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

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

1 June 2022 (*)

(EU trade mark – Invalidity proceedings – EU figurative mark Pokój TRADYCJA JAKOŚĆ KRÓWKA SŁODKIE CHWILE Z DZIECIŃSTWA TRADYCYJNA RECEPTURA – Earlier international figurative mark KOPOBKA KOROVKA – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001))

In Case T‑355/20,

PAO Moscow Confectionery Factory ‘Krasnyj Octyabr’, established in Moscow (Russia), represented by M. Geitz and J. Stock, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Söder and V. Ruzek, acting as Agents,

defendant,

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

Spółdzielnia ‘Pokój’, established in Bielsko-Biała (Poland), represented by E. Pijewska and M. Mazurek, lawyers,

THE GENERAL COURT (Ninth Chamber),

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

Registrar: A. Juhász-Tóth, Administrator,

having regard to the written part of the procedure,

further to the hearing on 9 December 2021,

gives the following

Judgment

1        By its action based on Article 263 TFEU, the applicant, PAO Moscow Confectionery Factory ‘Krasnyj Octyabr’, seeks annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 April 2020 (Case R 1974/2019‑1) (‘the contested decision’).

 Background to the dispute

2        On 25 April 2016, the intervener, Spółdzielnia ‘Pokój’, filed an application for registration of an EU trade mark with 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)).

3        Registration as a mark was sought for the following figurative sign, for which the colours red, white, yellow, shades of grey, brown and blue were claimed:

4        The goods in respect of which registration was sought are in Class 30 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: ‘Confectionery; candy; fudge’.

5        The EU trade mark application was published in European Union Trade Marks Bulletin No 2016/115 of 22 June 2016. That mark was registered on 29 September 2016 under number 15371305.

6        On 26 March 2018, the applicant filed an application with EUIPO for a declaration that the mark at issue was invalid in respect of all the goods referred to in paragraph 4 above.

7        The application for a declaration of invalidity was based on the earlier international registration No 844698 of the figurative mark reproduced below, having effect in, inter alia, Germany, Greece and Spain, filed and registered on 26 November 2004, and duly renewed, covering goods in, inter alia, Class 30 and corresponding, inter alia, to the following description: ‘Confectionery; sweetmeats; chocolate; pralines; waffles; pastries; cakes’:

8        The grounds relied on in support of the application for a declaration of invalidity were those set out in Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001), read in conjunction with Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

9        By decision of 5 July 2019, the Cancellation Division upheld the application for a declaration of invalidity.

10      On 5 September 2019, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division.

11      By the contested decision, the Board of Appeal annulled the Cancellation Division’s decision and rejected the application for a declaration of invalidity. In essence, it found that there was no likelihood of confusion or association on the part of the relevant public.

12      In particular, the Board of Appeal found that the goods covered by the marks at issue were directed at the general public in Germany, Greece and Spain displaying an average level of attention. Similarly, it upheld the Cancellation Division’s assessment that the goods at issue were identical.

13      As regards the assessment of the signs at issue, the Board of Appeal found, first, that the earlier mark did not have any dominant elements and that, in the contested mark, the dominant elements were the word element ‘krówka’, the ‘device’ featuring the element ‘pokój’ and a bird depicted above it against a red background, the representation of a milk churn, two pieces of fudge and a scooped knob of butter as well as the rectangular image depicting children positioned at the right-hand side of the sign.

14      Second, it found that the elements ‘kopobka’, ‘korovka’ and ‘krówka’ were devoid of any meaning for the relevant public and that, consequently, they had a normal degree of distinctiveness for the goods at issue. The element ‘pokój’, owing to its representation, would be perceived as a house mark. The expressions ‘słodkie chwile z dzieciństwa’ and ‘tradycyjna receptura’, while presenting a normal distinctive character for the goods at issue, appeared, according to the Board of Appeal, as explanatory indications for the elements ‘pokój’ and ‘krówka’. As regards the figurative elements in the contested mark, according to the Board of Appeal, the representation of a bird has a normal distinctive character, whereas the other figurative elements have a weak distinctive character in so far as they allude to the ingredients of the goods, indicate the target public of those goods or have a mere ornamental value.

15      Third, the Board of Appeal found that the signs at issue as a whole were not visually similar, because the obvious differences outweighed the sole point of similarity resulting from the coincidence between some of the letters in the word elements ‘kopobka’, ‘korovka’ and ‘krówka’. Fourth, according to the Board of Appeal, the marks at issue, pronounced respectively, ‘kopobka korovka’ and ‘krówka’ or ‘pokój krówka’, were phonetically similar to at best a low degree. Fifth, the Board of Appeal found that the signs at issue were not conceptually similar in so far as the relevant public would perceive only the semantic content conveyed by the figurative elements of the contested mark.

