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

JUDGMENT OF THE GENERAL COURT (Tenth Chamber)

8 June 2022 (*)

(EU trade mark – Opposition proceedings – Application for EU figurative mark POLO CLUB, DÜSSELDORF EST. 1976 – Earlier national figurative mark POLO CLUB – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑355/21,

Polo Club Düsseldorf GmbH & Co. KG, established in Düsseldorf (Germany), represented by C. Weil, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl and J. Crespo Carrillo, acting as Agents,

defendant,

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

Company Bridge and Life, SL, established in Elche (Spain), represented by J. Gracia Albero and D. Gómez Sánchez, lawyers,

THE GENERAL COURT (Tenth Chamber),

composed of A. Kornezov, President, E. Buttigieg and K. Kowalik-Bańczyk (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure,

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

1        By its action based on Article 263 TFEU, the applicant, Polo Club Düsseldorf GmbH & Co. KG, seeks, in essence, the annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 April 2021 (Case R 1667/2020-1) (‘the contested decision’).

 Background to the dispute

2        On 13 November 2018, the applicant filed an application for registration of an EU trade mark at 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).

3        Registration as a mark was sought for the following figurative sign:

4        The goods in respect of which registration was sought are in, inter alia, Classes 18 and 25 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:

–        Class 18: ‘Umbrellas and parasols; Walking sticks; Luggage, bags, wallets and other carriers; saddlery made of leather and imitation of leather, whips and animal apparel; Parts and accessories for all the aforesaid goods, included in this class; Animal harnesses; Saddle trees; Fastenings for saddles; Saddlery; Saddlery of leather; saddlery, whips and animal apparel; Riding saddles; Articles of clothing for horses; Horse blankets; Spats and knee bandages for horses; Equine leg wraps; Saddlecloths for horses; Animal coats; Animal skins, hides; Trunks and travelling bags; Umbrellas, big umbrellas and walking sticks; Saddlery, In particular saddles, Riding saddle, Riding saddles, English saddles, saddle parts, saddle components, Saddle covers, Saddle pads and Coatings saddles; Harnesses; Riding crops; Bridles, Cavessons; Halters for horses, Ropes for horses, Tethers for horses; Saddle blankets, sweat rugs, Horse blankets; Leg guards and spats for horses’;

–        Class 25: ‘Clothing; Headgear; Footwear; Parts and accessories for all the aforesaid goods, included in this class’.

5        The trade mark application was published in European Union Trade Marks Bulletin No 2019/56 of 21 March 2019.

6        On 21 June 2019, the intervener, Company Bridge and Life, SL, filed a notice of opposition, pursuant to Article 46 of Regulation 2017/1001, to registration of the mark applied for, in respect of, inter alia, the goods referred to in paragraph 2 above.

7        The opposition was based on the following earlier Spanish figurative mark, filed on 30 October 2018 and registered on 22 April 2019 under number 3741732. The intervener claimed the colour green for that mark, reproduced below:

8        The goods covered by the earlier mark are in Classes 18 and 25 and correspond, for each of those classes, to the following description:

–        Class 18: ‘Imitation leather; animal skins; luggage articles and transport bags; umbrellas and parasols; walking sticks; whips, harnesses and saddlery articles; animal collars, straps and clothing;’

–        Class 25: ‘Clothing, headgear, footwear’.

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

10      On 11 June 2020, the Opposition Division partially upheld the opposition and refused registration of the mark applied for in respect of the following goods:

–        Class 18: ‘Umbrellas and parasols; Walking sticks; Luggage, bags, wallets and other carriers; Parts and accessories for all the aforesaid goods, included in this class; Trunks and travelling bags; Umbrellas, big umbrellas and walking sticks;’

–        Class 25: ‘Clothing; Headgear; Footwear; Parts and accessories for all the aforesaid goods, included in this class’.

11      On 10 August 2020, the applicant filed a notice of appeal with EUIPO pursuant to Articles 66 to 71 of Regulation 2017/1001 against the Opposition Division’s decision in so far as it partially upheld the opposition.

12      By the contested decision, the Board of Appeal dismissed the applicant’s appeal on the ground that, as regards the goods referred to in paragraph 10 above, there was a likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation 2017/1001, as regards the origin of the goods covered by the marks at issue.

