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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

13 July 2022 (*)

(EU trade mark – Opposition proceedings – Application for the EU figurative mark Rejeunesse – Earlier EU word mark REVANESSE – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑543/21,

Purasac Co. Ltd, established in Anyang-si (South Korea), represented by P. Lee, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Sliwinska 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

Prollenium Medical Technologies, Inc., established in Aurora, Ontario (Canada), represented by R. Lyxell, lawyer,

THE GENERAL COURT (Third Chamber),

composed of G. De Baere (Rapporteur), President, V. Kreuschitz and S. Kingston, 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 brought under Article 263 TFEU, the applicant, Purasac Co. Ltd, seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 2 July 2021 (Case R 146/2021‑4) (‘the contested decision’).

 Background to the dispute

2        On 29 August 2019, the applicant filed an application for an EU trade mark with EUIPO for the following figurative sign:

3        The mark applied for designated goods 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 corresponding to the following description: ‘Injectable dermal fillers; Injectable pharmaceuticals’.

4        On 28 October 2019, the intervener, Prollenium Medical Technologies, Inc., filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

5        The opposition was based, inter alia, on the earlier EU word mark REVANESSE designating, inter alia, goods in Class 5 corresponding to the following description: ‘Gel for use in cosmetic surgery, wound healing and medical cosmetic treatment’.

6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of 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).

7        On 8 December 2020, the Opposition Division upheld the opposition in respect of all the goods referred to in paragraph 3 above on the ground that there was a likelihood of confusion, at the very least on the part of the Spanish-speaking public.

8        On 22 January 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By the contested decision, the Board of Appeal dismissed the appeal. It held that, having regard to the identity of the goods in question, to the higher than average phonetic and visual similarity of the signs and to the normal inherent distinctiveness of the earlier mark, there was a likelihood of confusion, at the very least on the part of the Spanish-speaking part of the relevant public, even when taking into account the higher level of attention of that public.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

11      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

12      The intervener contends that the Court should:

–        uphold the contested decision;

–        order the applicant to pay the costs.

 Law

13      As a preliminary point, regarding the intervener’s first head of claim, given that ‘upholding’ the contested decision is tantamount to dismissing the action, the intervener’s first head of claim should be understood as requesting, in essence, that the action be dismissed (judgments of 5 February 2016, Kicktipp v OHIM – Italiana Calzature (kicktipp), T‑135/14, EU:T:2016:69, paragraph 19 (not published), and of 24 September 2019, Roxtec v EUIPO – Wallmax (Representation of a black square containing seven concentric blue circles), T‑261/18, EU:T:2019:674, paragraph 16).

14      In support of the action, the applicant raises a single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001.

15      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, 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.

16      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).

17      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).

18      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited).

 The relevant territory and public

19      Regarding the relevant territory for the purposes of the analysis of the likelihood of confusion, the Board of Appeal stated, in essence, in paragraph 11 of the contested decision, that it was the European Union, as the earlier mark was an EU mark.

20      Regarding the relevant public, it found, in paragraph 12 of the contested decision, that its examination, like that of the Opposition Division, could centre on the Spanish-speaking part of that public. Moreover, in paragraph 27 of the contested decision, it considered that the goods in Class 5 covered by the marks in question were directed at the general public and medical professionals. The level of attention of the professional public was high and that of the general public was also higher, given that those goods are health-related.

21      The applicant does not dispute those assessments, so there is no need to call them into question.

 The comparison of the goods

22      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, inter alia, their nature, their intended purpose and 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 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).

23      In addition, it is apparent from case-law that where the goods in respect of which an earlier mark is protected include the goods covered by a trade mark application, those goods are considered to be identical (see, to that effect, judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited).

24      In paragraph 14 of the contested decision, the Board of Appeal stated that the ‘gel for use in cosmetic surgery, wound healing and medical cosmetic treatment’ in Class 5 and protected by the earlier mark included pharmaceutical and dermatological products and preparations in gel form, which could be injectable; those goods therefore overlapped with the ‘injectable dermal fillers; injectable pharmaceuticals’ in Class 5 and covered by the mark applied for. It found that the goods in question were identical.

