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

JUDGMENT OF THE GENERAL COURT (First Chamber)

7 June 2023 (*)

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

In Case T‑227/22,

Cylus Cyber Security Ltd, established in Tel-Aviv (Israel), represented by S. Bailey, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,

defendant,

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

Cylance, Inc., established in Irvine, California (United States), represented by B. Levy, lawyer,

THE GENERAL COURT (First Chamber),

composed of D. Spielmann, President, M. Brkan and I. Gâlea (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1        By its action based on Article 263 TFEU, the applicant, Cylus Cyber Security Ltd, seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 February 2022 (Case R 692/2020-4) (‘the contested decision’).

 Background to the dispute

2        On 13 February 2018, the applicant, Cylus Cyber Security Ltd, filed an application for registration of an EU trade mark with EUIPO in respect of the word sign CYLUS, pursuant to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

3        The mark applied for designated goods and services, after the restriction that occurred during the proceedings before EUIPO, in Classes 9, 42 and 45 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, for each of those classes, to the following description, as amended on 26 June 2018:

–        Class 9: ‘Data processing equipment; downloadable software for the cyber security of rail and metro companies’;

–        Class 42: ‘Software as a service for cyber security in rail and metro companies; computer services, including but not limited to: risk assessment, vulnerability assessment, penetration testing, system and code review, incident planning and response, technological consultation regarding effective cybersecurity requirements in tenders for rail and metro goods and services, including but not limited to: risk assessment, vulnerability assessment, penetration testing, system and code review, incident planning and response; Security services for cyber security for rail and metro companies, including but not limited to risk assessment, vulnerability assessment, penetration testing, system and code review, incident planning and response; scientific and technological services, as well as research and design services in these areas; design and development of software and computer equipment’;

–        Class 45: ‘Consulting services for tenders in the field of security services; security consultancy for protection of rails and metros; security inspection services for others; security monitoring services’.

4        On 9 October 2018, the intervener, Cylance Inc., filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.

5        The opposition was based on the earlier EU word mark CYLANCE, filed on 12 November 2012 and registered on 16 February 2014 under No 11338662 in respect of goods and services in Classes 9 and 42 corresponding, for each of those classes, to the following description:

–        Class 9: ‘Internet security software; software for preventing unauthorized access to computers and electronics systems; computer hardware for preventing unauthorized access to computers and electronics systems’;

–        Class 42: ‘Providing online Internet security software and software for preventing unauthorized access to computers and electronics systems; consulting services in the field of Internet security software; consulting services in the fields of the design, development, and implementation of computer hardware and software for preventing unauthorized access to computers and electronics systems’.

6        The grounds relied on in support of the opposition were those set out in Article 8(1)(a) and (b) of Regulation 2017/1001.

7        On 10 February 2020, the Opposition Division rejected the opposition on the ground that there was no likelihood of confusion on the part of the relevant public.

8        On 9 April 2020, 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 in part. It considered that there was a likelihood of confusion in the mind of a non-negligible part of the professional public in respect of the goods in Class 42. Consequently, it annulled the decision of the Opposition Division, dismissed the application for registration in respect of the goods and services in Classes 9 and 42 and dismissed the appeal for the remainder. The Board of Appeal considered that the relevant public was represented by the professional public likely to display a high level of attention. As regards the comparison of the signs, it found that the signs at issue were visually similar to an average degree, that they had either a low or high degree of phonetic similarity depending on the differences in pronunciation and that, conceptually, a comparison was not possible for the part of the public for which those signs had no meaning. Thus, it concluded that, overall, the signs at issue were similar to an average degree at least for the part of the public that would perceive them as meaningless.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs.

11      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

12      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.

13      The applicant submits, in essence, that the Board of Appeal made an error of assessment as regards the relevant public and its level of attention. According to the applicant, that error led to an incorrect assessment of the distinctive character of the prefix ‘cy’ in the signs at issue and vitiated the entire analysis of the likelihood of confusion.

