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

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

8 March 2023 (*)

(EU trade mark – Opposition proceedings – Application for EU figurative mark TERMORAD ALUMINIUM PANEL RADIATOR – Earlier Benelux word mark THERMRAD – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑172/22,

Salim Selahaddin Gönenç, residing in Konya (Türkiye), represented by V. Martín Santos, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by M. Eberl and J. Ivanauskas, acting as Agents,

defendant,

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

Solar A/S, established in Vejen (Denmark), represented by L. Elmgaard Sørensen, lawyer,

THE GENERAL COURT (Sixth Chamber),

composed of M.J. Costeira, President, U. Öberg and P. Zilgalvis (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 his action under Article 263 TFEU, the applicant, Mr Salim Selahaddin Gönenç, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 18 January 2022 (Case R 770/2021-2) (‘the contested decision’).

 Background to the dispute

2        On 25 February 2019, the applicant 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 goods in, inter alia, following the limitation made during the proceedings before EUIPO, Class 11 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 to the following description: ‘Lighting installations; lights and lamps for vehicles; lights for use in the interior and exterior spaces of vehicles; heating installations using solid, liquid or gas fuels or electricity, central heating boilers, boilers for heating installations, radiators [heating], heat exchangers, not parts of machines; stoves, kitchen stoves; solar thermal collectors [heating]; steam, gas and fog generators; steam boilers, other than parts of machines; acetylene, oxygen and nitrogen generators; installations for air-conditioning and ventilating; cooling installations and freezers; electric and gas-powered devices, installations and apparatus for cooking, drying and boiling, namely cookers, electric cooking pots, electric water heaters, barbecues, electric laundry driers; hair driers; hand drying apparatus, sanitary installations, taps [faucets], shower installations, toilets [water-closets], shower and bathing cubicles, bath tubs, toilet seats, sinks, wash-hand basins [parts of sanitary installations], washers for water taps, stuffing’s (tap valves), water softening apparatus; water purification apparatus; water purification installations; waste water purification installations; electric bed warmers and electric blankets, not for medical use; electric pillow warmers; electric or non-electric foot warmers; hot water bottles, electrically heated socks, filters for aquariums and aquarium filtration apparatus, industrial type installations for cooking, drying and cooling purposes; pasteurizers and sterilizers; radiator heaters, valves and caps; thermal and steam radiators for the heating of buildings; flat radiators for central heating installations; radiators [for industrial air-conditioning purposes]’.

4        On 14 August 2019, the intervener, Solar A/S, 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 on the earlier Benelux word mark THERMRAD, registered under number 563 397, covering goods in Class 11 and corresponding to the following description: ‘Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying, ventilation and water supply; radiators (heating); radiators for central heating’.

6        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) and Article 8(5) 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        Following the applicant’s request, EUIPO invited the intervener to adduce proof of genuine use of the earlier mark relied on in support of the opposition. The intervener complied with that request within the period prescribed.

8        On 4 March 2021, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 for part of the goods at issue, namely ‘heating installations using solid, liquid or gas fuels or electricity’, ‘central heating boilers, boilers for heating installations, radiators [heating], heat exchangers, not parts of machines’, ‘stoves’, ‘solar thermal collectors [heating]’, ‘steam, gas generators’, ‘steam boilers, other than parts of machines’, ‘installations for air-conditioning and ventilating’, ‘radiator heaters, valves and caps’, ‘thermal and steam radiators for the heating of buildings’, ‘flat radiators for central heating installations’, and ‘radiators [for industrial air-conditioning purposes]’ in Class 11.

9        On 29 April 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.

10      By the contested decision, the Board of Appeal dismissed the appeal. In particular, first, it upheld the Opposition Division’s decision that proof of genuine use of the earlier mark had been submitted in respect of only some of the goods at issue in Class 11, namely ‘radiators (heating)’ and ‘radiators for central heating’, and it approved the Opposition Division’s findings that the evidence was not sufficient to establish the reputation of the earlier mark for the purposes of Article 8(5) of Regulation 2017/1001, with the result that it was necessary to take into account its inherent distinctiveness, which was to be regarded as normal. Secondly, it found that the relevant public consisted of both the general public and the specialised public residing in Benelux whose level of attention varied from average to high, and decided to take into account, for the purpose of analysing the likelihood of confusion, the lowest level of attention, that is to say, average. Thirdly, it found that the goods covered by the mark applied for were identical or similar to varying degrees to the goods covered by the earlier mark. Fourthly, in the comparison of the marks at issue, the Board of Appeal found that the signs were visually similar to a high degree, phonetically similar to a very high degree and conceptually similar to at least a low degree. Consequently, it concluded that there was a likelihood of confusion between the marks at issue for the relevant public within the meaning of Article 8(1)(b) of Regulation 2017/1001 with regard to the goods in question.