 Forms of order sought

16      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

17      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

18      Having regard to the date on which the application for registration at issue was filed, namely 25 April 2016, which is decisive for the purpose of determining the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

19      Consequently, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decision and by the parties in their written pleadings to the provisions of Regulation 2017/1001, in particular Article 8(1)(b) and Article 60(1)(a) of that regulation, must be understood as referring to the provisions of Regulation No 207/2009 which are identical in content, in particular Article 8(1)(b) and (5) and Article 53(1)(a) of that regulation.

20      The applicant relies, in essence, on a single plea in law, alleging infringement of Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation. By that single plea in law, the applicant submits, in essence, that the Board of Appeal, first, erred in its assessment of the level of attention of the relevant public and in the comparison of the marks at issue, second, erred in its global assessment of the likelihood of confusion and, third, failed to take into consideration the existence of an ‘indirect’ likelihood of confusion.

21      According to a combined reading of Article 53(1)(a) and Article 8(1)(b) of Regulation No 207/2009, upon application by the proprietor of an earlier trade mark, the registered EU trade mark is to be declared invalid 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. Furthermore, under Article 8(2)(a)(iii) of Regulation No 207/2009, ‘earlier trade marks’ means, inter alia, trade marks registered under international arrangements which have effect in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

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

23      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 (judgments of 20 September 2017, The Tea Board v EUIPO, C‑673/15 P to C‑676/15 P, EU:C:2017:702, paragraph 47, and of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42).

24      It is in the light of those considerations that it is necessary to assess whether the Board of Appeal was right to find that, in the present case, there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

 The relevant public and its level of attention

25      Under Article 8(1)(b) of Regulation No 207/2009, the existence of a likelihood of confusion resulting from the similarity, on the one hand, between the trade mark in the application for registration and an earlier trade mark and, on the other hand, between the goods or services covered by the trade marks must be assessed on the part of the public in the territory in which the earlier trade mark is protected (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 51, and of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 59).

26      Furthermore, 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 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).

27      In the present case, the Board of Appeal found, first, in paragraph 19 of the contested decision, that, since the earlier mark is an international registration having effect, in particular, in Germany, Greece and Spain, the relevant territory was that of those Member States and, second, in paragraph 18 of that decision, that the goods at issue were directed at the general public displaying an average level of attention.

28      The applicant calls into question the assessment of the level of attention of the relevant public and claims that it varies from low to average.

29      In that regard, EUIPO maintains that the case-law is ambiguous on that point in so far as, with regard to the goods at issue, some judgments confirm an average level of attention, while others have found a ‘rather’ low level of attention.

30      First, it must be stated that, in accordance with the case-law referred to in paragraphs 25 and 26 above, the Board of Appeal’s assessment that the relevant public for the goods at issue was the German, Greek and Spanish general public, which, moreover, is not disputed by the parties, must be upheld.

31      Second, as regards the level of attention of the relevant public, it has already been held, in respect of goods in Class 30, similar or identical to those covered by the marks at issue, that the level of attention of the relevant public is at most average, if not relatively low, since those goods are mostly inexpensive foodstuffs intended for mass consumption (see order of 10 July 2020, Katjes Fassin v EUIPO – Haribo The Netherlands & Belgium (WONDERLAND), T‑616/19, not published, EU:T:2020:334, paragraph 29 and the case-law cited).

32      In that regard, it must be pointed out that the Board of Appeal’s findings that the level of attention of the relevant public is average are not inconsistent with the case-law cited in paragraph 31 above, which accepts that the level of attention of the public in respect of the goods in Class 30, similar to the goods at issue, may vary from low to average, as the applicant also claims. The fact remains that any effect of a lower level of attention on the part of the relevant public than that found by the Board of Appeal on the existence of a likelihood of confusion will be examined below (see paragraph 101 below).

 The comparison of the goods

33      In the present case, the Board of Appeal found, in paragraph 47 of the contested decision, that the goods at issue were identical.

34      It must be held, in the light of the description of the goods covered by the marks at issue, in paragraphs 4 and 7 above, that that assessment by the Board of Appeal, which, moreover, is not disputed by the parties, must be upheld.

 The comparison of the signs

35      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In 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).

36      In the present case, the earlier mark corresponds to a figurative sign, comprising two word elements, ‘kopobka’ being placed above ‘korovka’. Those elements are written in bold black and rather standard uppercase letters.