14      In the alternative, the applicant submits that, even assuming that the definition of the relevant public and its perception of the signs at issue were correct, those signs display sufficient visual and phonetic differences to rule out any likelihood of confusion.

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

16      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 is not to 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.

17      The risk that the public might 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).

18      In the light of those considerations, it must be examined whether the Board of Appeal was right to find that there was a likelihood of confusion on the part of the relevant public within the meaning of Article 8(1)(b) of Regulation 2017/1001.

 The relevant public

19      The applicant submits that the Board of Appeal made an error of assessment in defining the relevant public and its level of attention.

20      In that regard, the applicant recalls that, after the restriction made during the proceedings before EUIPO, the goods and services in question solely fall within the area of cyber security and are limited to the sector of rail and metro undertakings. In its view, those undertakings are responsible for public transport on a daily basis; safety and security is of the utmost concern to them. According to the applicant, it follows that the purchasing decisions relating to those goods and services, because of their fundamental importance in relation to the safety and security of transport, will be taken solely by IT professionals and experts working in the IT departments of rail or metro undertakings. Therefore, it submits that the relevant public consists only of those experts, who display the highest possible level of attention.

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

22      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 is also necessary to take into consideration 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      The relevant public for the assessment of the likelihood of confusion is composed of users likely to use the goods or services covered by the earlier mark and those covered by the mark applied for. Thus, as a general rule, where the goods or services of one of the marks at issue are included in the broader designation referred to by the other mark, the relevant public is defined by reference to the more specific wording (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 38 and 39 and the case-law cited).

24      In that regard, account must be taken of the fact that a restricted and specialised public is likely to have specific knowledge of the goods or services covered by the marks at issue and/or to display, in that regard, a high level of attention, compared with that of the general public. Those are factors which may play a decisive role as regards whether there is a likelihood of confusion between those marks (see judgment of 24 May 2011, ancotel., T‑408/09, not published, EU:T:2011:241, paragraph 30 and the case-law cited).

25      In the present case, the Board of Appeal noted that, after the acceptance of the restriction request, all the goods and services applied for in Classes 9 and 42 were directed at the cyber security of rail and metro undertakings. Consequently, it found that those goods and services were targeted at professional customers who included rail and metro undertakings or their IT departments or providers. Therefore, it concluded that the relevant public for the purposes of assessing the likelihood of confusion was the professional public only, displaying a high level of attention.

26      In the first place, admittedly, the Board of Appeal limited its definition of the relevant public to the professional public consisting of rail or metro undertakings and their IT providers or departments. However, as EUIPO contends, it cannot be ruled out that persons other than IT professionals or IT experts may be led to take decisions when purchasing those goods and services, such as the financial directors or managing directors of those undertakings. Therefore, the applicant’s argument that that public is made up solely of IT professionals and experts working in the IT departments of rail or metro undertakings cannot succeed.

27      In the second place, it should be noted that the goods and services covered by the marks at issue are aimed at a public of professionals, but not only at IT experts, contrary to what the applicant claims. Consequently, that public’s level of attention as regards those products and services will necessarily be higher than that of the general public (see, by analogy, judgment of 20 September 2019, Sixsigma Networks Mexico v EUIPO – Marijn van Oosten Holding (UKIO), T‑367/18, not published, EU:T:2019:645, paragraph 25), without being as high as possible. Thus, the Board of Appeal’s finding that the level of attention of the relevant public is high must be upheld.

28      In the light of those considerations, it must be found that the Board of Appeal did not make an error of assessment as regards the definition of the relevant public and its level of attention.

 The comparison of the goods and services

29      The Board of Appeal concluded that the goods in Class 9 were identical. As regards the services in Class 42, it considered that they were at least similar to an average degree. With regard to the services in Class 45, it found that they were dissimilar to the goods and services in Class 9 and Class 42 covered by the earlier mark.