 Forms of order sought

11      The applicant claims, in essence, that the Court should:

–        annul the contested decision;

–        order EUIPO and the intervener to pay the costs, including those incurred in the proceedings before EUIPO.

12      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

13      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay all the costs incurred by the intervener.

 Law

14      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.

15      The applicant raises, in essence, five complaints in respect of the contested decision, relating to (i) the comparison of the goods at issue, (ii) the comparison of the signs at issue, (iii) the distinctiveness of the earlier mark, (iv) the level of attention of the relevant public, and (v) the global assessment of the likelihood of confusion.

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

17      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, an 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.

18      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. 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).

19      For the purpose 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).

20      It is in the light of those principles that the merits of the present action are to be assessed.

21      It is appropriate to examine, first, the applicant’s fourth complaint, followed by the other complaints in the order in which they were submitted.

 The relevant public and its level of attention

22      In accordance with case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

23      In addition, it should be noted that only the public common to the goods at issue is to be taken into consideration in the context of the comparison of those goods. According to case-law, the relevant public is composed of consumers likely to use both the goods covered by the earlier trade mark and those covered by the trade mark applied for (see, to that effect, judgment of 19 July 2016, Alpha Calcit v EUIPO – Materis Paints Italia (CALCILITE), T‑742/14, EU:T:2016:418, paragraph 44 and the case-law cited).

24      First of all, the Board of Appeal found that, since the earlier mark was a trade mark registered in Benelux, the relevant territory for the purpose of assessing the likelihood of confusion was that of Belgium, Luxembourg and the Netherlands. Next, as regards the relevant public, it found that the goods at issue were aimed at both the general public and the specialised public, whose level of attention varied from average to high, given the specialised nature of those goods and the fact that they are expensive and are purchased infrequently. Lastly, as regards the relevant public’s level of attention, the Board of Appeal concluded that, in view of the fact that the assessment must be based on the part of the relevant public with the lowest level of attention, the level of attention to be taken into account in the present case was average.

25      The applicant argues that the goods at issue are most often installed by professionals and that, although some of them might also be installed by the general public, that would be an unusual scenario, which cannot be taken as the general rule. He therefore submits that the most probable relevant public consists of professional installers with a high level of attention, especially since those goods are very expensive and are installed only once or twice over a lifetime.

26      EUIPO disputes the applicant’s arguments.

27      The intervener has not put forward any arguments concerning the relevant public.

28      In the first place, given that the earlier mark is a trade mark registered and used for the goods at issue in Benelux, the Board of Appeal’s finding that, in the present case, the relevant public is that residing in Belgium, Luxembourg and the Netherlands – which, moreover, is not disputed by the applicant – is correct.

29      In the second place, the relevant public in the present case should be confirmed as consisting of, for the relevant goods in Class 11, the general public and the specialised public. It is clear that the goods covered by the marks at issue may be sold both to professionals and to consumers forming part of the general public. It is not disputed that goods such as central heating radiators, air conditioners and heating systems can be purchased in DIY shops by consumers belonging to the general public in order to carry out works themselves, as well as by professionals (see, to that effect, judgment of 20 October 2011, Poloplast v OHIM – Polypipe (P), T‑189/09, not published, EU:T:2011:611, paragraph 34).

30      In that regard, while it is true that, as the applicant has essentially argued, heating installations or installations for air conditioning and ventilating are generally aimed at installation engineers, that is to say, at professionals, the purchase of those goods by consumers belonging to the general public cannot be regarded as an unusual scenario. It is not inconceivable that a consumer belonging to the general public, before becoming the owner of a house, will be informed of the various installations for heating, air conditioning or ventilation in the house, or that he or she, when at the early stages of building or renovating a house, will be involved in choosing such an installation according to its various properties. In view of the significant investments that such an installation requires, as well as the significant economic and ecological consequences which the choice of a specific type of domestic heating, air conditioning or ventilating installation may subsequently have, it is highly likely that the owner of a house, who is reasonably well informed and reasonably observant and circumspect, will be actively involved in the choice of such an installation and will influence, at least to some extent, the choice of the professional responsible for carrying it out (see, to that effect, judgment of 28 April 2016, Zehnder Group International v EUIPO – Stiebel Eltron (comfotherm), T‑267/14, not published, EU:T:2016:252, paragraph 38).