37      As regards the element ‘kopobka’, admittedly written in Cyrillic characters and corresponding to the Latin transliteration of the element ‘korovka’, the Board of Appeal rightly found, without it being challenged by the parties, that the letters used in that element corresponded to the Latin alphabet. Thus, since the Spanish, German and Greek alphabets do not contain Cyrillic characters, the Board of Appeal was justified in assuming that those two elements will be perceived as two different words in Latin characters, at least by a large majority of the relevant public, which is not familiar with Cyrillic characters.

38      The contested mark, for its part, is a figurative sign consisting of the word element ‘krówka’, written in red bold uppercase letters and placed in the middle of a rectangular-shaped background in beige and white. Below that element appears the word element ‘słodkie chwile z dzieciństwa’, written in red in a much smaller size. In the upper part of the rectangular background there is a ‘device’ containing the word elements ‘pokój’ and, below it in smaller form, ‘tradycja jakość’, written in white against a red background with blue and white borders with a bird depicted above. The lower part features a milk churn, two pieces of fudge and a scooped knob of butter, below which is the word element ‘tradycyjna receptura’ written in red. The right-hand side of the sign is a rectangle consisting of four photographs in black and white of children playing.

 The dominant and distinctive elements of the marks at issue

39      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 19 September 2018, Eddy’s Snack Company v EUIPO – Chocoladefabriken Lindt & Sprüngli (Eddy’s Snackcompany), T‑652/17, not published, EU:T:2018:564, paragraph 39 and the case-law cited).

40      In order to assess the dominant character of one or more given components of a composite trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. Accessorily, account may be taken of the relative position of the various components within the arrangement of the composite mark (judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35, and of 8 February 2007, Quelle v OHIM – Nars Cosmetics (NARS), T‑88/05, not published, EU:T:2007:45, paragraph 58).

41      For the purpose of assessing the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgments of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35, and of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 51).

42      As regards, in the first place, the dominant elements of the signs at issue, the Board of Appeal found that, in the earlier mark, the two word elements were identical in size and, therefore, concluded that that mark did not contain any element that could be considered to be more dominant than the other (paragraph 26 of the contested decision).

43      As regards the contested mark, it found that the most visually dominant elements in that complex mark were the word element ‘krówka’ and the ‘device’ comprising, inter alia, the word element ‘pokój’, the representation of a milk churn, two pieces of fudge and a scooped knob of butter as well as the rectangular image containing photographs of children playing, positioned to the right of the sign (paragraph 29 of the contested decision).

44      In the second place, the Board of Appeal assessed the distinctive character of the elements making up the marks at issue. In that regard, first of all, it found that the elements ‘kopobka’, ‘korovka’ and ‘krówka’ will be considered by the German-, Greek- and Spanish-speaking public as words, probably of Slavic origin, with no immediately perceptible meaning as regards the goods at issue and, therefore, that they have a normal degree of distinctiveness (paragraph 31 of the contested decision).

45      Next, as regards the other word elements of the contested mark, it found that the element ‘pokój’, which will be perceived as a ‘house mark’ by the vast majority of the relevant public, and the Polish expressions ‘słodkie chwile z dzieciństwa’ (sweet moments from childhood) and ‘tradycyjna receptura’ (traditional recipe), did not convey any clear semantic content for the public in the relevant territories and therefore had a normal distinctive character in regard to the goods at issue. In any event, because of their ancillary position and their significantly smaller font, those elements would appear to be explanatory indications and are clearly secondary to the ‘device’ featuring, inter alia, the ‘pokój’ element and the ‘krówka’ element (paragraph 32 of the contested decision).

46      Lastly, as regards the figurative elements of the contested mark, the Board of Appeal found that, having regard to the goods at issue, the representation of the bird had a normal degree of distinctiveness, whereas that of a milk churn, two pieces of fudge and a scooped knob of butter had a weak distinctive character in so far as it alluded to the ingredients of those goods. It found that the photographs of children playing had a reduced distinctiveness, given that they could indicate the target public of the fudge and other confectionery or allude to a ‘childhood of days gone by’ (paragraph 33 of the contested decision).

47      As regards the ‘device’ as a whole, this is clearly reminiscent of a distinctive ‘house mark’ on account of its composition, position and the colours and typeface used (paragraph 34 of the contested decision). The beige and white rectangular background has only a mere ornamental value, ‘with no particular … impact [on the distinctive character]’ of the contested mark (paragraph 35 of the contested decision).

