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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

23 March 2022 (*)

(EU trade mark – Opposition proceedings – Application for the EU word mark DELTATIC – Earlier EU word mark DELTA – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Genuine use of the earlier mark – Article 18(1), second subparagraph, point (a), and Article 47(2) of Regulation 2017/1001 – Form differing in elements which do not alter the distinctive character)

In Case T‑146/21,

Vetpharma Animal Health, SL, established in Barcelona (Spain), represented by M. Escudero Pérez, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Deltavit, established in Janzé (France), represented by G. Barbaut, lawyer,

ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 21 December 2020 (Case R 776/2020‑5), relating to opposition proceedings between Deltavit and Vetpharma Animal Health,

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira, President, M. Kancheva and P. Zilgalvis (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 15 March 2021,

having regard to the response of EUIPO lodged at the Court Registry on 31 May 2021,

having regard to the response of the intervener lodged at the Court Registry on 14 June 2021,

having regard to the reassignment of the case to a new Judge-Rapporteur following the death of Judge B. Berke on 1 August 2021,

having regard to the designation of another judge to complete the Chamber as a result of one of its Members being prevented from acting,

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

I.      Background to the dispute

1        On 13 February 2018, the applicant, Vetpharma Animal Health, SL, filed an application for registration of an EU 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 word sign DELTATIC.

3        The goods in respect of which registration was sought are in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Veterinary preparations based on deltamethrin’.

4        The trade mark application was published in European Union Trade Marks Bulletin No 71/2018 of 16 April 2018.

5        On 16 July 2018, the intervener, Deltavit, filed a notice of opposition pursuant to Article 46 of Regulation 2017/1001 to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on the earlier EU word mark DELTA, which was filed on 27 July 2007 and registered on 30 March 2011 under the number 6143961 and covers goods in Class 5 corresponding to, inter alia, the following description: ‘Veterinary and sanitary preparations; dietetic substances for animals’.

7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.

8        Following a request made by the applicant in accordance with Article 47(2) of Regulation 2017/1001, EUIPO invited the intervener to furnish proof of genuine use of the earlier mark that had been relied on in support of the opposition.

9        On 26 June 2019, the intervener submitted before the Opposition Division, as evidence of use of the earlier mark, 44 documents consisting of invoices to customers in France, the Czech Republic, Spain, Portugal, Latvia, Lithuania, Germany and Italy over a period running from 14 February 2013 to 20 September 2018 (items Nos 1 to 6), articles (items Nos 16, 29 to 31, 40 and 43), leaflets, brochures, information, advertisements, price lists, photographs and labels relating to the various goods, the names of which contain the word element ‘delta’ (items Nos 7 to 15, 17 to 28, 32 to 39, 41 and 42), and screenshots of the intervener’s website (item No 44).

10      Some of the evidence submitted by the intervener contained the following figurative element (‘the figurative sign Delta’):

11      On 3 January 2020, the intervener filed six undated photographs of various goods which also bore the figurative sign Delta.

12      On 13 March 2020, the Opposition Division upheld the opposition in its entirety.

13      On 28 April 2020, 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.

14      By decision of 21 December 2020 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal.

15      First of all, the Board of Appeal found that the evidence of use submitted by the intervener established that there had been genuine use of the earlier mark in connection with dietetic substances for animals in Class 5. In particular, as regards the nature of use of the earlier mark, the Board of Appeal reached the conclusion that the evidence, assessed as a whole, showed use of the sign constituting the earlier mark as registered. In that regard, it took the view, in the first place, that a large majority of the documents which had been submitted by the intervener featured the figurative sign Delta and that that presentation did not alter the distinctive character of the earlier mark. In the second place, as regards the word elements used with the word element ‘delta’, the Board of Appeal added that some of those additions, such as ‘calcium’, ‘glycol’, ‘tonic’ or ‘control’, would be immediately recognised as descriptive with regard to the dietetic substances at issue. Consequently, it found that those descriptive elements were not capable of having an effect on, or of altering, the distinctive character of the earlier mark.

16      Secondly, as regards the assessment of the likelihood of confusion, the Board of Appeal first of all found, as regards the relevant public and the comparison of the goods at issue, that those goods were aimed both at professionals and at the general public, both of which displayed a level of attention that was higher than average, and that the goods were similar to an average degree. Next, as regards the comparison of the signs, it found that they were visually and phonetically similar to a high degree and conceptually similar to an average degree, at least for part of the relevant public. Lastly, taking the view that the earlier mark had a normal degree of distinctiveness, the Board of Appeal concluded that there was a likelihood of confusion on the part of the relevant public.

II.    Forms of order sought

17      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO and the intervener to pay the costs.

18      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs incurred by EUIPO.

19      The intervener contends, in essence, that the Court should dismiss the action.

III. Law

A.      The issue of whether certain annexes to the application are admissible

20      EUIPO and the intervener submit that Annexes A.6 and A.7 to the application have been submitted for the first time before the Court and are therefore inadmissible.

