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

JUDGMENT OF THE GENERAL COURT (Second Chamber)

8 February 2023 (*)

(EU trade mark – Opposition proceedings – Application for the EU figurative mark SFR SPORT 1 – Earlier national and international figurative marks sport1 – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – Distinctive character acquired through use – Interdependence between factors)

In Case T‑141/22,

Sport1 GmbH, established in Ismaning (Germany), represented by J. Krekel and C. Otto, lawyers,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by E. Markakis, acting as Agent,

defendant,

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

Société française du radiotéléphone – SFR, established in Paris (France), represented by M. Pasquier, lawyer,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli (Rapporteur), President, S. Frimodt Nielsen and W. Valasidis, 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 under Article 263 TFEU, the applicant, Sport1 GmbH, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 December 2021 (Case R 2329/2020-1) (‘the contested decision’).

 Background to the dispute

2        On 14 December 2016, the intervener, Société française du radiotéléphone – SFR, filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:

3        The mark applied for covered services, following the restriction made in the course of the proceedings before EUIPO, in Classes 35, 38 and 41 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, corresponding, for each of those classes, to the description contained in paragraph 1 of the contested decision.

4        On 5 May 2017, the applicant filed a notice of opposition to registration of the mark applied for in respect of the services referred to in paragraph 3 above.

5        The opposition was based on the following earlier rights:

–        international registration No 1221100 in respect of the figurative sign reproduced below, covering goods in Class 9 corresponding to the description in paragraph 5(a) of the contested decision:

–        the German figurative mark No 302013004460, reproduced below, covering goods and services in Classes 9, 16, 24, 25, 26, 28, 35, 38, 41, 42 et 45 corresponding, in particular, with regard to Classes 9, 35, 38 and 41, to the description in paragraph 5(b) of the contested decision:

–        the company name Sport1 GmbH, in connection with the activities described in paragraph 5(c) of the contested decision.

6        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and Article 8(4) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1) (now Article 8(1)(b) and Article 8(4) 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 9 October 2020, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 on the ground that there was a likelihood of confusion between the mark applied for and the earlier national mark.

8        On 8 December 2021, the intervener filed a notice of appeal with EUIPO against the decision of the Opposition Division.

9        By the contested decision, the Board of Appeal upheld the appeal on the basis of Article 8(1)(b) of Regulation 2017/1001, on the ground that there was no likelihood of confusion between the mark applied for, on the one hand, and the earlier national mark, on the other hand. It found that the outcome was not different if the earlier international registration, which covered a narrower range of goods, was taken into account. Furthermore, the Board of Appeal found that, pursuant to Article 8(4) of Regulation 2017/1001, the opposition was also unfounded in connection with the company name Sport1 GmbH.

 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 incurred by EUIPO.

12      The intervener contends that the Court should:

–        confirm the contested decision;

–        order the applicant to pay the costs.

 Law

13      The applicant relies on two pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001 and, secondly, infringement of Article 8(4) of that regulation.

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

14      The first plea consists of three parts, alleging, in essence, first, that the high degree of distinctiveness acquired through use of the earlier national mark was not taken into account, secondly, that the element ‘sfr’ in the mark applied for was erroneously taken into account and, thirdly, that the interdependence between the factors in the global assessment of the likelihood of confusion was not taken into account.

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. 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.

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

17      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 and services 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 public

18      In the contested decision, the Board of Appeal found that the goods and services at issue were aimed both at the general public, which is deemed to be reasonably well informed and reasonably observant and circumspect, and at professionals with specific knowledge and expertise. It found that the level of attention of that public therefore had to be deemed to vary from normal to high. It took the view that, since the earlier mark was a German national trade mark, the relevant territory had to be considered to be Germany.

19      In the circumstances of the present case, there is nothing in the case file that makes it possible to call into question those assessments on the part of the Board of Appeal, which have not, moreover, been disputed by the parties.