48      In essence, the applicant submits that the element ‘krówka’ is the only dominant element of the contested mark capable of indicating the commercial origin of the goods at issue that the public will perceive. According to the applicant, the Board of Appeal erred in also taking into account, in the overall impression created by the contested mark, the additional word elements of that mark and its figurative elements. The applicant claims that those word elements would not be understood by the relevant public, are small in size and would be perceived as merely illustrative, whereas those figurative elements are purely decorative and are not visibly positioned in the contested mark. As regards, more specifically, the element ‘pokój’, the applicant submits that the relevant public will not perceive it as a ‘house mark’ and will not attach any importance to it, given that it will not understand it, that it is smaller than the element ‘krówka’ and that it is less well positioned than the element ‘krówka’ within the contested mark.

49      In the first place, as regards the dominant elements of the marks at issue, it is necessary to uphold the Board of Appeal’s assessment that neither of the two identically sized word elements in the earlier mark is more dominant than the other.

50      As regards the contested mark, it should be noted that, according to settled case-law, where a sign consists of both figurative and word elements, it does not automatically follow that it is the word element which must always be considered to be dominant. In the case of a composite mark, the figurative element may rank equally with the word element (see judgment of 6 October 2015, Monster Energy v OHIM – Balaguer (icexpresso + energy coffee), T‑61/14, not published, EU:T:2015:750, paragraph 37 and the case-law cited). Furthermore, as already stated in paragraph 39 above, 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.

51      Similarly, it should be recalled, as the intervener has pointed out, that, according to the case-law, the weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element since it may, on account, in particular, of its position in the sign, its size and the secondary nature of the other elements in that sign, make an impression on consumers and be remembered by them (see judgment of 8 July 2020, Pablosky v EUIPO – docPrice (mediFLEX easySTEP), T‑21/19, EU:T:2020:310, paragraph 66 (not published) and the case-law cited).

52      In the present case, it must be stated that the Board of Appeal correctly found that, in addition to the element ‘krówka’, the ‘device’ and the figurative elements identified in paragraph 43 above were visually dominant in that element. Those figurative elements not only occupy together more than half of the composition of that mark, but are also clearly visible in it.

53      Thus, the ‘device’, which will be perceived as a ‘house mark’ (see paragraph 58 below), cannot escape the attention of the relevant public, on account of its position in the upper part of the contested mark, in view of the fact that the element ‘pokój’ in that mark is written in white characters on a red background with white and blue borders and contrasts with the white and beige rectangular background, and in view of the representation of a bird above that element which confers a certain originality on the whole. Similarly, the image of a milk churn, two pieces of fudge and a scooped knob of butter is also such as to make an impression on the part of the relevant public and to be remembered by that public, because of its relatively large size and the subjects which it represents. As regards the rectangle containing four photographs of children playing, it is visually striking in view of the prominent position which it occupies in the contested mark, namely a little more than a third of that mark, the subjects represented and the fact that those photos are in black and white, which contrasts with the other components of that mark.

54      By contrast, the word elements, consisting of the Polish expressions ‘tradycja jakość’, ‘słodkie chwile z dzieciństwa’ and ‘tradycyjna receptura’ contained in the contested mark play a secondary role because of their small size, as concluded, in essence, by the Board of Appeal.

55      It follows that the applicant’s argument that the element ‘krówka’, on its own, dominates the overall image of the contested mark cannot be accepted.

56      In the second place, as regards the distinctive character of the elements comprising the marks at issue, it should be noted that the applicant does not call into question the Board of Appeal’s assessment, free of error, that the elements ‘kopobka’, ‘korovka’ and ‘krówka’, which have no meaning for the relevant public, have a normal degree of distinctiveness. By contrast, the applicant denies that the additional word elements of the contested mark and its figurative elements have any distinctive character.

57      In that regard, it must be held that the Board of Appeal was right to find that the element ‘pokój’ and the Polish expressions ‘słodkie chwile z dzieciństwa’ and ‘tradycyjna receptura’ in the contested mark did not convey any clear semantic content for the relevant public in Germany, Greece and Spain and that, therefore, they had a normal distinctive character for the goods at issue. Contrary to what the applicant claims in that context, the mere fact that the relevant public does not understand those word elements does not necessarily mean that it will ignore them.

58      As regards the ‘device’, the Board of Appeal was right to find that it would be perceived as constituting a ‘house mark’. That is apparent, more specifically, from its position above the element ‘krówka’ in the upper part of the contested mark, which clearly represents the front of the packaging of the goods to which it refers. Therefore, the ‘device’ and the element ‘pokój’ which it features must be recognised as having normal distinctiveness.

