the signs at issue. The possible effect of that error on the lawfulness of the contested decision will be examined below, at the stage of the global assessment of the likelihood of confusion.

 Assessment of the global likelihood of confusion

94      The global assessment implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, 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).

95      In the present case, it should be recalled that, in paragraph 42 of the contested decision, the Board of Appeal concluded that, although the signs at issue coincided in the group of letters ‘lloumi’, they differed overall in terms of the distinctive element of the sign constituting the mark applied for, namely the single fanciful word ‘grilloumi’, which did not appear in the sign constituting the earlier mark and did not constitute a distinctive element of that sign. In view of the weak distinctive character of the earlier mark, the differences between the signs at issue were sufficient to distinguish them with certainty, even for identical goods, and there was no likelihood of confusion.

96      In that regard, since 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 upheld as regards ‘preserved, frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs’ in Class 29 covered by the mark applied for, as well as all the goods in Class 30 covered by the mark applied for, since they are dissimilar to the ‘cheese’ covered by the earlier mark.

97      By contrast, as regards the other goods and services covered by the mark applied for, which are identical or similar, to varying degrees, to the ‘cheese’ covered by the earlier mark, the existence of a likelihood of confusion cannot be ruled out at the outset, with the result that the global assessment of that likelihood must be carried out in the light of all the relevant factors.

98      First, as regards the factor relating to the similarity of the signs at issue, that factor relates to the presence in the mark applied for of the group of letters ‘lloumi’ appearing in the word ‘halloumi’, which makes up the earlier mark, which is the source of a low degree of visual, phonetic and conceptual similarity.

99      However, those considerations must be seen in the light of the fact that, when the relevant public is faced with the sign constituting the mark applied for, the most important element in the perception of that sign, namely ‘grilloumi’, will appear to it as displaying a certain degree of originality, which, although weak, will be reinforced by the presence of the word ‘burger’, which plays a non-negligible differentiating role, since it is absent from the earlier mark and its combination with the word ‘grilloumi’ also has, as such, a certain degree of originality.

100    The word ‘halloumi’, which is the sole element of the earlier mark only enjoys, in itself, a weak inherent distinctive character. While the recognition of the weak distinctive character of an earlier mark does not in itself preclude a finding of 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), the fact remains that, where the elements of similarity between two signs arise from the fact that they share a component which has a weak distinctive character, 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).

101    In those circumstances, the low degree of similarity between the signs at issue is unlikely to contribute to the existence of a likelihood of confusion. Those signs coincide in one element, in the present case, the group of letters ‘lloumi’ which, in so far as it will be perceived in the sign constituting the mark applied for as referring to halloumi cheese, will be understood by the relevant public as a mere reference to that cheese and, therefore, as the type of goods covered by the earlier mark.

102    Second, as regards the distinctive character of the earlier mark, that mark has a low degree of inherent distinctiveness. Moreover, the applicant has not demonstrated the existence of enhanced distinctiveness acquired through use, in so far as the evidence put before the Court does not make it possible to find that the relevant public, faced with the earlier mark, will associate it with something other than halloumi cheese, having regard to the fact that it refers to the generic name of that type of cheese rather than to the commercial origin of the goods to which it refers, as originating from persons authorised by its proprietor to use that mark or, where appropriate, from undertakings economically linked to those persons or that proprietor.

103    In those circumstances, the level of protection conferred by the earlier mark, having regard to its low degree of inherent distinctiveness, must, in itself, be low.

104    Third, it is necessary to take account of the fact that the ‘milk products’ covered by the mark applied for are identical to the goods covered by the earlier mark and that those goods and some of the goods covered by the mark applied for, namely ‘edible oils and fats’ and ‘meat, fish, poultry and game; meat extracts’ are similar to different degrees.

105    In that regard, it must be borne in mind that all the goods at issue are everyday consumer goods, in respect of which the relevant public will display an average level of attention at the time of purchase.

106    It can be inferred that there is a likelihood of confusion only if the relevant public is likely to be misled as to the commercial origin of the goods covered by the mark applied for.

107    In this case, that likelihood does not appear to have been demonstrated, even in respect of the ‘milk and milk products’ covered by the mark applied for, which are similar or identical to the ‘cheese’ covered by the earlier mark.

108    When the relevant public comes into contact with the mark applied for and assuming that it also pays attention to the group of letters ‘lloumi’ contained in that mark, or even that it perceives that that group of letters is capable of referring to the concept of halloumi cheese, it will not perceive a connection between that mark and the earlier mark, since, on the one hand, it will perceive, at most, a connection between that mark and the goods which it covers, namely ‘cheese’, and on the other, the marks at issue, considered as a whole, only have a low degree of similarity.

109    In the light of all the foregoing considerations, it must be held that, notwithstanding the errors which it made, first, in the comparison of the goods and services covered by the marks at issue, and, second, in the comparison of those marks, the Board of Appeal was entitled to find, in this case, that there was no likelihood of confusion.