25      The applicant submits that a gel can be injected but can also be applied externally to the body. The method of application of the goods in question should be taken into account when comparing them. According to the applicant, only part of the goods covered by the earlier mark could be regarded as identical to the goods covered by the mark applied for, that is, those which are injectable. The list of goods covered by the earlier mark is not restricted to gels that are injectable exclusively, such that it must be considered that the intervener intended to designate also gels for external use. The applicant infers that the goods are not identical, but rather, at most, similar.

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

27      As noted by EUIPO, the applicant acknowledges that the goods covered by the earlier mark, namely ‘gel for use in cosmetic surgery, wound healing and medical cosmetic treatment’ can be injected, similarly to the injectable dermal fillers and pharmaceuticals covered by the mark applied for. In that connection, the applicant does not dispute the well-known fact, raised by the Board of Appeal in paragraph 15 of the contested decision, that gels for use in cosmetic surgery and medical cosmetic treatment are usually injected.

28      The applicant does not, therefore, call into question that there is an overlap between the goods at issue. It merely argues that the gels covered by the earlier mark can also be applied externally and that, as the goods covered by the mark applied for are injectable exclusively, the goods at issue should be regarded as merely identical in part or only similar.

29      However, it is sufficient to note, as the applicant moreover acknowledges, that the method of applying the goods protected by the earlier mark is not specified. There is therefore no reason to distinguish, within those goods, between gels which are injected and gels which are applied externally. In any event, given that the goods protected by the earlier mark can be injected or applied externally, those goods must be regarded as forming a broader category of goods including the goods that are injectable alone and that are covered by the mark applied for, with the result that, pursuant to the case-law cited in paragraph 23 above, the goods at issue must be regarded as identical.

30      Therefore, the Board of Appeal was fully entitled to find that the goods in question are identical.

 The comparison of the signs

31      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).

32      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. 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 (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 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 (judgments of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43, and of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (Happy Moreno choco), T‑498/18, EU:T:2019:763, paragraph 71).

33      In the present case, after having described the marks at issue and determined the more or less distinctive or dominant nature of the elements making up the mark applied for, the Board of Appeal compared the signs, taking into account, similarly to the Opposition Division, the perception of those signs by the Spanish-speaking public. It found that, for that public, the signs had a higher than average degree of visual and phonetic similarity and that the conceptual comparison was neutral.

34      The applicant complains that the Board of Appeal found that the signs at issue were similar. Although it agrees with the Board of Appeal’s finding that the conceptual comparison of the signs is neutral, it does, however, dispute the Board of Appeal’s findings relating to the distinctive and dominant elements of the mark applied for and to the visual and phonetic comparison of the signs.

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

 The distinctive and dominant element of the mark applied for

36      In paragraph 19 of the contested decision, the Board of Appeal noted that the word ‘rejeunesse’ was the distinctive and dominant part of the mark applied for, while the figurative element, made up of a black drop containing a white, highly stylised, flower, played a secondary role. In that connection, it stated that the word ‘rejeunesse’ had no meaning for the Spanish-speaking public and therefore had a normal degree of distinctiveness. Given that (i) consumers tend to focus on the word elements of a composite mark, (ii) the figurative element is small, and (iii) the representation of a flower is not particularly distinctive in respect of the goods applied for, the Board of Appeal found that the figurative element will be perceived primarily as decorative.

37      The applicant submits that the figurative element is particularly eye-catching for the relevant public, so that it should be regarded as the distinctive and dominant element of the mark applied for. That element plays a similar role to that of an oversized point of an ‘i’ or of an exclamation mark. It is the same size as the word element and remains clearly visible, even from a distance. The applicant adds that it is not apparent from the case-law that, in the case of marks consisting of both word and figurative elements, the former must systematically be regarded as dominant.