 The comparison of the goods and services

20      In the contested decision, the Board of Appeal found that the services in Classes 35, 38 and 41 covered by the mark applied for were identical or similar to certain goods or services in Classes 9, 35, 38 and 41 covered by the earlier national mark. In particular, first of all, a large proportion of the services in Class 35 covered by the mark applied for were found to be identical to certain services in Class 35 covered by the earlier national mark (paragraphs 42 to 44 of the contested decision), whereas some of those services covered by the mark applied for were found to be ‘similar’ to certain goods or services in Classes 9 and 35 covered by the earlier national mark (paragraphs 45 to 47 of the contested decision) and a smaller proportion of those services covered by the mark applied for were found to be similar ‘to at least a low degree’ or ‘to a low degree’ to certain services in Class 35 covered by the earlier national mark (paragraphs 48 to 51 of the contested decision). Next, the services in Class 38 covered by the mark applied for were found to be identical to certain services in Class 38 covered by the earlier national mark (paragraph 52 of the contested decision). Lastly, a very large proportion of the services in Class 41 covered by the mark applied for were found to be identical to certain services in Class 41 covered by the earlier national mark (paragraphs 53 to 59 of the contested decision), whereas a small proportion of those services covered by the mark applied for were found to be ‘similar’ to certain services in Class 41 covered by the earlier national mark (paragraphs 60 to 62 of the contested decision).

21      In the circumstances of the present case, there is nothing in the case file that makes it possible to call into question those assessments on the part of the Board of Appeal, which have not, moreover, been disputed by the parties.

 The comparison of the signs

22      In the contested decision, first, as regards the distinctive and dominant elements of the signs at issue, the Board of Appeal found, in essence, that the element ‘sport1’ in the marks at issue was weakly distinctive with regard to most of the services at issue and that the element ‘sfr’ in the mark applied for had an average degree of distinctiveness. It took the view that the red square containing the element ‘sfr’ attracted the public’s attention sufficiently to counterbalance the length of the element ‘sport1’. Secondly, in the context of the comparison of the signs, it found that those signs were visually and phonetically similar to, ‘at least, a low degree’ and that they were conceptually ‘similar’.

23      The applicant criticises the Board of Appeal’s analysis of the element ‘sfr’ in the mark applied for because that element is not, in its view, distinctive and should have been disregarded in the comparison of the signs at issue, but it submits that the Board of Appeal correctly found that the signs at issue were similar. In particular, it submits that, ‘as correctly stated by the Board of Appeal … th[ose] signs are’ visually and phonetically ‘similar to, at least, a low degree’ and ‘are conceptually similar’. It contends that, taking into account the coincidences between them, those signs are even ‘highly similar’.

24      EUIPO disputes the applicant’s arguments relating to the distinctive and dominant elements of the signs at issue. The intervener disputes the applicant’s arguments relating both to those distinctive and dominant elements and to the comparison of the signs, which, it submits, must be confirmed as being visually and phonetically similar to, ‘at most’, a low degree and should be held to be conceptually similar to, ‘at most’, a low degree.

25      It must be stated at the outset that the applicant does not dispute, but, on the contrary, expressly agrees with the outcome of the visual, phonetic and conceptual comparison of the signs which the Board of Appeal carried out in the contested decision, in the sense that the signs at issue ‘are’ visually and phonetically ‘similar to, at least, a low degree’ and are conceptually ‘similar’, an outcome which there is, moreover, no need to call into question.

26      It is true that, first, the applicant does not agree with the Board of Appeal’s analysis of the distinctive and dominant elements of the signs at issue. However, in the circumstances of the present case, since the applicant expressly states that, in spite of that difference, the Board of Appeal ‘correctly’ found that those signs were similar and agrees with the degrees of visual, phonetic and conceptual similarity which were relied on in the contested decision, the applicant’s arguments regarding that analysis must be rejected as ineffective as regards the comparison of the signs, without prejudice, as the case may be, to the possibility of their being taken into account in the context of the global assessment of the likelihood of confusion.