21      In that regard, it must be borne in mind that the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001, so it is not the Court’s function to review the facts in the light of evidence produced for the first time before it (see, to that effect, judgment of 15 March 2018, La Mafia Franchises v EUIPO – Italy (La Mafia SE SIENTA A LA MESA), T‑1/17, EU:T:2018:146, paragraph 16 and the case-law cited).

22      In the present case, it must be pointed out that the applicant has produced Annex A.6 to the application, which consists of marketing authorisations in respect of the product Deltatic which have been issued by a number of Member States, and Annex A.7 to the application, which consists of leaflets in respect of the veterinary medicinal products Deltanil and Deltavex. However, those documents were not submitted to EUIPO during the administrative proceedings. Consequently, they must be rejected as inadmissible in accordance with the case-law referred to in paragraph 21 above.

B.      Substance

23      In support of the action, the applicant relies on two pleas in law, alleging (i) infringement of Article 47(2) of Regulation 2017/1001, read in conjunction with point (a) of the second subparagraph of Article 18(1) of that regulation, and (ii) infringement of Article 8(1)(b) of that regulation.

1.      The first plea, alleging infringement of Article 47(2) of Regulation 2017/1001, read in conjunction with point (a) of the second subparagraph of Article 18(1) of that regulation

24      The applicant disputes the Board of Appeal’s assessment of the evidence of use of the earlier mark. First, it claims that the Board of Appeal erred in taking into account additional documents which the intervener had submitted after the expiry of the time limit which had been set in that regard. Secondly, it submits that, contrary to the assessments of the Board of Appeal, the intervener’s umbrella brand is Deltavit, and not Delta, as the latter mark is almost imperceptible on most of its goods. It argues that such use of the term ‘delta’ does not therefore comply with the requirements of Article 18(1) of Regulation 2017/1001.

25      Thirdly, the applicant submits that the earlier mark is used in at least 37 variants, most of which, in infringement of Article 18(1) of Regulation 2017/1001, alter the distinctive character of the earlier mark. Consequently, it argues that the use proved is not that of the earlier mark, but that of an extensive number of variations of that mark. Fourthly, the applicant, referring to the considerations of EUIPO, submits that the proof of use of the earlier mark furnished by the intervener is not very exhaustive.

26      EUIPO and the intervener dispute the applicant’s claims.

27      Article 47(2) of Regulation 2017/1001 provides that, if the applicant so requests, the proprietor of an earlier EU trade mark who has given notice of opposition is to furnish proof that, during the five-year period preceding the date of filing or the date of priority of the EU trade mark application, the earlier EU trade mark has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and which he or she cites as justification for his or her opposition, or that there are proper reasons for non-use, provided that the earlier EU trade mark has at that date been registered for not less than five years. In the absence of proof to this effect, the opposition is to be rejected. If the earlier EU trade mark has been used in relation to only part of the goods or services for which it is registered it is, for the purposes of the examination of the opposition, to be deemed to be registered in respect only of that part of the goods or services.

28      For the purpose of interpreting the concept of genuine use, account must be taken of the fact that the ratio legis for the requirement that the earlier mark must have been put to genuine use if it is to be capable of being used in opposition to an EU trade mark application is to restrict the number of conflicts between two marks, where there is no good commercial justification deriving from an actual function of the mark on the market. However, the purpose of that provision is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 38 and the case-law cited).

29      There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected in the relevant territory, be used publicly and outwardly (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraphs 37 and 43).

30      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).

31      As regards the criteria for assessing whether there has been genuine use, it must be stated that, under Article 10(3) and (4) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), the proof of use must concern the place, time, extent and nature of use of the trade mark and is to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001.

32      In order to examine, in a particular case, whether an earlier trade mark has been put to genuine use, a global assessment must be carried out, which takes into account all the relevant factors of the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, a low volume of goods marketed under the trade mark may be compensated for by a high intensity of use or a period of very regular use of that trade mark or vice versa (see judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42 and the case-law cited).

33      The turnover and the volume of sales of the goods under the earlier trade mark cannot be assessed in absolute terms but must be looked at in relation to other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services on the relevant market. As a result, use of the earlier mark need not always be quantitatively significant in order to be deemed genuine (judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42). Even minimal use can therefore be sufficient to be classified as genuine, provided that it is regarded as warranted, in the relevant economic sector, as a means of maintaining or creating market shares for the goods or services protected by the mark. It follows that it is not possible to determine a priori, and in the abstract, what quantitative threshold should be chosen in order to determine whether the use was genuine or not, so that a de minimis rule, which would not allow EUIPO or, following the bringing of an action, the Court, to appraise all the circumstances of the dispute before it, cannot be laid down (see, to that effect, judgment of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 72 and the case-law cited).

34      An accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (see judgment of 13 February 2015, Husky CZ v OHIM – Husky of Tostock (HUSKY), T‑287/13, EU:T:2015:99, paragraph 66 and the case-law cited).