30      Those findings of the Board of Appeal have not been disputed by the parties.

 The comparison of the signs

31      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by those signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

32      The applicant disputes the Board of Appeal’s assessment that at least a non-negligible part of the professional public will not perceive the prefix ‘cy’ as referring to the cyber security-related nature of the goods and services in question. It submits that that Board of Appeal incorrectly based itself purely on the fact that there was no evidence in the file showing that all of the professional public would perceive the meaning of that prefix. It alleges that the Board of Appeal rejected the evidence submitted during the proceedings before EUIPO which referred to the names of 40 cyber security undertakings which include that prefix in their names and other evidence that the same prefix is the abbreviation of ‘cyber’.

33      In the applicant’s view, IT experts with a very high level of attention who purchase software and security services immediately make a connection between the prefix ‘cy’ and cyber security.

34      Consequently, the applicant submits that, if the Board of Appeal had concluded that only a negligible part of the relevant public would not perceive the connection between the prefix ‘cy’ and the abbreviation ‘cyber’, it would also have concluded that that prefix had very limited distinctiveness.

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

36      As a preliminary point, it should be borne in mind that the Board of Appeal correctly concluded that the relevant public consisted of rail or metro undertakings and their IT departments or providers. Thus, it could not be ruled out that persons other than IT professionals or experts might be led to take decisions when purchasing those goods and services.

37      The Board of Appeal found that the evidence produced by the applicant suggested that there was a certain tendency in the relevant market sector to use the prefix ‘cy’ to refer to the abbreviation ‘cyber’ or the word ‘cyberspace’. It considered that part of the professional public in the IT sector could be led, on account of the very specific goods and services, to perceive that prefix in the signs at issue as referring to cyber security. Consequently, for that part of the public, that prefix alludes to the characteristics of those goods and services and therefore has very weak distinctiveness.

38      Furthermore, the Board of Appeal considered that the English-speaking part of the relevant public may break down the earlier mark into significant elements and recognise the word ‘lance’ as referring to ‘a long weapon with a pointed head used by horsemen to unhorse or injure an opponent’ and that, if that word were perceived as such, it would not directly refer or allude to the characteristics of the goods and services at issue and therefore would have distinctiveness.

39      Lastly, the Board of Appeal considered that the file did not contain any indication that all professionals would perceive the prefix ‘cy’ as referring to the abbreviation ‘cyber’ and concluded that at least a non-negligible part of the professional public in the European Union would not perceive any of the abovementioned meanings in the signs at issue and would perceive the words ‘cylance’ and ‘cylus’ as meaningless distinctive words.

40      Therefore, the Board of Appeal decided to focus the comparison of signs on the part of the public for which the signs at issue would be distinctive and meaningless.

41      First of all, it should be borne in mind that no analysis intended to describe the relevant public’s approach to a sign can claim to be exhaustive in the sense that all members of that public will adopt an identical approach without exception. In those circumstances, it is for the applicant to demonstrate, with supporting evidence, that the analysis carried out by the Board of Appeal is incorrect in respect of a significant part of that public (see, to that effect, judgment of 19 December 2019, Japan Tobacco v EUIPO – I.J. Tobacco Industry (I.J. TOBACCO INDUSTRY), T‑743/18, not published, EU:T:2019:872, paragraph 35 and the case-law cited).

42      In that regard, it should be noted that, as is apparent from the findings of the Board of Appeal set out in paragraph 63 of the contested decision, the prefix ‘cy’ common to the signs at issue has distinctive character for the part of the public which will not perceive any connection between that prefix and the cyber security-related goods and services.