31      As regards the relevant public’s level of attention, it should be borne in mind that, in accordance with settled case-law, the fact that a type of product is not purchased regularly by the average consumer suggests that the consumer’s level of attention will be fairly high (see, to that effect, judgment of 8 July 2015, Deutsche Rockwool Mineralwoll v OHIM – Ceramicas del Foix (Rock & Rock), T‑436/12, EU:T:2015:477, paragraph 21 and the case-law cited). More specifically, it is also apparent from case-law that, when purchasing durable goods that are acquired only occasionally, consumers display a higher level of attention than for the acquisition of everyday consumer goods (see, to that effect, judgment of 10 October 2007, Bang & Olufsen v OHIM (Shape of a loudspeaker), T‑460/05, EU:T:2007:304, paragraph 33).

32      In the present case, both the Board of Appeal and the applicant acknowledge that the goods at issue are purchased infrequently since, first, they are not everyday consumer goods and, secondly, they are expensive.

33      Furthermore, in the light of the considerations in paragraph 30 above concerning the investments required by the various types of installations concerned, the economic and ecological consequences of the choice of those devices and their specialised nature, it must be concluded, as the applicant submits, that the level of attention of the relevant public, which consists of both professional consumers and consumers belonging to the general public, must be regarded as high for the goods at issue in Class 11 (see, to that effect, judgment of 28 April 2016, comfotherm, T‑267/14, not published, EU:T:2016:252, paragraph 43).

34      It follows that the Board of Appeal made an error of assessment in finding that the relevant public’s level of attention in respect of the goods at issue was average. The impact of that error will be ascertained in the global assessment of the likelihood of confusion.

 Comparison of the goods at issue

35      The Board of Appeal found, first, that ‘stoves’ were similar to an average degree to ‘radiators (heating)’ covered by the earlier mark in so far as both were metallic devices radiating heat and were therefore in competition, and that they were aimed at the same public, since they could be marketed through the same distribution channels.

36      Secondly, the Board of Appeal found that ‘installations for air conditioning’ constituted a broad category which included or identically contained ‘radiators (heating)’ covered by the earlier mark. It concluded that those goods were therefore identical because those installations could be used for both heating and cooling purposes.

37      Thirdly, it found that ‘installations for ventilating’ were similar to a low degree to ‘radiators (heating)’ covered by the earlier mark, in so far as those installations could be used to increase thermal comfort and to condition the air in closed environments and might therefore serve the same purpose as ‘radiators (heating)’ covered by the earlier mark. Furthermore, it noted that those goods were aimed at the same public, might be purchased in the same outlets and might therefore also be in competition with each other.

38      Fourthly, as regards the other goods at issue, the Board of Appeal found that they were similar to ‘radiators (heating)’ covered by the earlier mark to varying degrees. In particular, first, it found that ‘heating installations using solid, liquid or gas fuels or electricity’, ‘radiators [heating], heat exchangers, not parts of machines’, ‘radiator heaters, valves and caps’, ‘thermal and steam radiators for the heating of buildings’, ‘flat radiators for central heating installations’ and ‘radiators [for industrial air-conditioning purposes]’ were included or identically contained within ‘radiators (heating)’ covered by the earlier mark and that those goods were, therefore, identical.

39      Secondly, it found that ‘valves and caps’ were also similar to an average degree to ‘radiators (heating)’ covered by the earlier mark due to the fact that they were complementary, since the former were indispensable or important for the use of the latter. In addition, it found that ‘central heating boilers, boilers for heating installations’ covered by the mark applied for were similar to an average degree to ‘radiators (heating)’ covered by the earlier mark, since they served the same purpose, namely to heat spaces, could be offered via the same distribution channels and could be manufactured by the same producers.

40      As regards ‘steam boilers, other than parts of machines, steam generators’ and ‘gas generators’ covered by the mark applied for, the Board of Appeal found that they were similar to a low degree to ‘radiators (heating)’ covered by the earlier mark on the ground that those goods could be considered complementary, had the same purpose and distribution channels and could also be manufactured by the same undertakings.

41      As regards ‘solar thermal collectors [heating]’ covered by the mark applied for, the Board of Appeal found that they were similar to an average degree to ‘radiators (heating)’ covered by the earlier mark because, first, they were complementary and served the same purpose, namely to heat premises, and, secondly, they had the same distribution channels and were aimed at the same public.