 Forms of order sought

13      The applicant claims that the Court should alter the contested decision and reject the opposition.

14      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

15      The intervener contends that the Court should:

–        confirm the contested decision;

–        order the applicant to bear the costs, including those incurred before the Opposition Division and before the Board of Appeal of EUIPO.

 Law

 Scope of the forms of order sought by the parties

16      In the first place, since the application contains only one head of claim, formally seeking to alter the contested decision, the applicant necessarily seeks, by this head of claim, not only the alteration of the decision, but also the annulment thereof, which moreover, can be deduced from the submission of the applicant’s single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 (see, to that effect, judgment of 27 February 2014, Advance Magazine Publishers v OHIM – Nanso Group (TEEN VOGUE), T‑509/12, EU:T:2014:89, paragraphs 15 and 16 and the case-law cited).

17      In the second place, given that upholding the contested decision is tantamount to dismissing the action, the form of order sought by the intervener in the first head of claim should be understood as requesting, in essence, that the action be dismissed (see, to that effect, judgments of 23 February 2010, Özdemir v OHIM – Aktieselskabet af 21. november 2001 (James Jones), T‑11/09, not published, EU:T:2010:47, paragraph 14, and of 5 February 2016, Kicktipp v OHIM – Italiana Calzature (kicktipp), T‑135/14, EU:T:2016:69, paragraph 19 (not published and the case-law cited)).

 Infringement of Article 8(1)(b) of Regulation 2017/1001

18      In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It submits, in essence, that there is no likelihood of confusion between the marks at issue since, first, those marks have a low degree of overall similarity and, second, the earlier mark is devoid of distinctive character or has a weak distinctive character.

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

20      It should be noted at the outset, that under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. Furthermore, under Article 8(2)(a)(ii) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered 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.

21      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 line of 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 in question (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).

22      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks 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).

 The relevant public and its degree of attention

23      In the present case, the Board of Appeal found, in paragraphs 20 and 21 of the contested decision, that the goods at issue were aimed at the general public, with an average degree of attention, and that, as the opposition was based on an earlier Spanish mark, it is the general public in Spain that had to be taken into account.

24      That definition of the relevant public and its degree of attention is not disputed by the parties.

 Comparison of the goods at issue

25      In the present case, the Board of Appeal found, in paragraphs 24 to 28 of the contested decision, that the goods at issue were either identical or similar to a high degree.

26      The parties do not dispute that assessment.

 Comparison of the marks at issue

27      The global assessment of the likelihood of confusion in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, account being taken, in particular, of 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 proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

28      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 (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 42). 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 (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

29      In the present case, the Board of Appeal found, in essence, in paragraphs 40 to 48 of the contested decision, that the marks at issue had a low degree of visual similarity, an average degree of phonetic similarity and a high degree of conceptual similarity. It inferred from this that those marks were ‘similar overall to at least an average degree’.

30      The applicant submits that, taking into account their low degree of visual, phonetic and conceptual similarity, the marks at issue have an overall low degree of similarity.

–       The distinctive and dominant elements of the marks at issue

31      In the present case, before addressing the question of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the assessment of the distinctive and dominant elements of those marks carried out by the Board of Appeal.

32      In accordance with the case-law, when assessing the dominant character of one or more given components of a complex 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. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).

33      Moreover, it should be noted that where a trade mark is composed of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37).

34      In paragraph 41 of the contested decision, the Board of Appeal found that the respective figurative elements of the marks at issue occupy a co-dominant position with their common word elements ‘polo club’, which consist, as regards the earlier mark, in their only word elements and in the case of the mark applied for, in their first word elements.

35      The applicant submits, in essence, that the figurative elements of the marks at issue are their dominant elements and that the word elements ‘polo club’ are distinctive to a low degree in relation to the goods at issue.

36      In the first place, as regards the analysis of the earlier mark, it should be noted that, first, neither of the two components of that mark are more visually striking than the other, the latter being a figurative mark consisting of the word element ‘polo club’ depicted in capital letters below the figurative element representing a polo player with a mallet in his hand. It follows that the two components of the earlier mark are co-dominant.