43      Next, as regards the applicant’s argument that the Board of Appeal based its conclusion purely on the fact that there was no evidence that all professionals, without exception, would perceive the prefix ‘cy’ as referring to the abbreviation ‘cyber’, it should be pointed out that the Board of Appeal acknowledged, in paragraph 60 of the contested decision, that the evidence adduced by the applicant suggested that there was a tendency in the market to use the combination of letters ‘cy’ for cyber security undertakings. Therefore, it must be held that the Board of Appeal took account of that evidence when it concluded that, for the part of the relevant public which understands the meaning of that prefix as referring to that abbreviation, that prefix will have very limited distinctiveness.

44      Nevertheless, that assessment cannot rule out the fact that a non-negligible part of the relevant public will not perceive the prefix ‘cy’ as referring to the abbreviation ‘cyber’. Therefore, for that part of that public, the signs at issue will be meaningless and distinctive. It must be held, as observed by EUIPO, that the evidence adduced by the applicant is not such as to establish that professionals of rail and metro undertakings, or at least a large majority of them, would perceive that prefix as referring to that abbreviation.

45      Therefore, the applicant’s argument that only a negligible part of the relevant public will not perceive any connection between the prefix ‘cy’ and the abbreviation ‘cyber’ cannot be accepted.

46      Accordingly, the Board of Appeal did not make an error of assessment in deciding to base its assessment on the non-negligible part of the relevant public which will not perceive the prefix ‘cy’ as referring to the abbreviation ‘cyber’.

47      That finding cannot be invalidated by the applicant’s argument that the prefix ‘cy’ has, in all circumstances, a weak distinctive character because of its presence in various company names or trade marks. As the Board of Appeal correctly noted, the mere fact that a number of marks containing that prefix are registered with EUIPO in respect of cyber security-related goods does not prove that they are used on the market (see, by analogy, judgment of 2 December 2014, Boehringer Ingelheim Pharma v OHIM – Nepentes Pharma (Momarid), T‑75/13, not published, EU:T:2014:1017, paragraph 85).

48      Accordingly, the Board of Appeal correctly based its assessment on the non-negligible part of the public that will perceive the signs at issue as distinctive and meaningless.

 The visual similarity

49      The applicant submits, in essence, that the Board of Appeal should have concluded that the degree of visual similarity between the signs at issue was weak. It is also of the view that the weak distinctive character of the prefix ‘cy’, found by the Board of Appeal, should have led the Board of Appeal to give less importance to that prefix in the visual comparison of the signs and, therefore, to conclude that there was, at most, a low degree of similarity between those signs.

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

51      In this case, the Board of Appeal concluded that there was an average degree of visual similarity between the signs at issue, finding that those signs coincided in the prefix ‘cyl’, differed in length and that the sequence of letters ‘ance’ of the earlier mark created a distinct visual impression from the sequence of letters ‘us’ of the mark applied for.

52      It is common ground that the earlier mark consists of seven letters and that the mark applied for consists of five letters. It must be pointed out that the first three letters which make up the signs at issue, namely the letters ‘c’, ‘y’ and ‘l’, which are, moreover, placed in the same order, are identical. Those signs thus differ in their suffixes, namely, ‘ance’ as regards the earlier mark and ‘us’ as regards the mark applied for.

53      It is also apparent from the case-law relating to word marks that what matters in the assessment of the visual similarity of such marks is the presence, in each of them, of several letters in the same order (see, to that effect, judgment of 25 March 2009, Kaul v OHIM – Bayer (ARCOL), T‑402/07, EU:T:2009:85, paragraph 83).

54      In the light of the foregoing, it must be held that, in this case, the presence in the signs at issue of the same letters ‘c’, ‘y’ and ‘l’ in the same order creates visual similarity.

55      Accordingly, in the light of all of those factors, it must be pointed out that the Board of Appeal was right to conclude that the signs at issue had an average degree of visual similarity.

 The phonetic similarity

56      The applicant submits that, if the Board of Appeal had correctly assessed the relevant public’s perception of the signs at issue, it would have concluded that the degree of phonetic similarity was, at most, low.