35      Genuine use of a trade mark cannot be proved by means of probabilities or presumptions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned (judgments of 12 December 2002, Kabushiki Kaisha Fernandes v OHIM – Harrison (HIWATT), T‑39/01, EU:T:2002:316, paragraph 47, and of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 28).

36      In addition, it must be noted that, under point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 in conjunction with Article 47(2) of that regulation, proof of genuine use of an earlier EU trade mark which forms the basis of an opposition against an EU trade mark application also includes proof of use of the earlier mark in a form differing in elements which do not alter the distinctive character of that mark in the form in which it was registered (see judgment of 8 December 2005, Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH), T‑29/04, EU:T:2005:438, paragraph 30 and the case-law cited).

37      Furthermore, in order to assess whether there has been genuine use in the European Union, within the meaning of Article 18(1) of Regulation 2017/1001, it is necessary to disregard the territorial borders of the Member States (see, to that effect, judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 44).

38      It is in the light of the abovementioned principles that the present plea must be examined.

39      It is necessary at the outset to reject the applicant’s argument alleging that the Board of Appeal took into account additional evidence (as referred to in paragraph 11 above), which had allegedly been submitted after the deadline which the Opposition Division had set for that purpose. In that regard, it is sufficient to point out that, as is clear from reading the contested decision, in particular from paragraphs 27 to 40 of that decision, the Board of Appeal, although it mentioned that additional evidence in paragraph 8 of the contested decision, did not rely on that evidence in order to find that genuine use of the earlier mark had been proved, with the result that the applicant’s argument is, in any event, ineffective.

40      In the present case, as the Board of Appeal correctly pointed out in paragraph 25 of the contested decision, the application for registration of the mark applied for was filed on 13 February 2018. Consequently, the five-year period referred to in Article 47(2) of Regulation 2017/1001, with regard to which genuine use of the earlier mark had to be established, ran from 13 February 2013 to 12 February 2018.

41      In addition, it must be stated that, since the Opposition Division had accepted that there had been genuine use of the earlier mark solely as regards dietetic substances for animals and the intervener had not disputed that assessment, the Board of Appeal examined whether there had been genuine use of the earlier mark solely with regard to those goods.

(a)    The place and time of use

42      In the present case, the Board of Appeal found that the place and time of use had correctly been established. In particular, it found, in paragraph 27 of the contested decision, that all the dated documents, with the exception of some of the invoices which dated from 2018, fell within the relevant period. As regards the place of use, the Board of Appeal pointed out that the invoices which had been submitted established sales in several Member States. In that regard, it added that the promotional material and press articles in French were aimed at the French-speaking public in the European Union and the promotional material in English was aimed at English-speaking consumers, including consumers who were professionals and used English as a language in order to do business.

43      Those findings, which have not, moreover, been called into question by the parties, must be upheld.

(b)    The nature of use

44      As follows directly from the wording of point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001, the use of the trade mark in a form which differs from the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor, is regarded as use within the meaning of the first subparagraph of that article provided that the distinctive character of the mark in the form in which it was registered is not altered (see judgment of 25 June 2020, Dermavita v EUIPO – Allergan Holdings France (JUVÉDERM), T‑104/19, not published, EU:T:2020:283, paragraph 37 and the case-law cited).

45      For a trade mark to possess distinctive character within the meaning of Regulation 2017/1001, it must serve to identify the goods in respect of which registration is applied for as originating from a particular undertaking, and thus to distinguish those goods from those of other undertakings (see judgment of 13 September 2016, hyphen v EUIPO – Skylotec (Representation of a polygon), T‑146/15, EU:T:2016:469, paragraph 26 and the case-law cited).

46      It must be noted that point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 relates to a situation in which a registered national or EU trade mark is used in trade in a form which is slightly different from the form in which it was registered. The purpose of that provision, which avoids imposing strict conformity between the form of the trade mark as used and the form in which the mark was registered, is to allow its proprietor, in the commercial exploitation of the sign, to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotional requirements of the goods or services concerned. In accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the form of the sign used in trade differs from the form in which that sign was registered only in insignificant respects, with the result that the two signs can be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the registered trade mark may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 27; see also, to that effect, judgment of 18 July 2013, Specsavers International Healthcare and Others, C‑252/12, EU:C:2013:497, paragraph 29, and, by analogy, judgment of 25 October 2012, Rintisch, C‑553/11, EU:C:2012:671, paragraphs 21 and 22).

47      Consequently, a finding that the distinctive character of the registered trade mark has been altered requires an assessment of the distinctive and dominant character of the elements which have been added, carried out on the basis of the intrinsic qualities of each of those elements, as well as of the relative position of the various elements within the arrangement of the mark (see judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 28 and the case-law cited).

48      Furthermore, it must be borne in mind that, in order for point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 to apply, the additions to the registered mark must not alter the distinctive character of the mark in the form in which it was registered, in particular because of their ancillary position in the sign or their weak distinctive character (see judgment of 13 September 2016, Representation of a polygon, T‑146/15, EU:T:2016:469, paragraph 31 and the case-law cited).