27      Secondly, although the applicant agrees with the outcome of the visual, phonetic and conceptual comparison of the signs carried out by the Board of Appeal, it draws from that outcome the overall conclusion that the signs at issue are ‘highly similar’. However, since such a conclusion is in no way substantiated by the applicant or supported by the Board of Appeal’s findings in the contested decision which have been expressly approved of by the applicant, it must be rejected as unfounded.

28      Furthermore, at this stage, in so far as the intervener submits that it must be confirmed that the signs at issue are visually and phonetically similar to, ‘at most’, a low degree, it is sufficient to point out that that is the result of a misreading of the contested decision, in which the Board of Appeal found, as a result of the comparison of those signs, that they were visually and phonetically similar to, ‘at least’, a low degree (see paragraph 25 above).

29      Consequently, the second part of the first plea must be rejected.

 The distinctive character of the earlier mark

30      In the contested decision, the Board of Appeal stated that it confirmed the findings of the Opposition Division and that, in particular, as the Opposition Division had found, the earlier national mark had acquired a high degree of distinctiveness through its use ‘in relation to, at least, part of the services’ concerned, namely the services of ‘telecommunications; radio and television broadcasts/programmes via wireless and cable networks’ in Class 38 and the services of ‘entertainment’ in Class 41.

31      Furthermore, it is apparent from the contested decision that the Opposition Division found that the earlier national mark had a ‘low to average’ degree of distinctive character in relation to the other goods and services concerned, in respect of which the evidence had not demonstrated that it had acquired a high degree of distinctiveness through use.

32      In the circumstances of the present case, there is nothing in the case file that makes it possible to call into question those assessments, which have not, moreover, been disputed by the parties.

33      However, in so far as the expression ‘at least’ used by the Board of Appeal could be understood as leaving open the definition of the goods and services concerned by the high degree of distinctiveness acquired through use which the adjudicating bodies of EUIPO found to exist, it must be pointed out that that high degree of distinctiveness acquired through use cannot be extended to goods and services other than those which the Board of Appeal specifically identified and which have been referred to in paragraph 30 above. Consequently, in so far as the applicant suggests that the Board of Appeal found that there was a high degree of distinctiveness acquired through use with regard to all of the goods and services covered by the earlier national mark, it must be stated that that is not the case. The Board of Appeal’s analysis relates only to the services which have been referred to in paragraph 30 above without the use of that expression being implicitly capable of extending that scope in an indeterminate way.

 The likelihood of confusion

34      In the contested decision, first, the Board of Appeal began by stating that the signs at issue were visually and phonetically similar to a low degree, whereas the conceptual similarity was of less importance. Secondly, it stated that the distinctive character of the earlier national mark was weak, but could be seen as normal for part of the goods and services covered by that mark. Thirdly, it stated that, with regard to the services which have been referred to in paragraph 30 above, the distinctiveness of the earlier national mark was below normal, but that, given that enhanced distinctiveness had been proved, it could be considered to be normal. Fourthly, it pointed out that the mark applied for contained the word element ‘sfr’ and that ‘these additional verbal elements’ were not negligible and served to compensate for the visual, phonetic and conceptual similarities, since the word element ‘sport1’ was weakly distinctive. Fifthly, after stating that both marks contained the word element ‘sport1’, which had a weaker distinctive character, and that the mark applied for contained the word element ‘sfr’, which was more likely to attract the attention of the public, it found that the differences enabled the relevant public to distinguish clearly between the marks at issue. Sixthly, it found that the element ‘sport1’ did not have an ‘autonomous distinctive position’ in the mark applied for, because neither its position nor its size made it more autonomous. It therefore concluded that there was no reason to assume that the relevant public perceived those marks as having the same commercial origin, even if they were used in respect of identical services and even if the earlier mark had enhanced distinctiveness with regard to some services.

35      The applicant submits, in essence, that the Board of Appeal, after finding that the earlier national mark had a high degree of distinctiveness acquired through use, denied that it had that high degree of distinctiveness acquired through use in the context of the global assessment of the likelihood of confusion and that it misapplied the principle of interdependence between the relevant factors, thus incorrectly overlooking the existence of a likelihood of confusion.