38      EUIPO and the intervener dispute the arguments put forward by the applicant.

39      In the first place, it must be noted that neither the size nor the position of the figurative element in the sign makes that element dominant.

40      While it may be accepted that the size of that element is the same as that of the word element, it should nevertheless be noted, as did EUIPO, that that word element ‘rejeunesse’ is longer and occupies more space within the sign. In that connection, the alleged visibility of the figurative element from a distance has no impact on its size or on the question of which element of the sign, as the case may be, dominates the image which members of the relevant public retain, according to the case-law cited in paragraph 32 above.

41      In addition, contrary to the applicant’s claim, the figurative element does not hold any particular position within the sign that might highlight it. In that connection, it cannot be stated that that element acts as a point on the ‘i’ of the word ‘rejeunesse’ since, in addition to the fact that that word does not contain an ‘i’, that element is situated over the letter ‘n’. It cannot be stated either that that element plays a role similar to that of an exclamation mark given that it has neither the classical form or function thereof, that is to say, that of ending an exclamatory phrase.

42      In the second place, the Board of Appeal noted correctly that consumers tend to focus on the word elements of a mark. According to case-law, where a mark is composed of word elements and figurative elements, the former are, as a rule, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting the name rather than by describing the figurative element of the mark (judgments of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37, and of 8 July 2020, Pablosky v EUIPO – docPrice (mediFLEX easySTEP), T‑21/19, EU:T:2020:310, paragraph 74 (not published)).

43      Admittedly, as raised by the applicant, the case-law does not show that, in the case of mixed marks comprising both graphic and word elements, the word elements must systematically be regarded as dominant (judgment of 17 July 2008, L & D v OHIM, C‑488/06 P, EU:C:2008:420, paragraph 55). In certain cases, in a composite sign, the figurative element may therefore rank at least equally with the word element (see judgment of 12 May 2021, Metamorfoza v EUIPO – Tiesios kreivės (MUSEUM OF ILLUSIONS), T‑70/20, not published, EU:T:2021:253, paragraph 58 and the case-law cited).

44      However, it follows from paragraphs 39 to 41 above that neither the position nor the size of the figurative element in question makes it dominant within the sign. In addition, the applicant has not provided any arguments to show that the figurative element is more distinctive than the word element. More specifically, it did not challenge the Board of Appeal’s assessment that the perception of a flower is not particularly distinctive in relation to the goods concerned. Nor did it challenge the Board of Appeal’s finding that the word ‘rejeunesse’ had, for its part, an average degree of distinctiveness. There is therefore no need to diverge from the case-law cited in paragraph 42 above in the present case.

45      It follows that the Board of Appeal did not err in finding that the word element ‘rejeunesse’ was the distinctive and dominant element of the mark applied for and that the figurative element played merely a secondary role and would be perceived primarily as decorative.

 Visual comparison

46      In paragraph 21 of the contested decision, the Board of Appeal found that the word ‘revanesse’, making up the earlier mark, and the word ‘rejeunesse’, making up the dominant and distinctive part of the mark applied for, coincided in their first and last letters and differed only in their central letters, that is, ‘v’ and ‘a’ and ‘j’, ‘e’ and ‘u’, respectively. The marks in question also differed in the presence of the figurative element in the mark applied for, although that element played only a secondary role. It found that the conflicting signs had a higher than average degree of visual similarity.

47      First of all, the applicant argues that the earlier mark is made up of 9 letters, while the word element of the mark applied for has 10 letters. The signs do not share a significant amount of letters in the same position. Moreover, the second syllables of the signs in question, namely ‘jeu’ and ‘va’, are different. However, the central elements of signs are as important as the elements at the beginning and end of signs.

48      Next, it submits that the word making up the earlier mark is written in capital letters and differs from ordinary spelling, whereas only the first letter of the mark applied for is written in uppercase, in line with writing practices. The unusual use of uppercase has an impact on how the relevant public perceives a sign and, as a result, on the assessment of visual similarity.