49      It is in the light of the foregoing considerations that it must be assessed whether it is apparent from the evidence submitted by the intervener that the earlier mark has been used in a form which alters the distinctive character of that mark.

(1)    The issue of whether there has been any alteration in the distinctive character of the earlier mark owing to its use in the form of the figurative sign Delta

50      In the present case, the applicant claims that the Boards of Appeal’s finding that the use of the earlier mark is admissible because elements like ‘deltamigo’, ‘deltatys’ or ‘deltabolus’ are accompanied by the term ‘delta’ somewhere on the label, is incorrect since the figurative sign Delta is imperceptible on the goods. Furthermore, it claims that, contrary to the assessments of the Board of Appeal, the intervener’s umbrella brand is Deltavit, and not Delta, as the latter mark is almost imperceptible on most of the goods.

51      EUIPO and the intervener dispute the applicant’s claims.

52      In that regard, the Board of Appeal, referring to items Nos 8 to 10, 14, 15, 17, 28, 33, 35 and 37, pointed out in particular, in paragraph 33 of the contested decision, that the figurative sign Delta was always visible as an umbrella brand on the goods themselves and in the accompanying leaflets and brochures. Moreover, it found, in paragraph 34 of the contested decision, that, on various documents which had been provided, that figurative sign was independently positioned next to the signs Deltamigo, Deltatys or Deltabolus. As regards, in particular, the sign Deltatys, the Board of Appeal found that the figurative sign Delta, which was placed close to the element ‘deltatys’, fulfilled its own function as an indication of origin for the consumer.

53      First, it is clear from the case file that the figurative sign Delta appears in the promotional material in connection with the goods Deltamigo (items Nos 8 and 10), Delt’AD 3E (item No 9), Patoral® Piglet (item No 11), Oligopass (item No 34), Delta ph Control (item No 34), Stimflash and Deltacarnitol (item No 36), Deltalitol (items Nos 36 and 38), Hydralac (item No 38), on the labels of the products Deltabov (item No 14), Axion® Baca (item No 15), Deltatys (item No 17), and on the packaging of the products Delta Viv’, Deltamine and Deltatys (item No 28).

54      However, contrary to what the Board of Appeal stated, the figurative sign Delta is not perceptible on items Nos 33, 35 and 37. The items of evidence on which that sign appears are in items Nos 34, 36 and 38, with the result that the Board of Appeal made a mistake when making the references to the items in the case file. Likewise, it must be stated that, on the packaging submitted as item No 28, the figurative sign Delta is also not clearly perceptible. The fact, however, remains that the other items of evidence, as referred to in paragraph 53 above, contain the figurative sign Delta, which is clearly perceptible, with the result that the error which the Board of Appeal made does not alter the reasoning which it followed or the conclusions which it drew from the evidence provided.

55      Secondly, as regards the question of whether the use of the earlier mark in the form of the figurative sign Delta alters its distinctive character, it must be pointed out that, in that sign, the word element ‘delta’, which is written in white letters in a slightly stylised font and to which the smaller symbol ‘®’ has been added, appears on a light green background which consists of a rectangle with rounded corners. The graphic elements, namely the green background and the stylisation of the word element ‘delta’, are not capable of altering the distinctive character of that word element. Consequently, the use of that sign could validly be regarded as use of the earlier mark.

56      In that regard, it must be borne in mind that a word mark is a mark consisting entirely of letters, words or groups of words, without any specific figurative element. The protection offered by the registration of a word mark applies to the word in the application for registration and not to the specific figurative or stylistic characteristics which that mark might have. As a result, the font which the word sign might be presented in must not be taken into account. It follows that a word mark may be used in any form, in any colour or font type (see judgment of 28 June 2017, Josel v EUIPO – Nationale-Nederlanden Nederland (NN), T‑333/15, not published, EU:T:2017:444, paragraphs 37 and 38 and the case-law cited).

57      In addition, it is apparent from the case-law that the specific representation of a word mark is not generally of such a nature as to alter the distinctive character of that mark as registered (see judgment of 3 October 2019, 6Minutes Media v EUIPO – ad pepper media International (ADPepper), T‑668/18, not published, EU:T:2019:719, paragraph 54 and the case-law cited).

58      Thirdly, it must be borne in mind that the condition of genuine use of a trade mark may be satisfied where a trade mark is used in conjunction with another mark, provided that the first mark continues to be perceived as an indication of the origin of the goods concerned (see judgment of 23 September 2020, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle), T‑796/16, EU:T:2020:439, paragraph 142 and the case-law cited).

59      In the present case, it must be stated that the figurative sign Delta, which appears separately on the labels and the promotional material, is perceptible as an independent trade mark, with the result that its use together with other signs does not alter its distinctive character.