37      Second, the designations ‘polo club’, the meaning of which will be understood by the relevant public as referring to a club dedicated to playing polo, have an average distinctive character in respect of the goods at issue. As the Board of Appeal rightly states, although the goods in Class 25 covered by that mark may be used to play polo, they are not specially designed for playing that sport. The same is true, a fortiori, for some goods in Class 18 and covered by that mark, namely ‘imitation leather; animal skins; luggage articles and transport bags; umbrellas and parasols; animal collars, straps and clothing’ which have no connection with the practice of that sport (see, to that effect, judgment of 26 March 2015, Royal County of Berkshire Polo Club v OHIM – Lifestyle Equities (Royal County of Berkshire POLO CLUB), T‑581/13, not published, EU:T:2015:192, paragraph 49).

38      In the second place, as regards the analysis of the mark applied for and as the Board of Appeal pointed out in paragraph 33 of the contested decision, that mark consists of two groups of elements. First, on the left there is a figurative element representing a head of a horse behind which two polo mallets are crossed and accompanied by, in the spaces thus created, the letters ‘p’, ‘c’ and ‘d’ in upper case. Second, to the right of that figurative element, three word elements are superimposed, namely, at the top, the words ‘polo club’ in capital letters, in the middle, ‘düsseldorf’ in slightly smaller upper-case letters and, at the bottom, ‘est.1976’ in much smaller capital letters.

39      In those circumstances, in view of their position in the mark applied for and their size, the word elements ‘polo club’ appear to be the co-dominant elements of that mark, with the figurative element. Furthermore, in the light of the case-law cited in paragraph 33 above, those word elements are more distinctive than the figurative element of the mark applied for in respect of the goods at issue.

40      By contrast, the word elements ‘düsseldorf’ and ‘est.1976’ appear to be secondary in the light of their position and small size, and in so far as they merely indicate the location and the year of the polo club’s establishment respectively. The same applies to the letters ‘p’, ‘c’ and ‘d’ which will be perceived as the acronym of Polo Club Düsseldorf by the relevant public, as the Board of Appeal noted in paragraph 39 of the contested decision.

41      It follows from the foregoing that the words ‘polo club’ are both co-dominant and the most distinctive elements in each of the marks at issue.

–       The visual comparison

42      In the present case, the Board of Appeal found that the marks at issue had a low degree of visual similarity.

43      The applicant agrees with the Board of Appeal’s assessment. The intervener, for its part, contends that the degree of visual similarity between the marks at issue is high.

44      In the first place, the marks at issue coincide in their common word elements ‘polo club’. As the Board of Appeal correctly noted, they include the only word elements in the earlier mark and the first word elements in the mark applied for so they will draw the consumers’ attention in so far as the consumer attaches more importance to the first part of marks (judgment of 17 March 2004, El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR), T‑183/02 and T‑184/02, EU:T:2004:79, paragraph 81). Likewise, in the light of the case-law cited in paragraph 33 above, it must be concluded that the word elements ‘polo club’ are more distinctive than the figurative elements which make up the marks at issue.

45      Furthermore, it is necessary to take into account the fact that the only word elements of the earlier mark are entirely included in the mark applied for. According to the Court’s settled case-law, that fact alone and as a rule, is liable to create both a strong visual and phonetic similarity between the marks at issue (see, to that effect, judgment of 12 December 2017, For Tune v EUIPO – Simplicity trade (opus AETERNATUM), T‑815/16, not published, EU:T:2017:888, paragraph 53 and the case-law cited).

46      In addition, the other word elements composing the mark applied for, namely the words ‘düsseldorf’ and ‘est. 1976’, are, as EUIPO and the intervener point out, of a secondary character, as follows from paragraph 40 above.

47      In the second place, and as the intervener contends, it is true that the marks at issue both contain figurative or graphic elements ‘specific to polo’ such as the mallet, polo player or horse.