49      Last, according to the applicant, the differences between the marks in question, that is, the different central syllable, the presence of the figurative element in the mark applied for and the different spelling of the word elements, outweigh their similarities, with the result that the signs are not similar from a visual standpoint.

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

51      It must be noted that the word ‘revanesse’, making up the earlier mark, and the word ‘rejeunesse’, which is the distinctive and dominant element of the mark applied for, share a significant amount of identical letters in the same position, at the beginning and at the end of those signs. As pointed out by the intervener, those words begin with the letters ‘r’ and ‘e’ and end with the letters ‘n’, ‘e’, ‘s’, ‘s’ and ‘e’. Out of the 9 and 10 letters which make up the words ‘revanesse’ and ‘rejeunesse’, respectively, 7 are therefore identical.

52      It is true that those words differ in their central letters, that is, on the one hand, the letters ‘v’ and ‘a’ in the earlier mark and, on the other hand, the letters ‘j’, ‘e’ and ‘u’ in the mark applied for. However, this does not call into question the similarity resulting from the sequences of identical letters at the beginning and at the end of the signs.

53      In that connection, the applicant cannot rely validly on the case-law, according to which, in respect of word signs which are relatively short, the central elements are as important as the elements at the beginning and end of the sign (judgment of 20 April 2005, Krüger v OHIM – Calpis (CALPICO), T‑273/02, EU:T:2005:134, paragraph 39). The word elements in question are not sufficiently short for their central parts to create a significant visual difference. Moreover, it is sufficient to recall that the Board of Appeal did not find that the central parts of the signs in question were less significant than their initial and final parts, but found, in essence, that, despite their different central letters, the word elements in question produced a highly similar overall impression.

54      Regarding the argument relying on the different spelling of the word elements in question and, more specifically, on the unusual use of uppercase letters in the earlier mark, it must be borne in mind that it is settled case-law that a word mark is a mark made up exclusively of letters, words or an association of words, written in a usual typeface, without any specific graphical element. Consequently, the protection which results from the registration of a word mark concerns the word mentioned in the application for registration and not the specific graphic or stylistic elements which that mark might possibly have (judgments of 3 December 2015, TrekStor v OHIM – Scanlab (iDrive), T‑105/14, not published, EU:T:2015:924, paragraph 59, and of 8 July 2020, Pablosky v EUIPO – docPrice (mediFLEX easystep), T‑20/19, EU:T:2020:309, paragraph 69 (not published)). Given that the earlier mark is a word mark, there is no need to take into account any specific graphic or stylistic elements it might have.

55      Moreover, according to case-law, where a figurative mark containing word elements is visually compared to a word mark, the marks are considered to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lowercase or uppercase, or in colour (see, to that effect, judgment of 24 October 2017, Keturi kambariai v EUIPO – Coffee In (coffee inn), T‑202/16, not published, EU:T:2017:750, paragraph 101 and the case-law cited). In the present case, as is apparent from paragraph 51 above, the word elements in question share a significant number of letters. As for the word element of the mark applied for, it cannot be regarded as highly stylised in so far as the typeface used is not fanciful and in so far as, as the applicant acknowledges, its spelling is in line with writing practices.

56      Last, although it is true that the conflicting signs differ in the presence of the figurative element in the mark applied for, it is sufficient to recall that that element, however, plays merely a secondary role (see paragraph 45 above).

57      It follows that the Board of Appeal correctly found that the conflicting signs had a higher than average degree of visual similarity.

 Phonetic comparison

58      In paragraph 22 of the contested decision, the Board of Appeal found that Spanish consumers will pronounce identically the syllables of the words ‘revanesse’ and ‘rejeunesse’, with the exception of the second syllable, with the same rhythm and intonation. It inferred that the conflicting signs had a higher than average degree of phonetic similarity.