42      The applicant disputes, first, the Board of Appeal’s assessment as regards ‘installations for air-conditioning’ and argues that those goods are different from ‘radiators (heating)’ covered by the earlier mark since they differ in their use and meet different consumer needs. He maintains that, although air conditioning units could be used to heat a space, they are used, in the majority of cases, to cool rooms and those goods therefore have different purposes and are not, in essence, in competition.

43      Secondly, the applicant disputes the assessment of the similarity between ‘installations for ventilating’ covered by the mark applied for and ‘radiators (heating)’ covered by the earlier mark, contending that those goods are dissimilar. In that regard, he maintains that the purpose of ‘installations for ventilating’ is different in so far as the aim of those installations is to filter and clean contaminated air and to reintroduce clean, filtered air into a closed building. Those installations, he submits, are thus particularly suited for persons with poor health or chronic illnesses. By contrast, the purpose of the goods covered by the earlier mark is only to heat rooms. He adds that those goods also differ in that they are manufactured and sold by different undertakings.

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

45      In accordance with 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).

46      Furthermore, it should be borne in mind that, where the goods covered by the earlier mark include the goods covered by the trade mark application, those goods are considered to be identical (see 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).

47      As a preliminary point, it should be noted that, first, as regards the Board of Appeal’s assessment relating to the comparison of the goods referred to in paragraph 35 and paragraphs 38 to 41 above, the applicant has not put forward any specific argument or explanation of the reasons why the Board of Appeal’s findings are incorrect. Secondly, for the reasons set out in paragraphs 28 and 31 and paragraphs 35 to 40 of the contested decision, the Board of Appeal’s assessment must be upheld.

48      As regards ‘installations for air-conditioning’ covered by the mark applied for, it is not in dispute between the parties that that type of installation may be used for both cooling and heating the rooms of a building. Therefore, the applicant’s unsubstantiated argument that the cooling function is used more extensively than the heating function is irrelevant in that regard.

49      It should therefore be stated, as found by the Board of Appeal, that, in so far as ‘installations for air-conditioning’ might also serve a heating function, they form part of a general category of goods, which includes or identically contains ‘radiators (heating)’ covered by the earlier mark, in accordance with the case-law cited in paragraph 46 above.

50      By contrast, as regards ‘installations for ventilating’, it should be stated, as the applicant submits, that the purpose of those goods is different from that of ‘radiators (heating)’ covered by the earlier mark. As is apparent from the file, installations for ventilating filter and clean polluted air so as to then reintroduce filtered, clean air into a closed building, and make it possible to control the internal temperature, humidity and air movement, whereas the aim of radiators is to heat a space by increasing the temperature inside it. It follows that, while the objective of the former is to improve air quality, the latter aim to improve thermal comfort through an increase in temperature.

51      Nevertheless, such a finding cannot, in any event, undermine the Board of Appeal’s finding that those goods were similar to a low degree. In that regard, it should be noted that ‘installations for ventilating’ are aimed at the same public and sold in the same outlets as ‘radiators (heating)’ covered by the earlier mark. Furthermore, as EUIPO argued, those installations might be in competition with the goods covered by the earlier mark, and this is the case in so far as ventilation devices can also be incorporated in installations for air conditioning, which were found to be identical to radiators.

52      It follows that the Board of Appeal justifiably considered that ‘installations for air-conditioning’ were identical to ‘radiators (heating)’ covered by the earlier mark and that ‘installations for ventilating’ were similar to ‘radiators (heating)’ to a low degree.

53      Consequently, the complaint relating to the comparison of the goods must be rejected.

 Comparison of the signs at issue

54      In accordance with settled case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see, to that effect, judgment of 13 March 2018, Kiosked v EUIPO – VRT (K), T‑824/16, EU:T:2018:133, paragraph 56 and the case-law cited).

55      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).

56      Moreover, 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. Nevertheless, it is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (see, to that effect, judgment of 20 September 2017, Jordi Nogues v EUIPO – Grupo Osborne (BADTORO), T‑350/13, EU:T:2017:633, paragraph 24).

57      In the present case, the earlier mark is a word mark formed of the element ‘thermrad’, whereas the mark applied for is a figurative mark formed of two word elements. The latter contains, first, the word element ‘termorad’, which is represented in lower-case letters in a large, standard grey typeface and also has a small, red, geometric shape visually integrated at the top of the letter ‘t’. Secondly, it contains the expression ‘aluminium panel radiator’, situated below the word element ‘termorad’ and represented in very small capital letters, also in a standard grey typeface.