48      Nevertheless, there are notable differences between the figurative elements of the marks at issue. First, unlike the polo player walking with a mallet in one hand in the figurative element of the earlier mark, the mallets represented in the mark applied for are, first of all, two in number, secondly, are crossed and accompanied, in the spaces created by them, with the letters ‘p’, ‘c’ and ‘d’ in upper case and, thirdly, are represented behind a head of a horse. Second, unlike the earlier mark, the figurative element of the mark applied for consists of, in addition to the representation of the two mallets, a head of a horse of significant size, and not in the representation of a polo player.

49      In those circumstances, it must be concluded that the marks at issue have at least a low degree of visual similarity.

–       The phonetic comparison

50      The Board of Appeal noted that the marks at issue had an average degree of phonetic similarity.

51      The applicant disputes the Board of Appeal’s assessment and claims that the marks at issue are phonetically similar to a low degree, given the presence, in the mark applied for, of the word element ‘düsseldorf’, which is distinctive.

52      In that regard, it is noteworthy that it is probable that the relevant public will not pronounce the word elements ‘düsseldorf’ and ‘est. 1976’ nor the letters ‘p’, ‘c’ and ‘d’ in the mark applied for, because both those elements have a secondary role in that mark, therefore the relevant public will consider that their pronunciation is inappropriate for the purpose of referring to the goods which the marks at issue designate. Similarly, the figurative elements of the marks at issue will not be pronounced.

53      In those circumstances, as is apparent from the case-law referred to in paragraph 44 above, the phonetic comparison must be based primarily on the pronunciation of the word elements ‘polo club’, common to the marks at issue. Those identical elements are the most distinctive of the marks at issue and constitute the only word elements in the earlier mark whereas, in the mark applied for, they occupy the first position among the word elements constituting that mark.

54      That finding cannot be called into question by the applicant’s argument according to which the word element ‘düsseldorf’ is ‘remarkably’ distinctive. That element, as stated in paragraph 52 above, occupies a secondary position in the mark applied for. Consequently and taking into account the natural tendency of consumers to abbreviate long signs and not to pronounce all the word elements of which they consist (see, to that effect, judgment of 20 September 2019, M. I. Industries v EUIPO – Natural Instinct (Nature’s Variety Instinct), T‑287/18, not published, EU:T:2019:641, paragraph 71 and the case-law cited), it is unlikely to be pronounced.

55      In those circumstances, it must be concluded that the marks at issue have at least an average degree of phonetic similarity.

–       The conceptual comparison

56      The Board of Appeal found that the marks at issue had a high degree of conceptual similarity.

57      The applicant submits that the marks at issue are very different and have a low degree of conceptual similarity.

58      In that regard, it must be pointed out that the relevant public will immediately understand that the marks at issue refer to the sport of polo and polo clubs. The visual differences between the marks at issue will not prevent the relevant public from identifying the general reference to polo present in or made by those marks, as the Board of Appeal noted.

59      As regards the word element ‘düsseldorf’, it must be stated that, as the Board of Appeal pointed out, that element will be perceived as a reference to a city in Germany and, therefore, might evoke the location of the polo club. However, contrary to what the applicant claims, the fact – assuming it were established – that the relevant public would understand the earlier mark as a reference to polo generally and the mark applied for as a reference to a specific polo club located in the city of Düsseldorf would reduce the degree of conceptual similarity between the marks at issue only very slightly, in so far as both those marks would nevertheless continue to refer to the idea of polo playing (see, to that effect, judgment of 26 March 2015, Royal County of Berkshire POLO CLUB, T‑581/13, not published, EU:T:2015:192, paragraph 69).

60      In addition, it must be noted that the analogy drawn by the applicant between a specific polo club and the football club in Barcelona is irrelevant. The applicant does not put forward any evidence at all as grounds for concluding that it is possible to compare the general public’s knowledge of polo with its knowledge of football; nor has the applicant explained how the Düsseldorf polo club concerned in this case would be comparable, in the eyes of that public, to the football club in question (see, to that effect, judgment of 26 March 2015, Royal County of Berkshire POLO CLUB, T‑581/13, not published, EU:T:2015:192, paragraph 70).

61      In those circumstances, it must be concluded that the marks at issue have a high degree of conceptual similarity.