36      EUIPO contends that, in the light of the distinctive and dominant element ‘sfr’ in the mark applied for and the weak distinctive character or even descriptiveness of the element ‘sport1’, which the marks at issue have in common, the relevant public will safely establish a distinction between those marks. According to EUIPO, the earlier national mark’s high degree of distinctiveness acquired through use does not mean that it ceases to be a fact that the element ‘sport’ is a generic descriptor for sport and that the element ‘1’ is a generic descriptor of the first in a sequence. Lastly, EUIPO submits that multiple operators may, without confusion, use the informative expression ‘sport1’ in order to describe their first sports product or service.

37      The intervener contends that the distinctive character of the earlier national mark is weak for most of the goods and services concerned and that the differences between the signs at issue carry more weight in the global assessment of the likelihood of confusion. It submits that there is therefore no likelihood of confusion.

38      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).

39      As is apparent from recital 11 of Regulation 2017/1001, the assessment of the likelihood of confusion depends on numerous elements, in particular the public’s recognition of the trade mark on the market in question. The more distinctive the trade mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24; of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18; and of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 20).

40      In the first place, it must be stated that, as the applicant correctly submits, the Board of Appeal, after finding that the earlier national mark had a high degree of distinctiveness acquired through use in relation to the services which have been referred to in paragraph 30 above, contradictorily and incorrectly found, in the context of its global assessment of the likelihood of confusion, that the distinctiveness of that earlier national mark was normal with regard to those same services.

41      However, it must be borne in mind that distinctive character acquired through use is one of the factors which are relevant for the purpose of assessing the likelihood of confusion. In particular, marks with a highly distinctive character, inter alia on account of their use, enjoy broader protection than marks with less distinctive character. Consequently, unless it disregards the appropriate level of protection which a mark ought to enjoy, the Board of Appeal cannot, after finding that there is a certain degree, in the present case a high degree, of distinctive character acquired through use, alter the extent of that distinctive character by reducing it, inter alia, as in the present case, from high to normal, in the context of its global assessment of the likelihood of confusion.

42      Furthermore, as is submitted, in essence, by the applicant, the reference to the case-law which the Board of Appeal made in paragraph 76 of the contested decision in support of its assessment is entirely unfounded, since, in that paragraph, the Board of Appeal incorrectly referred, treating them as findings of the Court, to the arguments which were submitted by a party in the case which gave rise to the judgment of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE) (T‑602/19, not published, EU:T:2020:463), and were referred to by the Court in paragraph 71 of that judgment.

43      In the second place, it is true that, in the contested decision, at the end of its global assessment of the likelihood of confusion, the Board of Appeal stated that there was no likelihood of confusion ‘even if [the marks at issue were] used for identical services’ and ‘even if the earlier [national mark] ha[d] acquired enhanced distinctiveness for some services’. However, it cannot be held that, in so doing, the Board of Appeal duly took into account the distinctive character of the earlier national mark or that it correctly assessed the factors which are relevant in the context of the overall assessment of the likelihood of confusion, in the light, in particular, of their interdependence.

44      In that regard, it must be borne in mind that the Board of Appeal found, first, that the relevant public had a normal to high level of attention; secondly, that the goods and services concerned were, in part, identical and, in part, similar; thirdly, that the signs at issue were visually and phonetically similar to, at least, a low degree and conceptually similar; and, fourthly, that the earlier national mark had a high degree of distinctiveness acquired through use in relation to the services in Classes 38 and 41 which have been referred to in paragraph 30 above and a low to average degree of inherent distinctiveness with regard to the other goods and services concerned in, inter alia, Classes 9, 35, 38 and 41.

45      Accordingly, in the context of an overall assessment of those various factors, it must be held that the Board of Appeal erred in finding that there was no likelihood of confusion with regard to all of the goods and services concerned.