 The distinctive and dominant elements of the signs at issue

58      The Board of Appeal found, in paragraph 51 of the contested decision, that, given that the earlier mark had been registered in the form of a word mark, it is only that word that was protected, regardless of any graphic form used in its marketing.

59      In paragraphs 52 and 53 of the contested decision, it found that the word element ‘termorad’ was dominant in the mark applied for and that the red geometric shape contained therein was purely decorative. By contrast, it found that the expression ‘aluminium panel radiator’ had to be regarded as descriptive and almost negligible due to its very small size.

60      Furthermore, as regards the word elements ‘thermrad’ and ‘termorad’ at issue, the Board of Appeal found in paragraphs 54 to 59 of the contested decision that, given that the elements ‘therm’ and ‘termo’ were used as common prefixes in different languages to denote heat or temperature, the relevant public would easily break down both signs into the elements ‘therm’ or ‘termo’ and ‘rad’.

61      Consequently, it concluded that, in so far as the word elements ‘therm’ and ‘termo’ were common prefixes denoting heat or temperature in all the languages spoken in the relevant territory, they were descriptive in relation to the goods at issue and therefore lacked distinctiveness.

62      By contrast, it considered that, even though the element ‘rad’ might vaguely allude to the ‘radiators’ at issue, several mental steps were required to reach such a conclusion. Consequently, it found that that element was sufficiently imaginative and would not be interpreted by the relevant public as alluding to the goods at issue, since it was not well known that that term was a common abbreviation in the relevant sector used to refer to radiators. Furthermore, the Board of Appeal observed that the applicant had not put forward any relevant argument or evidence to demonstrate that the term ‘rad’ would be interpreted by the relevant public as alluding to the words ‘radiator’ or ‘radiation’, or that it was used in connection with them. Accordingly, the Board of Appeal concluded that that element was distinctive.

63      The applicant concedes that the word element ‘therm’ in the mark applied for is distinctive to a low degree. However, he disputes the Board of Appeal’s assessment of the word element ‘rad’, which, he submits, is clearly evocative of a ‘radiator’, in particular when it is affixed to that product.

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

65      In the present case, it should be stated at the outset that, since the earlier mark is a word mark, it does not have any dominant components from a visual standpoint, since the typeface is irrelevant in the comparison of the signs at issue. Therefore, it is only the word of which it is formed that is protected (judgment of 17 January 2017, QuaMa Quality Management v EUIPO – Microchip Technology (medialbo), T‑225/15, not published, EU:T:2017:10, paragraph 61).

66      Accordingly, the present examination focuses on analysing the dominant and distinctive elements of the mark applied for from a visual standpoint, in accordance with the case-law cited in paragraphs 55 and 56 above.

67      In that regard, it should be stated, as the Board of Appeal observed, that the word element ‘termorad’ is the dominant element within the mark applied for, which is justified on account of its dominant size and position relative to the expression ‘aluminium panel radiator’. That expression occupies a secondary position in the mark applied for due to, in particular, its very small size, which makes it almost negligible in the eyes of consumers. Similarly, the considerations relating to the purely decorative character of the red geometric shape and the descriptive character of the word elements ‘therm’ and ‘termo’, which refer to the idea of heat or temperature – considerations which, moreover, are not disputed by the applicant – must also be upheld.

68      As regards the word element ‘rad’, it is not apparent from the documents before the Court that that element constitutes an abbreviation which is commonly used to refer to the goods at issue in the commercial sector concerned. The term ‘rad’ does not therefore have a meaning that alludes to ‘radiator’ in any of the languages spoken in the relevant territory.

69      While, admittedly, it is not inconceivable that the relevant public might establish a certain connection between the term ‘rad’ and the radiators covered by the earlier mark when the mark is affixed to those goods, that would be only after having taken several mental steps. In order to establish such a connection between that term and the goods concerned, the relevant public will have to, first, break down the mark into two terms, then reflect on the concept evoked by the prefix ‘therm’ or ‘termo’, namely that of ‘temperature’, and consider that the term ‘rad’ refers to a radiator in order to deduce, lastly, that it is a word element evoking the concept of temperature in a radiator.