59      As regards the other figurative elements of the contested mark, first of all, in the light of the absence of a direct and clear link between the representation of the bird and the goods at issue, the Board of Appeal’s assessment that that representation has a normal distinctive character must be upheld. Next, the Board of Appeal was also right to find that the representation of a milk churn, two pieces of fudge and a scooped knob of butter had a weak distinctive character in so far as it could be perceived as alluding to the ingredients of the goods at issue. Similarly, the Board of Appeal was justified in finding that the photographs of children playing are only weakly distinctive, given that they could indicate the target public of the goods at issue or, for part of the relevant public capable of understanding the reference to a traditional recipe, allude, on account of the use of black and white, to a ‘childhood of days gone by’. Lastly, it is not disputed by the applicant that the beige and white rectangular background is purely ornamental and, consequently, has a weak distinctive character.

60      In the light of the foregoing, it must be concluded that the Board of Appeal did not err in its assessment that, first, none of the elements in the earlier mark was dominant and that both ‘kopobka’ and ‘korovka’ were distinctive and, second, that, in the case of the contested mark, the word element ‘krówka’, the ‘device’ featuring the element ‘pokój’ and the figurative elements identified in paragraph 43 above were dominant, but that the latter figurative elements were weakly distinctive, unlike the word element ‘krówka’ and the ‘device’ featuring the element ‘pokój’, which have a normal distinctive character.

 Visual similarity

61      The Board of Appeal found, in paragraphs 37 to 42 of the contested decision, that, overall, the marks at issue were not visually similar in so far as the obvious differences between them outweighed their only point of similarity resulting from the coincidence between some of the letters of the earlier mark and one of the word elements of the contested mark.

62      The applicant submits that there is a high degree of visual similarity between the marks at issue. First of all, it claims that, as regards the contested mark, the relevant public will take into account only the element ‘krówka’. Next, the applicant relies on the fact that that mark, in which the element ‘krówka’ is placed under the element ‘pokój’, is structured in the same way as the earlier mark, in which the element ‘korovka’ is placed under the element ‘kopobka’. Furthermore, the applicant submits that the elements ‘krówka’, ‘korovka’ and ‘kopobka’ begin with the letter ‘k’, have the letter ‘o’ in the middle and end with the group of letters ‘ka’. The element ‘krówka’, it submits, does no more than omit the first letter ‘o’ from the elements ‘korovka’ and ‘kopobka’ and replace, respectively, the letter ‘v’ and the letter ‘b’ of those elements with the letter ‘w’. Lastly, the applicant claims that the relevant public will focus on the elements ‘krówka’ and ‘korovka’ of the marks at issue since that public can easily pronounce them.

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

64      In the present case, it must be pointed out, as observed by the Board of Appeal (paragraph 37 of the contested decision), that the only point of visual similarity between the marks at issue is the coincidence between some of the letters in the word elements ‘krówka’, ‘kopobka’ and ‘korovka’. Those elements share the letters ‘k’, ‘o’ and ‘a’, as well as the letter ‘r’ for two of them, each beginning with the letter ‘k’ and ending with the letters ‘k’ and ‘a’. The letters ‘r’ and ‘o’, by contrast, are placed in a different order.

65      However, the mere presence of common letters does not in itself support the conclusion that the marks at issue are visually similar. As is apparent from the case-law, since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have the same number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar (see, to that effect, judgments of 13 June 2019, Pet King Brands v EUIPO – Virbac (SUIMOX), T‑366/18, not published, EU:T:2019:410, paragraph 96 and the case-law cited, and of 26 March 2020, Conlance v EUIPO – LG Electronics (SONANCE), T‑343/19, not published, EU:T:2020:124, paragraph 41).

66      Similarly, it must be borne in mind that, contrary to the position argued, in essence, by the applicant in the present case, the visual comparison between the marks at issue cannot be limited, as regards the contested mark, solely to the word element ‘krówka’. That mark, which is a composite mark representing the complete front of an item of packaging, contains several other visually striking elements which significantly diminish, in the context of an overall impression, the effect produced by the single point of similarity between those marks noted in paragraph 64 above. The additional non-negligible elements of the contested mark, which have no equivalent in the earlier mark, are the ‘device’, the image of a milk churn, two pieces of fudge and a scooped knob of butter, and the rectangular image representing four photographs in black and white of children playing.