60      In that regard, it is also irrelevant that the sign Deltavit, which, according to the applicant, constitutes the intervener’s umbrella brand, is present on those same items of evidence and is sometimes much larger than the figurative sign Delta, as long as its presence does not alter the distinctive character of the earlier mark. However, in the present case, since the two signs appear separately and each of them is perceptible, it cannot be held that the distinctive character of the earlier mark has been altered by such use.

61      In the light of the foregoing, it must be held that the Board of Appeal did not err in finding that use of the earlier word mark could be proved by use of the figurative sign Delta.

(2)    The issue of whether there has been any alteration in the distinctive character of the earlier mark owing to the addition of word elements

62      According to the applicant, most of the word elements which have been added to the earlier mark are distinctive, with the result that the variants in which the earlier mark has been used deserve specific protection, which has been the case as regards some of those variants which have been registered as independent trade marks. It refers in particular to the sign DELTAMIGO NF IBERSAN to illustrate that the form in which the earlier mark has been used differs from the form in which that mark was registered and alters its distinctive character. Furthermore, the applicant states that, under Article 18 of Regulation 2017/1001, the size and distinctive character of the terms which have been added must be taken into account. It submits that, in the present case, the element ‘delta’ is not larger than the elements which have been added, but is the same size, is in the same font and has the same colours and design. It also argues that the elements which have been added alter the distinctive character of the term ‘delta’. The applicant submits that the fact that use of the earlier mark could be proved by the use of 37 variants constitutes an abusive use of the earlier mark, which may be seen as a way for the proprietor of that mark to make cost savings.

63      Consequently, the applicant claims that the intervener has not proved genuine use of the earlier mark, but that of a large number of variations of that mark. It argues that, by taking the view that those variations constitute use of the earlier mark, EUIPO is giving excessive protection to that mark.

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

65      In that regard, it must be pointed out first of all that, in paragraph 35 of the contested decision, the Board of Appeal, referring to the intervener’s arguments, found that many additions to the component ‘delta’ would immediately be recognised as descriptive of the dietetic substances at issue and it mentioned the terms ‘calcium ‘, ‘glycol’, ‘tonic’ or ‘control’. It concluded that those descriptive elements were not capable of having an effect on, or of altering, the distinctive character of the earlier mark.

66      By contrast, it could, according to the Board of Appeal, be doubtful whether the terms ‘deltamigo’, ‘deltatys’, ‘deltaviv’ or ‘deltabolus’ constituted use of the earlier mark (see paragraph 32 of the contested decision). Likewise, as regards the product marketed under the name ‘deltatys’, the Board of Appeal found, in paragraph 34 of the contested decision, that that name might not be broken up into the prefix ‘delta’ and the suffix ‘tys’, with the result that the Board of Appeal implicitly but necessarily found that the addition of the suffix ‘tys’ altered the distinctive character of the earlier mark.

67      It follows that, with the exception of the four variants containing the additions which were referred to in paragraph 35 of the contested decision and have been reproduced in paragraph 65 above, the applicant is not justified in claiming the Board of Appeal found that use of the earlier mark could be proved by use of the 37 variants of that mark which had additions that altered the distinctive character of that mark. On the contrary, as has been held in paragraph 66 above, the Board of Appeal expressly found that the four additions to the earlier mark which thereby formed the signs deltamigo, deltatys, deltaviv and deltabolus, among those mentioned by the applicant, altered the distinctive character of that mark. Consequently, the Board of Appeal found that use of the earlier mark could not be established by use of the aforementioned signs, the additions to which, in comparison with the earlier mark, altered the distinctive character of that mark.

68      As regards the other variants, it is sufficient to point out that the Board of Appeal did not rule on the question of whether the additional elements in those variants altered the distinctive character of the earlier mark or on the relevance of those variants with regard to proving genuine use of the earlier mark. In any event, it did not, in order to find that genuine use of the earlier mark had been proved, rely on variants other than the figurative sign Delta or those containing the addition of one of the four word elements which have been referred to in paragraph 65 above. Consequently, the applicant’s argument cannot succeed.

69      Next, as regards the four variants containing the added elements ‘calcium’, ‘glycol’, ‘tonic’ and ‘control’, it must be stated that the Board of Appeal’s findings in paragraph 35 of the contested decision, which have been reproduced in paragraph 65 above and have not, moreover, specifically been called into question by the applicant, are correct.

70      Those elements refer to the components or properties of the dietetic substances at issue, with the result that their distinctive character with regard to those goods is limited on account of their descriptiveness. Consequently, those elements, used together with the earlier mark, are not capable of altering the distinctive character of that mark.

71      In addition, as is apparent from the case file (items Nos 19 and 34) and as is also submitted by EUIPO, the word element ‘delta’ is used in a different colour from that of the other elements in the signs Deltacalcium and Delta ph Control, with the result that it will easily be capable of being distinguished in those signs.