70      In any event, in the absence of any argument or evidence put forward by the applicant, there is nothing in the file before the Court to support the conclusion that the specialised public would be able to establish, without having to go through the mental steps outlined in paragraph 69 above, a sufficiently direct and specific connection between the goods at issue and the sign in question.

71      Accordingly, it must be concluded that the Board of Appeal was entitled to find that the term ‘rad’ was distinctive in relation to the goods at issue in the absence of a sufficiently direct and specific connection such as to enable the relevant public immediately to perceive, without further thought, a description of those goods or of one of their characteristics.

 Visual similarity

72      The Board of Appeal found that there was a high degree of visual similarity between the signs at issue on account of the fact that they shared the letter ‘t’ and the string of letters ‘erm’ and ‘rad’, and because the word element ‘rad’, which appears at the end of the signs at issue, created a significantly similar overall impression from a visual standpoint, despite the weak distinctive character of the elements ‘therm’ and ‘termo’. In that regard, it found, in essence, that the differences between the signs, namely the letters ‘h’ and ‘o’ in the respective marks, the geometric shape contained in the letter ‘t’ and the expression ‘aluminium panel radiator’ in the mark applied for were negligible in the overall impression.

73      The applicant submits that the differences between the marks are sufficient to avoid a likelihood of confusion, in particular because the mark applied for contains more words and due to the grey and red colours and the typeface used, which is very distinctive.

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

75      In the present case, the earlier word mark, consisting of the element ‘thermrad’, and the dominant word element of the mark applied for, ‘termorad’, are of the same length, both being formed of eight letters. They thus overlap in so far as they contain the sequence of the letter ‘t’ followed by the string of letters ‘erm’ and ‘rad’. However, those signs are differentiated by the letters ‘h’ and ‘o’ and, in the mark applied for, by the geometric shape contained in the letter ‘t’ and the expression ‘aluminium panel radiator’, as well as by the stylisation of the typeface used.

76      In the light of the analysis contained in paragraph 67 above, it is clear that the elements differentiating the signs at issue either occupy a secondary position owing to their purely decorative character, as regards the stylisation of the typeface and the red geometric component, or are negligible, so far as concerns the expression ‘aluminium radiator panel’, due to its reduced size and proportion. Consequently, it must be held that the similarities between the word elements ‘thermrad’ and ‘termorad’ in the signs at issue outweigh their differences, since, in the present case, those differences are not sufficient to attenuate the visual similarities.

77      Consequently, the Board of Appeal justifiably considered that the marks at issue were visually similar to a high degree.

 Phonetic similarity

78      The Board of Appeal found that the signs at issue were phonetically similar to a very high degree. It observed that the signs were almost identical, since the mark applied for practically reproduced the single word element of the earlier mark ‘thermrad’ in its dominant word element ‘termorad’. That is all the more so since the letter ‘h’ is silent in all the languages of the relevant territory and the letter ‘o’, present in the mark applied for, might not be heard when pronounced by the relevant public depending on the different accents. Furthermore, the Board of Appeal considered that it was likely that the expression ‘aluminium panel radiator’ would be ignored in the pronunciation of the mark applied for, given consumers’ tendency to shorten signs in order to reduce them to the elements that they find easiest to refer to and remember and the fact that consumers would probably not pronounce that element on account of it being descriptive and negligible.

79      The applicant argues that, for the purposes of the phonetic comparison of the signs, the Board of Appeal failed to take into account the expression ‘aluminium panel radiator’ in the mark applied for. He submits that, as a general rule, ‘all elements must be taken into account, regardless of their less relevant visual weight in the distinctive impact of the marks’. Consequently, he claims that the signs are very different phonetically, since they do not share the same syllables or intonation and are not of the same length.

80      EUIPO disputes the applicant’s arguments.

81      The intervener does not put forward any arguments in relation to phonetic similarity.

82      In the present case, the signs at issue coincide phonetically in that the word elements ‘therm’ and ‘term’ sound identical when pronounced, since, as is apparent from paragraph 66 of the contested decision, the letter ‘h’ is not pronounced in German, Dutch or French. The sound of the syllable ‘rad’ is also the same in the signs at issue. On the other hand, they differ in the sound of the letter ‘o’ and the expression ‘aluminium panel radiator’ in the mark applied for.