 The earlier mark’s distinctive character

62      In paragraphs 38 and 52 of the contested decision, the Board of Appeal found that the earlier mark had an average distinctive character, in so far as its two elements, namely, first, the image of a polo player, and, second, the words ‘polo club’, had ‘normal’ inherent distinctive character with regard to the goods in Class 25 covered by that mark and inherent distinctive character ‘more enhanced and at the very least normal’ for certain goods in Class 18 covered by that mark.

63      The applicant submits that the earlier mark has a weak distinctive character. According to the Board of Appeal, first, the words ‘polo club’ are descriptive of the goods covered by the earlier mark or have, at least, a weak distinctive character and, second, only the image of a polo player could be distinctive. Furthermore, as regards the distinctive character of the words ‘polo club’, there is no need to treat the goods differently according to the class to which they belong.

64      As has been pointed out in paragraphs 37 and 41 above, the words ‘polo club’ have an average distinctive character for all of the goods at issue. That is also true of the image of a polo player, since the goods at issue in Class 25 are not specifically designed for polo playing and since the goods at issue in Class 18 have no connection with that practice.

65      Consequently, the Board of Appeal did not err in finding that the words ‘polo club’ had, at least, an average distinctive character. The Board of Appeal was also correct in finding, implicitly but necessarily, that those words were not descriptive of both the goods at issue in Class 18 and those in Class 25.

66      In those circumstances, it must be held that the Board of Appeal was correct in finding that the earlier mark had, as a whole, an average distinctive character.

 The likelihood of confusion

67      A global assessment of the likelihood of confusion implies some interdependence between the relevant factors, and in particular, a similarity between the trade marks and that of the goods or services covered. Accordingly, a lesser degree of similarity between these goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

68      In the present case, the Board of Appeal found that the likelihood of confusion had been established, particularly taking into account, first, the identity or high degree of similarity of the goods at issue, next, the average distinctive character of the earlier mark and, lastly, the similarity between the marks at issue, especially from a phonetic and conceptual perspective.

69      In that regard, the applicant submits that, first, the weak distinctive character of the earlier mark, and, second, the low degree of overall similarity of the marks at issue, necessarily exclude any likelihood of confusion. In particular, it submits that the Board of Appeal should have given greater weight to the visual aspect of the marks at issue in its analysis of the likelihood of confusion.

70      However, first, as is apparent from paragraphs 62 to 66 above, the earlier mark has an average degree of distinctive character.

71      Secondly, it should be noted that, as the Board of Appeal correctly pointed out, given the identity or high degree of similarity of the goods at issue, even a moderate similarity between the signs may lead to a likelihood of confusion (see, to that effect, judgment of 6 April 2017, Azanta v EUIPO – Novartis (NIMORAL), T‑49/16, not published, EU:T:2017:259, paragraph 61 and the case-law cited). In the present case, as is apparent from paragraphs 27 to 61 above, the marks at issue have, visually, at least a low degree of similarity, phonetically, at least an average degree of similarity and, conceptually, a high degree of similarity. In those circumstances, as the Board of Appeal correctly found, the similarities between the marks at issue, in particular phonetically and conceptually, cannot be offset by the existence of visual differences.

72      In those circumstances, it must be stated that the Board of Appeal was correct in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 in the present case.

73      Accordingly, the single plea in law put forward by the applicant must be rejected and, consequently, the action must be dismissed in its entirety.

 Costs

74      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. 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.

75      In addition, the intervener has submitted that the applicant should be ordered to pay the costs incurred by the intervener in the administrative proceedings before EUIPO. In that regard, it must be borne in mind that, under Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. However, that does not apply to costs incurred for the purposes of the proceedings before the Opposition Division. Accordingly, the intervener’s request that the applicant, having been unsuccessful, should be ordered to pay the costs of the administrative proceedings before EUIPO can be allowed only as regards the costs necessarily incurred by the intervener for the purposes of the proceedings before the Board of Appeal.

On those grounds,

THE GENERAL COURT (Tenth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Polo Club Düsseldorf GmbH & Co. KG to pay the costs, including those necessarily incurred by Company Bridge and Life, SL for the purposes of the proceedings before the Board of Appeal of the European Union Intellectual Property Office (EUIPO).

Delivered in open court in Luxembourg on 8 June 2022.

*      Language of the case: English.

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