67      In that regard, it should be borne in mind that, according to the case-law, the fact that the two marks at issue contain similar word elements is not in itself sufficient to conclude that there is a visual similarity between them, given that the presence of figurative elements that are set out in a specific way can have the effect that the overall impression conveyed by each sign is different (see judgment of 13 December 2007, el charcutero artesano, T‑242/06, not published, EU:T:2007:391, paragraph 58 and the case-law cited).

68      The applicant’s argument that the contested mark is allegedly structured in the same way as the earlier mark cannot be accepted, since it is based on an artificial fragmentation of the contested mark and disregards most of its visually distinctive elements (see paragraph 52 above). For the same reasons, it is necessary to reject the applicant’s argument that the relevant public will focus on the elements ‘krówka’ and ‘korovka’ of the marks at issue, which that public can easily pronounce. Moreover, that argument does not take account of the fact that the earlier mark also consists of the element ‘kopobka’, which, because of its positioning above the element ‘korovka’, will be perceived and pronounced before that latter element.

69      In the light of the foregoing, it must be held that the Board of Appeal was justified in finding that, overall, the marks at issue are not visually similar.

 Phonetic similarity

70      In the present case, the Board of Appeal found, in paragraphs 43 and 44 of the contested decision, that the marks at issue had at best a low degree of phonetic similarity.

71      The applicant submits that there is a high degree of phonetic similarity between the marks at issue. In that regard, it submits that the final parts of the elements ‘krówka’ and ‘korovka’, namely ‘ówka’ and ‘ovka’, will be pronounced identically or almost identically by the relevant public. It adds that the initial parts of those elements, namely ‘kró’ and ‘koro’, will be pronounced in a similar way by that public since, first, in the contested mark, the sound of the letter ‘r’ is silent, dominated by that of the next letter, namely ‘o’, and, second, in the earlier mark, the first letter ‘o’ will not be ‘articulated’, since it is placed in the first syllable of the word elements of which that mark consists. Furthermore, it disputes that the rhythm and intonation of the marks at issue are different. The applicant adds that, even if the marks at issue were pronounced as ‘pokój krówka’ and ‘kopobka korovka’, there would be phonetic similarity in the present case, in particular as regards the Russian-speaking part of the relevant public.

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

73      It must be held, as the Board of Appeal has done (see paragraph 43 of the contested decision), that, irrespective of the different rules of pronunciation in the relevant territories, the earlier mark will be pronounced ‘kopobka korovka’, whereas the contested mark will be pronounced ‘krówka’, or even ‘pokój krówka’.

74      Moreover, the Board of Appeal, in paragraph 44 of the contested decision, correctly inferred from that finding that the pronunciation of the marks at issue coincided only in the sound of their first letter ‘k’ and in that of their last two letters ‘k’ and ‘a’, their other common letters, namely ‘o’ and ‘r’, being placed in a different order; in addition, the fact that a part of the relevant public will also pronounce the element ‘pokój’ of the contested mark differentiates the pronunciation of the marks at issue. Furthermore, the rhythm and intonation of those marks are also different.

75      Accordingly, the Board of Appeal was justified in concluding that the degree of phonetic similarity of the marks at issue was at best low.

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

77      First, as has already been pointed out in paragraph 68 above, the applicant fails to take account of the fact that the earlier mark also includes the element ‘kopobka’ and that that element, being placed above the element ‘korovka’, will be perceived and pronounced first in that mark. Moreover, as EUIPO correctly submits, it cannot be ruled out that the relevant public will confine itself to pronouncing the element ‘kopobka’ when faced with the earlier mark. Phonetically, the latter differs more from the element ‘krówka’ on account of the presence of the letters ‘p’ and ‘b’, because it has an additional syllable and vowel, and is of greater length.

78      Second, even if the phonetic comparison had to be limited solely to the elements ‘korovka’ and ‘krówka’, as the applicant wrongly does, it could only be held that those elements differ in terms of their intonation, the first containing a syllable and a vowel more than the latter and being longer than the latter. Moreover, since the applicant’s claims, according to which the sound of the letter ‘r’ in the contested mark is silent and the first letter ‘o’ of the two elements of the earlier mark will not be ‘articulated’, are not substantiated in any way, they must be rejected.

 Conceptual similarity

79      The Board of Appeal concluded, in paragraph 45 of the contested decision, that there was no conceptual similarity between the marks at issue.