72      Lastly, as regards the fact that some of the variants of the earlier mark which have been used, such as DELTACALCIUM, DELTASENOL, DELTAGLYCOL, DELTAESTEATOL, DELTACARNITOL or DELTAVIT, are or have been registered as independent trade marks on behalf of the intervener, it must be stated that, even on the assumption that those variants were taken into account by the Board of Appeal, that fact would, in any event, be irrelevant. As is pointed out by EUIPO, point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 expressly states that, inter alia, use of an EU trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered, regardless of whether or not the trade mark in the form as used is also registered in the name of the proprietor, is to be regarded as genuine use of that EU trade mark.

73      It follows that the Board of Appeal did not err in finding that the use of the earlier mark with descriptive additions, namely ‘calcium’, ‘glycol’, ‘tonic’ and ‘control’, could be taken into account for the purposes of establishing whether that mark had been put to genuine use.

(c)    The extent of use

74      As regards the extent of the use to which the earlier trade mark has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as of the length of the period during which the mark was used and the frequency of use (judgments of 8 July 2004, HIPOVITON, T‑334/01, EU:T:2004:223, paragraph 35, and of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 41).

75      The Board of Appeal pointed out, in paragraph 39 of the contested decision, that the intervener had submitted invoices covering the entire relevant five-year period and that the amounts documented in the invoices ranged from around EUR 60 to several thousand euro per product. It concluded, in paragraph 40 of the contested decision, that, since those invoices were only examples, covered the whole of that five-year period, were addressed to customers in several Member States and the amounts documented in those invoices were commercially substantial, the extent of use of the earlier mark shown was genuine and not token use.

76      In that regard, the applicant submits that the proof of use submitted by the intervener was not particularly exhaustive, as was acknowledged by EUIPO, and that it consisted of a mixture of invoices with different marks relating to different territories.

77      First of all, it must be stated that it was not the Board of Appeal which took the view that the proof of use of the earlier mark was not ‘particularly exhaustive’, but the Opposition Division. As for the Board of Appeal, it, on the contrary, stated that the amounts documented in the invoices provided were substantial (paragraph 40 of the contested decision).

78      Next, as has been pointed out in paragraph 28 above, the purpose of the obligation to furnish proof of genuine use of the earlier mark is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade-mark protection to the case where large-scale commercial use has been made of the marks. Furthermore, as is apparent from the case-law cited in paragraph 33 above, even minimal use can be sufficient to be classified as genuine, provided that it is regarded as warranted, in the relevant economic sector, as a means of maintaining or creating market shares for the goods or services protected by the mark. It follows that the intervener cannot be required to furnish proof of use of the earlier mark which is exhaustive.

79      Lastly, it must be pointed out that the intervener submitted a representative sample of sales invoices, namely invoices sent to customers established in a number of Member States, namely France, the Czech Republic, Spain, Portugal, Latvia, Lithuania and Germany. Furthermore, it is apparent from those invoices, as regards the goods referred to in paragraph 53 above, in connection with which the figurative sign Delta has been used, that the sales were sufficiently large to prove genuine use of the earlier mark in connection with those goods. Furthermore, the Board of Appeal pointed out in particular that, according to the price lists, the unit price of the goods sold ranged from EUR 7.85 for a five-litre bag of the product Deltalitol to EUR 2 759 for 1 100 kg of the product Deltaglycol. It follows from that that the unit price of the goods referred to in paragraph 53 above is between those two amounts. In addition, on the basis of the sample of invoices provided by the intervener, it can be stated, by way of example, that, during the period which ran from 14 February 2013 to 30 November 2016, 214 20 kg bags of the product Deltamine were sold for an amount of EUR 12 791.18, whereas, during the period which ran from 14 February 2013 to 27 April 2017, the intervener sold 210 25 kg bags of the product Deltatys for an amount of EUR 7 007.54.

80      It follows that the Board of Appeal did not err in finding that the extent of use of the earlier mark as shown was genuine and not token use.

81      In view of the foregoing considerations, the Board of Appeal did not err in finding that genuine use of the earlier mark had been proved as regards dietetic substances for animals. The first plea must therefore be rejected.

2.      The second plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001

82      The applicant submits that there is no likelihood of confusion in the present case since the signs at issue are not similar.

83      EUIPO contends that the second plea should be rejected and submits that the Board of Appeal’s finding relating to the existence of a likelihood of confusion is not vitiated by any error which would require the annulment of the contested decision.

84      The intervener submits, in essence, that the Board of Appeal was right in finding that there is a likelihood of confusion.

85      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, that 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.

86      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. 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).

87      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).

88      It is in the light of the abovementioned principles that the merits of the present plea must be examined.

(a)    The relevant public

89      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).

90      In the present case, the Board of Appeal found, in paragraph 46 of the contested decision, that the goods at issue were aimed at professionals such as veterinarians, farmers or breeders and at the general public. As regards the level of attention of that relevant public, it found that it was higher than average since the goods at issue had an effect on the health and well-being of the animals. Furthermore, it is apparent from the findings of the Board of Appeal in paragraph 64 of the contested decision that the relevant territory is that of the European Union.