46      First, as has been pointed out in paragraph 20 above and as is apparent from paragraphs 42 to 44 and 52 to 59 of the contested decision, a large proportion of the services in Classes 35, 38 and 41 covered by the mark applied for were found to be identical to certain services in the same classes covered by the earlier national mark. As regards those identical services, it must be held that the relevant public, when faced with the marks at issue, could indeed be led to believe that those services come from the same undertaking or from economically linked undertakings, since the marks at issue are similar, and that is so even if that similarity is, as the intervener in particular appears to suggest, low in degree from a visual, phonetic and conceptual standpoint. That will a fortiori be the case because it is for some of those identical services in Classes 38 and 41, namely those covered by the earlier national mark which are referred to in paragraphs 52, 53 and 56 of the contested decision and have been referred to in paragraph 30 above, that the earlier national mark has a high degree of distinctiveness acquired through use.

47      The same is true of the other services in Class 41 covered by the mark applied for which, in paragraphs 60 and 61 of the contested decision, were found to be similar to certain services in the same class covered by the earlier national mark with regard to which the earlier national mark has a high degree of distinctiveness acquired through use. The high degree of distinctiveness acquired through use of the earlier national mark in relation to those services could indeed lead the relevant public to believe that the mark applied for refers to the same commercial origin even though those services are not identical but ‘similar’, and that is so even if the marks at issue are, as the intervener in particular appears to suggest, visually, phonetically and conceptually similar to a low degree.

48      It follows that, contrary to what the Board of Appeal found, a likelihood of confusion cannot be ruled out as regards the services referred to in paragraphs 42 to 44 and 52 to 61 of the contested decision which are identical, particularly those with regard to which the earlier national mark has a high degree of distinctiveness acquired through use, and the services which are similar and with regard to which the earlier national mark has a high degree of distinctiveness acquired through use.

49      Secondly and by contrast, as regards the services covered by the mark applied for in Classes 35 and 41 which, in paragraphs 45 to 51 and 62 of the contested decision, were found to be ‘similar’, similar ‘to at least a low degree’ or similar ‘to a low degree’ to certain goods or services in Classes 9, 35 and 41 covered by the earlier national mark with regard to which the earlier national mark does not have a high degree of distinctiveness acquired through use, but has a low to average degree of inherent distinctiveness, the Board of Appeal did not err in finding that there was no likelihood of confusion.

50      With regard to those goods and services which are generically similar or similar to a low degree, there is no factor which offsets the ‘at least’ low degree of visual and phonetic similarity between the marks at issue, since the earlier national mark has only a low or average degree of distinctiveness with regard to those goods and services which it covers. Moreover, contrary to what the applicant submits, the Board of Appeal in no way found that there was ‘a high degree of similarity’ between those goods and services or that with regard to those goods and services covered by the earlier national mark that mark had a high degree of distinctiveness. Consequently, with regard to the goods and services at issue, the relevant public, which displays an average to high level of attention, appears to be in a position to distinguish between the marks at issue, without assuming that they are indicative of the same commercial origin.

51      Furthermore, the taking into consideration of the earlier international registration cannot result in a different outcome, since, as the Board of Appeal pointed out in the contested decision, that international registration covers a narrower range of goods in Class 9.

52      It follows from the foregoing that the first and third parts of the first plea must be upheld as regards solely the services which have been referred to in paragraph 48 above and that that plea must likewise be upheld to that extent.

 The second plea, alleging infringement of Article 8(4) of Regulation 2017/1001

53      Pursuant to Article 8(4) of Regulation 2017/1001, the proprietor of a non-registered trade mark may oppose the registration of an EU trade mark if that non-registered trade mark satisfies four cumulative conditions. The non-registered trade mark must be used in the course of trade; it must be of more than mere local significance; the right to that mark must have been acquired pursuant to the law of the Member State in which the mark was used, prior to the date of application for registration of the EU trade mark; lastly, that mark must confer on its proprietor the right to prohibit the use of a subsequent trade mark. While the first two conditions must be interpreted in the light of EU law, the last two are to be assessed in the light of the law governing the sign concerned (judgment of 1 September 2021, Sony Interactive Entertainment Europe v EUIPO – Wong (GT RACING), T‑463/20, not published, EU:T:2021:530, paragraph 37).