80      The applicant claims that, because of the visual and phonetic similarities between the marks at issue, the relevant public, even if it does not understand the meaning of those marks, will assume that there is also a conceptual similarity between them. In support of that claim, first, it submits that the Board of Appeal incorrectly took account of the figurative elements of the contested mark in the conceptual comparison of the marks at issue. According to the applicant, the relevant public will not attribute any function of an indication of origin to those figurative elements and will not consider that they have any particular meaning in the contested mark. Second, the applicant submits that the relevant public will not understand the meaning of the word elements of that mark which would enable it to associate them with its figurative elements.

81      The applicant adds that the contested decision is ‘inconsistent’ in so far as the Board of Appeal failed to take account of the fact that there is a fairly large group of Russian speakers in Germany, Spain and Greece. The latter, it submits, clearly perceive the elements ‘krówka’, ‘kopobka’ and ‘korovka’ in the marks at issue. In response to a question put by the Court at the hearing, the applicant stated that this was an additional argument relating to the existence of conceptual similarity. Similarly, it stated that the trade circles will understand the three terms referred to above on account of their similarity.

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

83      It must be stated that, in the present case, the Board of Appeal correctly carried out a conceptual comparison of the marks at issue by concluding that they were not similar.

84      As is apparent from the considerations set out in paragraph 56 above, the word elements making up the earlier mark are devoid of any meaning for the relevant public. Likewise, the word elements of the contested mark will not be understood by that public. By contrast, the figurative elements of the contested mark convey certain concepts, in this case those of the ingredients of the goods at issue and of tradition (see paragraph 59 above).

85      As regards the argument put forward by the applicant, set out in paragraph 80 above, it must be stated that it is, as the intervener correctly submits, inherently contradictory. If, as the applicant states, the marks at issue did not convey any meaning for the relevant public, they could not, by definition, present the slightest conceptual similarity. In such a case, the comparison of the marks at issue would, at most, have to be regarded as being conceptually neutral and as having no effect on the assessment of the similarity between those marks. In addition, that argument is based on premisses relating to the visual and phonetic similarity of those marks, which, in the light of the considerations set out in paragraphs 69 and 75 above, must be rejected as erroneous.

86      As regards the applicant’s claim that the Board of Appeal did not take account of the fact that a fairly large number of people speak Russian in Germany, Spain and Greece, the following must be noted.

87      First of all, it must be stated that the applicant has not established the accuracy of that claim. In that regard, it should be noted, as observed by EUIPO, that the judgments cited by the applicant in support of its claim do not confirm that a significant proportion of German, Spanish or Greek nationals understand Russian. Thus, in the judgment of 19 July 2017, Lackmann Fleisch- und Feinkostfabrik v EUIPO (медведь) (T‑432/16, not published, EU:T:2017:527, paragraphs 23, 29 and 31), the Court did not recognise that German, Spanish or Greek nationals know that language. Similarly, in its judgment of 18 June 2020, Dovgan v EUIPO (C‑142/19 P, not published, EU:C:2020:487, paragraphs 38 to 43), delivered on appeal against the judgment of 13 December 2018, Monolith Frost v EUIPO – Dovgan (PLOMBIR) (T‑830/16, EU:T:2018:941), relied on by the applicant, the Court of Justice held that there was no need for it to rule on a possible error on the part of the General Court in its judgment regarding German nationals’ knowledge of Russian, since the General Court’s finding that it was well known that a significant proportion of nationals of the Baltic States understood that language was sufficient to justify its conclusion.

88      As regards the judgment of 28 October 2015, Rot Front v OHIM – Rakhat (Маска) (T‑96/13, EU:T:2015:813), it is irrelevant in so far as, first, it relates to the question of the definition of the relevant public in the light of the criteria laid down by the applicable national law, in that case German law, including national case-law and academic writings, and not in the light of the case-law of the General Court concerning the application of Regulation No 207/2009, and, second, it finds at most that there are Russian-speaking consumers in Germany, but without giving any indication as to what proportion they represent in relation to all relevant consumers in that country.

89      Next, it must be noted that the term ‘krówka’, unlike ‘kopobka’ and ‘korovka’, is a Polish word. Therefore, it cannot be assumed that it will be understood by the Russian-speaking public. In that regard, it must be noted that the applicant’s claims that the elements ‘krówka’, ‘kopobka’ and ‘korovka’ will all be understood by trade circles are not substantiated in any way. Furthermore, it should be recalled that the relevant public in this case is the general public and not the professional public (see paragraph 30 above), with the result that the perception of the marks in question by a professional public is irrelevant.