91      Those assessments, which have not, moreover, been called into question by the parties, must be upheld.

(b)    The comparison of the goods

92      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, 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 the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).

93      As regards the goods at issue, it must be pointed out that the Board of Appeal described them in paragraph 50 of the contested decision. It stated, first, that the goods covered by the earlier mark in connection with which genuine use of that mark had been proved were specific animal feeds or food with the purpose, for example, of enhancing milk production in cows or urinary hygiene in pigs. Secondly, it stated that the goods covered by the mark applied for were preparations based on deltamethrin to be used externally on animals to protect them from external parasites.

94      In paragraph 51 of the contested decision, the Board of Appeal found that those goods could coincide as regards the target customers and could also coincide in their nature and purpose, inasmuch as they related to animals. The Board of Appeal therefore found that it was highly likely that there was an overlap as to their distribution channels and manufacturers and that they might have the same purpose and be complementary to one another. It concluded that the goods at issue were similar to an average degree.

95      Those assessments, which have not, moreover, been called into question by the parties, must be upheld.

(c)    The comparison of the signs

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

97      Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (see judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43 and the case-law cited).

98      In the present case, it is necessary to compare, on the one hand, the earlier word mark DELTA and, on the other hand, the word mark applied for DELTATIC.

99      The applicant submits that the signs at issue contain several elements which differentiate them, namely the different endings (‘ta’ and ‘tic’ respectively), the length of the signs and the different number of syllables, and that the sequence of letters ‘tic’ in the mark applied for has a striking sound which strongly attracts the attention of the consumers. It argues that the coincidence in the initial letters cannot constitute a ground for preventing the registration of the mark applied for. As regards, in particular, the conceptual comparison of the signs, the applicant submits that the term ‘delta’, which corresponds to the fourth letter of the Greek alphabet, is used in many fields, such as chemistry, physics, mathematics and applied science or in contemporary music. It argues that it follows that that element is weakly distinctive and that the intervener cannot have a monopoly over that term.

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

101    It must be pointed out at the outset, as regards the distinctive character of the element ‘delta’, which is common to the signs at issue, that neither the potential meanings of that term, as identified by the Board of Appeal (see paragraph 109 below), nor the applicant’s argument that the term ‘delta’ is frequently used in many fields can establish that that element is weakly distinctive with regard to the goods at issue.

102    As regards, first, the visual comparison of the signs, the Board of Appeal found, in paragraph 62 of the contested decision, that the signs at issue were highly similar, since the beginning of the mark applied for, consisting of its first five letters, fully incorporated the earlier mark. It nevertheless pointed out that the mark applied for contained three additional letters, ‘t’, ‘i’ and ‘c’, at its end.

103    Those findings of the Board of Appeal are correct. The earlier mark is fully included in the mark applied for, to which the letters ‘t’, ‘i’ and ‘c’ have been added, with the result that there is a high degree of visual similarity between those marks.

104    In that regard, it must be pointed out that the applicant’s argument that the signs at issue have different endings, namely ‘ta’ and ‘tic’, disregards the fact that the letters ‘t’ ‘a’ which constitute the ending of the element ‘delta’ are also present in the mark applied for.

105    Furthermore, according to the case-law, the fact that the earlier mark is entirely contained in the mark applied for is an indication that the two marks are visually similar (see judgment of 13 June 2012, Seikoh Giken v OHIM – Seiko Holdings (SG SEIKOH GIKEN), T‑519/10, not published, EU:T:2012:291, paragraph 27 and the case-law cited).

106    Moreover, it is apparent from the case-law that the consumer is deemed generally to pay greater attention to the beginning of a mark than to its end, as the first part of a mark normally has a greater impact, both visually and phonetically, than the final part (see judgment of 9 September 2019, SLL Service v EUIPO – Elfa International (LUMIN8), T‑680/18, not published, EU:T:2019:565, paragraph 35 and the case-law cited).

107    As regards, secondly, the phonetic comparison of the signs, the Board of Appeal found, in paragraph 63 of the contested decision, that they were highly similar, since, irrespective of the languages spoken, the beginnings of the two signs would be pronounced in the same way, whereas the mark applied for differed in the ending ‘tic’.

108    It must be stated, as the Board of Appeal found, that, irrespective of the pronunciation of the ending of the mark applied for, namely ‘tic’, the element ‘delta’ will be pronounced in the same way in both signs. Consequently, the applicant is not justified in claiming that the presence of the additional element in the mark applied for will have a considerable impact on the phonetic perception of the two signs. Likewise, the fact that the mark applied for consists of three syllables whereas the earlier mark comprises only two cannot make them different. In the light of the fact that the element in common ‘delta’, which corresponds to the earlier mark, is placed at the beginning of the mark applied for, the degree of similarity between the two signs is, as the Board of Appeal found, high.