83      As regards that expression, it should be found, as the Board of Appeal considered, that it is highly probable that it will be ignored by the relevant public given its descriptive character and the secondary position it occupies owing to its smaller size and position at the bottom of the mark applied for (see, to that effect, judgments of 11 September 2014, El Corte Inglés v OHIM – Baumarkt Praktiker Deutschland (PRO OUTDOOR), T‑127/13, not published, EU:T:2014:767, paragraph 53; of 7 June 2018, MIP Metro v EUIPO – AFNOR (N & NF TRADING), T‑807/16, not published, EU:T:2018:337, paragraph 48; and of 14 June 2018, Lion’s Head Global Partners v EUIPO – Lion Capital (LION’S HEAD global partners), T‑310/17, not published, EU:T:2018:344, paragraph 39).

84      Consequently, the Board of Appeal was entitled to find that the marks at issue were phonetically similar to a high degree.

 Conceptual similarity

85      The Board of Appeal found that, despite the fact that the word elements ‘thermrad’ and ‘termorad’ did not convey a clear concept in relation to the goods at issue, both signs contained a word element which referred to the concept of ‘heat’ or ‘temperature’, namely ‘therm’ and ‘termo’. Nevertheless, since that similarity was based on an element the distinctiveness of which was weak, the Board of Appeal concluded that the signs at issue were conceptually similar to at least a low degree.

86      Those findings of the Board of Appeal, which, moreover, are not disputed by the applicant, are free from error and must therefore be upheld.

87      Consequently, the complaint relating to the comparison of the signs at issue must be rejected.

 The distinctiveness of the earlier mark

88      As a preliminary point, it should be noted that the Board of Appeal concluded that the evidence submitted by the intervener was insufficient to demonstrate the reputation of the earlier mark and, consequently, that the earlier mark did not enjoy enhanced distinctiveness.

89      It follows that the assessment of the distinctiveness of the earlier mark rests, in the present case, on its inherent distinctiveness.

90      In that regard, the Board of Appeal found that the word element ‘thermrad’, which forms the earlier mark, had no meaning for any of the goods at issue from the perspective of the relevant public. Consequently, it concluded that the distinctiveness of the earlier mark had to be regarded as normal, despite the presence in that mark of the weakly distinctive element ‘therm’.

91      The applicant submits that the distinctiveness of the earlier mark is extremely weak, since that mark is a combination of two descriptive terms, namely ‘therm’, which refers to the concept of temperature, and ‘rad’, which directly denotes radiators. He submits that, where an earlier right has a very weak distinctive character, the scope of its protection should be lessened. Competitors cannot be prevented from using generic and descriptive elements, such as those in the present case, on pain of conferring on the proprietor of the earlier trade mark a commercial advantage based on the ease with which that mark can be remembered by consumers precisely because of that generic and descriptive character.

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

93      In the present case, it should be stated that the word element ‘therm’, which refers to the idea of heat or temperature, may be allusive with regard to the goods at issue. However, as regards the word element ‘rad’, as stated in paragraphs 68 to 71 above, it is not apparent from the file that the relevant public will perceive it as referring to radiators. In any event, even if the relevant public were to establish a link with radiators, it would do so only after several stages of reflection.

94      Furthermore, for the purpose of assessing the overall likelihood of confusion, it is necessary to take account of the mark as a whole, since the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details, as is apparent from the case-law cited in paragraphs 55 and 56 above. Thus, the fact that a sign consists of one or more descriptive or weakly distinctive elements does not necessarily mean that the sign considered as a whole lacks distinctive character. In the present case, even if the word elements ‘therm’ and ‘rad’, analysed individually, may both be allusive in relation to the goods at issue when the earlier mark is broken down, the fact remains that the word element ‘thermrad’ has no meaning in any of the languages of the relevant territory. Consequently, that term is sufficiently fanciful and distinctive to have a normal degree of inherent distinctiveness.

95      In those circumstances, it must be held that the Board of Appeal was entitled to find that the inherent distinctiveness of the earlier mark was normal.

96      Consequently, the complaint relating to the distinctiveness of the earlier mark must be rejected.

 Overall likelihood of confusion

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

98      The Board of Appeal found, first of all, that the earlier mark had a normal degree of inherent distinctiveness, since it had no meaning for the relevant public in relation to the goods at issue. Next, it found that the level of attention of the relevant public to be taken into account for all the goods at issue for the purpose of assessing the likelihood of confusion was average.

99      Furthermore, the Board of Appeal found that the goods covered by the mark applied for were identical or similar, to varying degrees, to the goods covered by the earlier mark. It found that the signs had a high degree of visual similarity and a very high degree of phonetic similarity, and that they were conceptually similar, at least to a low degree. Lastly, the Board of Appeal found that the slight differences between the signs were insufficient to counterbalance the remarkable degree of similarity between them as regards the similar and identical goods. Consequently, it concluded that there was a likelihood of confusion, stating that, even for that part of the public with a high level of attention, consumers might believe that the goods at issue came from the same undertaking or from economically linked undertakings or that the mark applied for was a sub-brand of the earlier mark.