90      Lastly, even if part of the relevant public were to understand, in an analogous manner, the elements ‘krówka’, ‘kopobka’ and ‘korovka’ as equivalent and meaning ‘small cow’, it would then be necessary to take account of the reduced distinctive character of those elements, since, at the very least, the Polish word ‘krówka’ is descriptive of the goods at issue, as the intervener established during the administrative procedure (see paragraph 7 of the contested decision). In such circumstances, its impact on the conceptual comparison is, in any event, limited. It is apparent from the case-law that, where signs share only a descriptive word, the conceptual similarity must be regarded as low (judgments of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE), T‑602/19, not published, EU:T:2020:463, paragraph 51, and of 15 October 2020, Laboratorios Ern v EUIPO – Bio-tec Biologische Naturverpackungen (BIOPLAST BIOPLASTICS FOR A BETTER LIFE), T‑2/20, not published, EU:T:2020:493, paragraph 67).

91      It follows from all of the foregoing considerations that the Board of Appeal was right to conclude that, overall, the marks at issue had only a low degree of phonetic similarity and that they were not visually and conceptually similar.

 The likelihood of confusion

92      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).

93      In the present case, the Board of Appeal concluded that there was no likelihood of confusion or association on the part of the relevant public, despite the identity of the goods at issue, taking into account, in essence, the fact that the marks at issue, taken as a whole, were visually dissimilar, had at best a low degree of phonetic similarity, were not conceptually similar, that the earlier mark had an average degree of inherent distinctiveness and that the relevant public’s level of attention was average (paragraphs 51 to 56 of the contested decision).

94      The applicant disputes that finding. It submits that there is a ‘direct’ likelihood of confusion having regard to the identity of the goods at issue, the at-least-average degree of similarity between the marks, the normal inherent distinctiveness of the earlier mark, the low to average level of attention of the relevant public and the fact that the goods at issue are generally bought on sight by that public.

95      The applicant also claims that, in the contested decision, no account was taken of the existence of an ‘indirect’ likelihood of confusion. However, according to the applicant, given the identity of the goods at issue, the normal inherent distinctiveness of the earlier mark and the at-least-average degree of similarity between those marks, the relevant public will automatically assume that there are legal or economic links between the applicant and the intervener. It adds that that public, even if it were to see the differences between the marks at issue noted in the contested decision, will assume that the contested mark is a playful variation of the earlier mark. At the hearing, in response to a question from the Court, the applicant confirmed that by ‘indirect’ likelihood of confusion it alluded to the likelihood of association.

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

97      In the present case, as has been confirmed in paragraph 34 above, the goods at issue are identical. The marks at issue are not visually and conceptually similar and have, at best, a low degree of phonetic similarity (see paragraphs 69, 75 and 83 above).

98      Similarly, as the Board of Appeal has found (see paragraph 51 of the contested decision), and without that finding being challenged by the applicant, it must be held that the inherent distinctive character of the earlier mark is normal.

99      It should be added that, in view of the nature of the goods at issue, the Board of Appeal was right to point out, in paragraph 53 of the contested decision, that, in the present case, the visual aspect plays a more important role in the global assessment of the likelihood of confusion. Those goods are everyday consumer goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark which designates them visually. The low degree of phonetic similarity established between the marks at issue cannot therefore offset the visual and conceptual differences between those marks.

100    In that regard, it should be borne in mind that the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark designating those goods visually (judgment of 11 December 2014, Coca-Cola v OHIM – Mitico (Master), T‑480/12, EU:T:2014:1062, paragraph 68).

101    In the light of the considerations set out in paragraphs 97 to 100 above and in view of the principle of interdependence referred to in paragraph 92 above, it must be held that the Board of Appeal did not commit an error of assessment in finding that there was no likelihood of confusion on the part of the relevant public. The fact, relied on by the applicant, that the level of attention of that public may vary from low to average (see paragraph 28 above), rather than being average, as found by the Board of Appeal, cannot affect that conclusion.

102    Furthermore, the applicant’s assertion that the relevant public, faced with the contested mark, will assume that there are legal or economic links between the applicant and the intervener must be rejected. Since the marks at issue differ visually and conceptually and have, at best, only a low degree of phonetic similarity, such a likelihood of association must be ruled out. Furthermore, in the light of those differences, it cannot be accepted that the relevant public might perceive the contested mark as a playful variation of the earlier mark.

103    It follows from all of the foregoing considerations that the single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, must be rejected and, consequently, the action must be dismissed in its entirety.

 Costs

104    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.

105    Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders PAO Moscow Confectionery Factory ‘Krasnyj Octyabr’ to pay the costs.

Delivered in open court in Luxembourg on 1 June 2022.

*      Language of the case: English.

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