109    As regards, thirdly, the conceptual comparison of the signs, the Board of Appeal found, in paragraph 64 of the contested decision, that the signs were similar at least for part of the relevant public. In paragraph 72 of that decision, it stated that the degree of conceptual similarity was average. It found that that public would perceive the element in common ‘delta’ in the signs at issue and would understand it as a reference to the Greek letter or to a triangular area where a major river divides into several smaller parts.

110    In that regard, it is sufficient to point out that, since the signs at issue coincide in the presence of the element ‘delta’, which will be understood by at least part of the relevant public, and the additional element ‘tic’ in the mark applied for has no direct meaning for that public, it cannot be denied that there is an average degree of conceptual similarity in the present case.

(d)    The likelihood of confusion

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

112    The applicant submits that, since there is no similarity between the signs at issue, the conditions set out in Article 8(1)(b) of Regulation 2017/1001 are not satisfied. It adds that, as the goods will be prescribed by veterinarians, the likelihood of confusion is notably lower. Furthermore, in order to show that the earlier mark is weakly distinctive, the applicant relies on the existence of EU trade marks which contain the term ‘delta’ and cover ‘veterinary products’ in Class 5.

113    EUIPO and the intervener dispute the applicant’s claims.

114    As regards, first of all, the distinctive character of the earlier mark, the Board of Appeal found, in paragraph 66 of the contested decision, that it had not been established that the term ‘delta’ had an allusive or even descriptive meaning in the context of the goods covered by the earlier mark. Consequently, it took the view that the inherent distinctiveness of that mark was normal. It added that it could not be deduced from the existence of other trade marks in the Register of EU trade marks that the relevant public is used to many competitors using the term ‘delta’ on the market concerned.

115    In that regard, it must be borne in mind that the applicant has not established that the word element ‘delta’, which also constitutes the earlier mark, is weakly distinctive with regard to dietetic substances for animals (see paragraph 101 above). In those circumstances, the inherent distinctiveness of the earlier mark is normal, as the Board of Appeal rightly found.

116    As regards the weakening of the distinctive character of the mark applied for on account of the alleged existence of numerous marks containing the word element ‘delta’, it must be borne in mind that the mere presence of marks containing a certain term in the Register of EU trade marks without any reference to their use on the market and to any challenge to those marks on account of the existence of a likelihood of confusion, does not permit the inference that the distinctive character of that term has been weakened in relation to the goods and services in respect of which those marks are registered (see judgment of 6 July 2016, Mozzetti v EUIPO – di Lelio (Alfredo alla Scrofa), T‑96/15, not published, EU:T:2016:394, paragraph 39 and the case-law cited).

117    It follows that the Board of Appeal did not err in relying on the inherent distinctiveness of the earlier mark, which is, as has been held in paragraph 115 above, normal in the present case.

118    Furthermore, even if the distinctive character of the earlier mark had been weak, it must be borne in mind that, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see judgment of 13 December 2007, Xentral v OHIM – Pages jaunes (PAGESJAUNES.COM), T‑134/06, EU:T:2007:387, paragraph 70 and the case-law cited).

119    Next, it must be pointed out that, in paragraph 72 of the contested decision, the Board of Appeal took into consideration the fact that the goods at issue were similar, that the signs were visually and phonetically similar to a high degree and that they were conceptually similar to an average degree, and, consequently, in paragraph 73 of the contested decision, found, like the Opposition Division, that, despite the enhanced level of attention paid to dietetic substances and preparations for animals, there was a likelihood of confusion.

120    Those assessments on the part of the Board of Appeal must be upheld. In view of the similarities between the goods at issue (paragraph 95 above), the high degree of visual and phonetic similarity and the average degree of conceptual similarity between the signs (see paragraphs 103, 108 and 110 above) and the normal inherent distinctiveness of the earlier mark, the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 cannot, in the present case, be ruled out, in spite of a high level of attention on the part of the relevant public.

121    Lastly, it must be added that the fact that the relevant public will pay more attention to the identity of the producer or provider of the goods or services which it wishes to purchase does not, however, mean, that it will examine the mark before it down to the smallest detail or that it will compare it in minute detail to another mark. Even with regard to a public displaying a high level of attention, the fact remains that the average consumer only rarely has the chance to compare the various marks directly and must therefore rely on his or her imperfect recollection of them (see judgment of 22 November 2018, Endoceutics v EUIPO – Merck (FEMIVIA), T‑59/18, not published, EU:T:2018:821, paragraph 65 and the case-law cited). Consequently, the applicant’s argument that the goods are prescribed by veterinarians cannot succeed.

122    In view of all of the foregoing considerations, the second plea must be rejected and the action must therefore be dismissed in its entirety.

IV.    Costs

123    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.

124    Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by EUIPO, in accordance with the form of order sought by EUIPO. The intervener, which has not applied for costs, must bear its own costs.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Vetpharma Animal Health, SL, to bear its own costs and to pay the costs incurred by the European Union Intellectual Property Office (EUIPO);

3.      Orders Deltavit to bear its own costs.

Delivered in open court in Luxembourg on 23 March 2022.

*      Language of the case: English.

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