59      The applicant submits that the marks in question have a French connotation and must therefore be pronounced with a French accent. The pronunciation of the second syllables ‘va’ and ‘jeu’ in the marks in question is therefore clearly different. Even if the relevant public does not have sufficient knowledge of French, those syllables are not, in any event, pronounced similarly in the other languages of the European Union. A difference between the central parts of the two word elements in question helps to rule out any phonetic similarity.

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

61      As a preliminary point, it must be borne in mind that, according to the case-law, where a purely figurative mark represents a shape which the relevant public is easily able to recognise and associate with a specific, concrete word, they will use that word to refer to the mark, whereas if a figurative mark also includes a word element, in general it will be through the use of that word element that the relevant public will refer to the mark (judgment of 7 May 2015, Cosmowell v OHIM – Haw Par (GELENKGOLD), T‑599/13, EU:T:2015:262, paragraph 53). In the present case, the relevant public will refer to the mark applied for by pronouncing its word element, that is, the term ‘rejeunesse’.

62      It is common ground that the word element ‘rejeunesse’ making up the mark applied for and the word element ‘revanesse’ making up the earlier mark share identical syllables, at the beginning and end of the sign, that will be pronounced in the same way by the relevant public. Only the pronunciation of the second syllables ‘va’ and ‘jeu’ in those word elements differs.

63      In that connection, it must be noted that the second syllables of the signs in question will be pronounced differently by the Spanish-speaking part of the relevant public, irrespective of whether they will be pronounced in a French accent. Any French connotation of the signs, which, moreover, has not been shown, is therefore not relevant.

64      The difference in pronunciation of the second syllables of the conflicting signs does not, however, have an impact on the finding to which the Board of Appeal came. It found, in essence, that that difference was not capable of offsetting the similarities resulting from the identical pronunciation of the other syllables at the beginning and end of the signs.

65      The applicant is unable to call into question that finding. In that connection, it cannot rely on the judgment of 20 April 2005, CALPICO (T‑273/02, EU:T:2005:134), in order to show that a difference in pronunciation of the central parts of the conflicting marks leads to a finding that those marks are not similar. Indeed, as EUIPO contends, the Court found, in the case that resulted in that judgment, that the Board of Appeal had been fully entitled to find that the signs were not similar phonetically, in so far as two out of three syllables in those signs were clearly different, the main stress in the two signs did not fall on the same syllable and one of the letters in each of the signs was pronounced differently by the relevant public (see, to that effect, judgment of 20 April 2005, CALPICO, T‑273/02, EU:T:2005:134, paragraph 41). In the present case, the word elements in question contain only one different syllable, while the other syllables are pronounced in the same way by the relevant public. Moreover, as noted by the Board of Appeal – without it being disputed by the applicant – both the rhythm of the pronunciation of the signs and the intonation are identical, irrespective of the presence of a different syllable in the middle of the sign.

66      It follows that the Board of Appeal correctly found that the conflicting signs had a higher than average degree of phonetic similarity.

 The likelihood of confusion

67      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, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

68      The applicant submits that the goods covered by the marks in question are, at the very most, similar and that the conflicting signs are in no way similar, with the result that there is no likelihood of confusion.

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

70      It is clear from paragraphs 30, 57 and 66 above that the Board of Appeal correctly found that the conflicting goods were identical and that the signs had a higher than average degree of visual and phonetic similarity, while the conceptual comparison remained neutral. The applicant’s line of argument seeking to show that there is no likelihood of confusion is therefore incorrect.

71      Furthermore, it must be stated that the earlier mark has a normal degree of inherent distinctiveness, which the applicant has not, moreover, disputed.

72      It follows that the Board of Appeal was fully entitled to find that there was a likelihood of confusion on the part of the Spanish-speaking part of the relevant public, even taking into account its high level of attention.

73      As a result, the single plea raised by the applicant must be rejected.

 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.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Purasac Co. Ltd to pay the costs.

Delivered in open court in Luxembourg on 13 July 2022.

*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.