110    Consequently, the first plea in law must be dismissed as unfounded.

 The second plea in law, alleging infringement of Article 8(5) of Regulation No 207/2009

111    The second plea is divided into two parts.

112    In the first part, the applicant disputes the Board of Appeal’s assessment that the existence of a risk, future and not hypothetical, of unfair advantage being taken of the distinctive character of the earlier mark, or of damage to its distinctive character, has not been demonstrated, even prima facie. In paragraph 20 of its statement before the Board of Appeal, the applicant expressly referred to its observations of 10 August 2017 before the Opposition Division, in which it set out the heads of damage on which it intended to rely. According to the applicant, the Board of Appeal therefore failed to take those observations into consideration. Had it done so, it would have considered the applicant’s claims arising from Article 8(5) of Regulation No 207/2009 to be well founded.

113    In the second part, the applicant submits that the Board of Appeal also erred in finding that it had not been established that the earlier mark had a reputation. However, the evidence submitted was sufficient, first, to prove that fact and, second, to show that the relevant public knew that mark as a registered collective mark, although there was no obligation in that regard in order to implement Article 8(5) of Regulation No 207/2009. Nor is there any requirement, in order to establish the acquired distinctiveness or reputation of a mark for the purposes of that provision, to prove that the relevant public knew that the mark in question is a registered trade mark in the European Union.

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

115    Article 8(5) of Regulation No 207/2009 provides that upon opposition by the proprietor of an earlier trade mark within the meaning of paragraph 2 thereof, the trade mark applied for is not to be registered where it is identical with, or similar to, the earlier trade mark and it is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered, where, in the case of an earlier EU trade mark, it has a reputation in the European Union and, in the case of an earlier national trade mark, it has a reputation in the Member State concerned and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.

116    For an earlier trade mark to be afforded the broader protection under Article 8(5) of Regulation No 207/2009, a number of conditions must, therefore, be satisfied. First, the earlier trade mark and the mark applied for must be identical or similar. Secondly, the earlier trade mark must have a reputation in the European Union, in the case of an earlier EU trade mark, or in the Member State concerned, in the case of an earlier national trade mark. Thirdly, the use without due cause of the mark applied for must lead to the risk that unfair advantage might be taken of the distinctive character or the repute of the earlier trade mark or that it might be detrimental to the distinctive character or the repute of the earlier trade mark. As those conditions are cumulative, failure to satisfy one of them is sufficient to render that provision inapplicable (see judgment of 31 May 2017, Alma-The Soul of Italian Wine v EUIPO – Miguel Torres (SOTTO IL SOLE ITALIANO SOTTO il SOLE), T‑637/15, EU:T:2017:371, paragraph 29 and the case-law cited).

117    In this case, it is appropriate to begin by examining the second condition, relating to the existence of a reputation of the earlier mark in the European Union.

118    In paragraphs 46 and 51 of the contested decision, the Board of Appeal found that, in the absence of evidence sufficient to prove enhanced distinctiveness let alone reputation of the mark in relation to production standards which the applicant imposes on its members, there could be no detriment. It found that consumers who purchase halloumi cheese would not be able to distinguish the regulated quality, since, in essence, they perceive the word ‘halloumi’ at most as covering a particular type of cheese produced in Cyprus, and not as referring to a mark. Furthermore, non-compliance with the regulations governing the use of the earlier collective mark would not constitute a ground for opposition and would not depend on the perception of the target consumer.

119    The Board of Appeal’s appraisal must be upheld. In that regard, in the context of the examination of possible distinctiveness acquired through use of the earlier mark, and as is apparent from paragraphs 33 to 36 and 40 of the contested decision, the Board of Appeal carried out a detailed examination of the evidence which the applicant had produced in order to demonstrate that the earlier mark, owing to its long-standing use, had acquired enhanced distinctiveness, which may have contributed to establishing that it enjoyed a certain level of reputation with the relevant public of the European Union.

120    The Board of Appeal noted that, among the various documents which had been produced before the Opposition Division, and among the supplementary evidence produced before it, very few related to HALLOUMI as an EU collective mark. It found that all of the other documents related to halloumi cheese as a speciality cheese produced in Cyprus and merely proved use of the word ‘halloumi’ in relation to that cheese, without it being possible to infer therefrom that the relevant public would have perceived it otherwise than as a description of the characteristics of a particular type of cheese.

121    In the light of the foregoing, it must be held that the condition relating to the fact that the earlier mark must have a reputation in the European Union is not satisfied.

122    Since one of the conditions necessary for the application of Article 8(5) of Regulation No 207/2009 is not satisfied, the enhanced protection granted to an earlier trade mark under that provision cannot validly be relied on.

123    Accordingly, without it being necessary to examine the first part, relating to the condition concerning the existence of a risk, future and not hypothetical, of unfair advantage being taken of, or detriment to, the distinctive character of the earlier mark, the second plea in law must be dismissed as unfounded and, therefore, the action must be dismissed in its entirety.

 Costs

124    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

125    In the present case, since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by EUIPO and the intervener, in accordance with the forms of order sought by those parties.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi to pay the costs.

Delivered in open court in Luxembourg on 8 December 2021.

*      Language of the case: English.

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