54      In the contested decision, the Board of Appeal pointed out, in essence, that the national law on which the applicant had relied in order to show that the fourth condition that has been referred to in paragraph 53 above had been satisfied referred to the likelihood of confusion as an essential criterion for evaluating the extent of the protection of commercial designations, that the applicant had not shown that that criterion differed from the concept of a likelihood of confusion provided for in Article 8(1) of Regulation 2017/1001 and that, in that context, the commercial designation Sport1 GmbH did not confer on the applicant, under national law, the right to prohibit the use of the mark applied for within the meaning of Article 8(4) of Regulation 2017/1001, since the differences between the signs ruled out a likelihood of confusion, even if the services were identical.

55      The applicant submits that it has the right, under national law, to prohibit the use of the mark applied for because there is a likelihood of confusion between that mark and its company name, since the concept of a likelihood of confusion within the meaning of the national law is not, for this purpose, interpreted differently than it is within the meaning of Article 8(1) of Regulation 2017/1001. According to the applicant, that likelihood of confusion exists in view of the identity and similarity of the services concerned, the high degree of distinctiveness of its company name and the existence of a high, or, at least, average to low, degree of similarity between the signs, as it stated in the observations which it submitted before the adjudicating bodies of EUIPO.

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

57      It must be stated that the applicant’s arguments are in no way substantiated and do not make it possible to understand either the scope of its claims or the evidence on which it is relying in order to submit that the services concerned are identical and similar, that its company name has a high degree of distinctiveness and that the signs are similar to a high or, at least, average to low degree.

58      Furthermore, in so far as the applicant refers to the observations which it submitted before the adjudicating bodies of EUIPO, it must be borne in mind that, pursuant to Article 21 of the Statute of the Court of Justice of the European Union and Article 177(1)(d) of the Rules of Procedure, an application must contain a summary of the pleas in law on which it is based. Although specific points in the text of the application can be supported and completed by references to specific passages in the documents annexed to it, a general reference to other documents cannot compensate for a failure to set out the essential elements of the legal argument, which must, under the provisions referred to above, appear in the application itself (see, to that effect, judgment of 30 June 2021, Skyliners v EUIPO – Sky (SKYLINERS), T‑15/20, not published, EU:T:2021:401, paragraph 85).

59      It is not for the Court to seek, in the documents which were submitted to the adjudicating bodies of EUIPO, the evidence which is capable of substantiating the applicant’s arguments and is capable, as the case may be, of making it possible to dispute the Board of Appeal’s assessments.

60      The applicant’s arguments are not therefore capable of calling into question the Board of Appeal’s assessment as regards the lack of any likelihood of confusion for the purposes of the national law.

61      It is apparent from the foregoing that the second plea must be rejected.

62      It follows that the contested decision must be partially annulled on the ground of infringement of Article 8(1)(b) of Regulation 2017/1001, in so far as the Board of Appeal found that there was no likelihood of confusion with regard to the services covered by the mark applied for which are referred to in paragraphs 42 to 44 and 52 to 61 of that decision.

 Costs

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

64      Since EUIPO has been largely unsuccessful, it must be ordered to pay the applicant’s costs, in accordance with the form of order sought by the applicant.

65      In accordance with Article 138(3) of the Rules of Procedure, the intervener must bear its own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      Partially annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 December 2021 (Case R 2329/2020-1), in so far as the Board of Appeal found that there was no likelihood of confusion with regard to the services covered by the mark applied for which are referred to in paragraphs 42 to 44 and 52 to 61 of that decision;

2.      Dismisses the action as to the remainder;

3.      Orders EUIPO to bear its own costs and to pay those incurred by Sport1 GmbH;

4.      Orders Société française du radiotéléphone – SFR to bear its own costs.

Delivered in open court in Luxembourg on 8 February 2023.

*      Language of the case: English.

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