100    The applicant submits that both the term ‘termo’ and the term ‘rad’ are used by several undertakings, which is evidence of the weak distinctive character of those word elements, and that the scope of their protection should therefore be limited. He states that the goods in Class 11 covered by the mark applied for are dissimilar to ‘radiators’ covered by the earlier mark. Furthermore, he claims that the signs are visually different, in particular because a comparison is being made between a word mark and a composite figurative mark, which display significant differences. The signs are also phonetically dissimilar given that the expression ‘aluminium panel radiator’ should have been taken into account in their comparison. Lastly, he submits that since the level of attention of the relevant public is high, no likelihood of confusion can be established in the present case.

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

102    First of all, although the applicant insists, in the present case, that the distinctiveness of the earlier mark is weak, it has nevertheless been found, contrary to his assertion, that the distinctiveness of the earlier mark was normal.

103    Furthermore, it has been established that the goods covered by the mark applied for were identical or similar to the goods covered by the earlier mark. Similarly, as is apparent from paragraphs 77, 84 and 86 above, the signs at issue have a high degree of visual and phonetic similarity and a low degree of conceptual similarity.

104    In addition, the public to be taken into account for the purpose of examining the likelihood of confusion consists of both the general public and professionals, both displaying a high level of attention on account of the fact that the goods at issue are purchased infrequently and are expensive. In that regard, in so far as, in paragraph 82 of the contested decision, the Board of Appeal included in the assessment of the existence of a likelihood of confusion the part of the relevant public displaying a high level of attention, the Board of Appeal’s error, established in paragraph 34 above, is of no consequence.

105    In the light of all of the factors analysed above, it must be held that the conditions for finding that there is a likelihood of confusion are satisfied in the present case, on account of, in particular, the fact that the goods at issue are identical or similar and the overall similarity of the signs at issue, which are both formed of a fanciful and, therefore, distinctive word element in relation to those goods, and the normal distinctive character of the earlier mark, despite the high level of attention of the relevant public. Thus, in view of the interdependence of the various factors taken into account, it cannot be ruled out that the average consumer of the goods at issue residing in Benelux might believe that those goods come from the same undertaking or from economically linked undertakings.

106    Consequently, the complaint relating to the global assessment of the likelihood of confusion must be rejected.

107    In the light of all of the foregoing considerations, since the single plea in law relied on by the applicant in support of his claims must be rejected, the action must be dismissed in its entirety.

 Costs

108    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.

109    In the present case, EUIPO has contended that the applicant should be ordered to pay the costs. The intervener has contended that the applicant should be ordered to pay all the costs incurred by the intervener.

110    In that regard, in so far as the form of order sought by the intervener must be understood as contending that the applicant should be ordered to pay the costs incurred before the Opposition Division, the Board of Appeal and the Court, first, it should be borne in mind that, under Article 190(2) of the Rules of Procedure, only costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. It follows that the costs incurred for the purposes of the proceedings before the Opposition Division cannot be regarded as recoverable costs (see judgment of 25 April 2013, Bell & Ross v OHIM – KIN (Wristwatch case), T‑80/10, not published, EU:T:2013:214, paragraph 164 and the case-law cited). Consequently, the intervener’s claim that the applicant should be ordered to pay the costs incurred before the Opposition Division must be rejected.

111    Secondly, as regards the intervener’s claim that the applicant should be ordered to pay the costs of the proceedings before the Board of Appeal, it is sufficient to point out that those costs continue to be determined by the contested decision, since the present judgment dismisses the action brought against the contested decision (see, to that effect, judgment of 4 October 2017, Intesa Sanpaolo v EUIPO – Intesia Group Holding (INTESA), T‑143/16, not published, EU:T:2017:687, paragraph 74).

112    Therefore, since the applicant has been unsuccessful, he must be ordered to pay the costs relating to the present proceedings before the Court, in accordance with the forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Mr Salim Selahaddin Gönenç to bear his own costs and to pay those incurred in the present proceedings by the European Union Intellectual Property Office (EUIPO) and by Solar A/S.

Delivered in open court in Luxembourg on 8 March 2023.

*      Language of the case: English.

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