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

58      The Board of Appeal considered that the pronunciation of the signs at issue coincided in the sound of their first letters, irrespective of the different pronunciation rules, and differed in the sound of the following letters.

59      Furthermore, the Board of Appeal noted, first, that the difference in length of the signs at issue resulted in different rhythms and intonations in the languages in which all the letters will be pronounced, since, for part of the relevant public, the earlier mark would be pronounced in three syllables, whereas the mark applied for would be pronounced in only two syllables. It concluded that, for that part of the relevant public, the signs at issue were phonetically similar to a low degree.

60      Secondly, the Board of Appeal found that, for the part of the relevant public which pronounces the earlier mark as two syllables, such as the English-speaking public or the French-speaking public, the signs at issue shared the same number of syllables, the same rhythm and the same length. Therefore, for that part of the relevant public, it found that those signs were phonetically similar to a high degree.

61      In this case, it should be borne in mind that, as the Board of Appeal noted, the signs at issue are likely to be pronounced differently depending on the languages. The applicant does not dispute that assessment.

62      It must be pointed out that the first three letters of the signs at issue are identical, which is capable of creating a similarity. Furthermore, for the English-speaking or French-speaking part of the relevant public, the last syllables making up those signs, namely the syllables ‘lance’ and ‘lus’, have at least a certain similarity due to the proximity of the sounds resulting from the pronunciation of the letters ‘l’ ‘c’ and ‘s’.

63      Therefore, despite the slight phonetic difference between the signs at issue, due to the pronunciation of the last syllables, which are, however, similar in their sounds, there is a certain phonetic similarity between those signs, which results from the identical pronunciation of their first syllable.

64      It follows from the foregoing considerations that the Board of Appeal correctly found that the signs at issue were phonetically similar to a low degree for the part of the relevant public which will pronounce all the letters of the earlier mark and that they were phonetically similar to a high degree for the part of that public which will pronounce those signs as two syllables.

 The conceptual similarity

65      The Board of Appeal found, without it being challenged by the applicant, that a conceptual comparison was not possible for the part of the relevant public for which the signs at issue had no meaning and that that aspect did not affect the assessment of the similarity of the signs.

 The likelihood of confusion

66      The applicant alleges that the Board of Appeal based its global assessment essentially on the fact that the prefix ‘cy’ is present in the signs at issue and failed to take into account the connection made by the relevant public between that prefix and the abbreviation ‘cyber’.

67      In the alternative, the applicant submits that, even if the Board of Appeal’s assessment concerning the prefix ‘cy’ were correct, the differences between the signs at issue were sufficient to rule out any likelihood of confusion.

68      Furthermore, the applicant submitted to the Court a decision of an Israeli authority competent in the field of trade mark law which confirms a decision that there is no likelihood of confusion between the marks at issue.

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

70      Taking into account the average degree of visual similarity, the either low or high degree of phonetic similarity, depending on the part of the relevant public considered, and the impracticability of a conceptual comparison, the Board of Appeal found that the differences between the signs at issue were not sufficient to outweigh the similarities and to rule out the likelihood of confusion for the goods found to be identical and those which were at least similar to an average degree on the part of the public for which those signs had no meaning and were distinctive.

71      It must be borne in mind that 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 greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

72      Account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26). Even consumers with a high level of attention must place their trust in the imperfect picture of the marks which they have kept in their minds (see, to that effect, judgment of 21 November 2013, Equinix (Germany) v OHIM – Acotel (ancotel.), T‑443/12, not published, EU:T:2013:605, paragraph 54).

73      It should be borne in mind that a finding that there is a likelihood of confusion for a not insignificant part of the relevant public is sufficient to uphold an opposition brought against an application for registration of a mark (see judgment of 24 June 2014, Hut.com v OHIM – Intersport France (THE HUT), T‑330/12, not published, EU:T:2014:569, paragraph 58 and the case-law cited; see also, to that effect, judgment of 10 November 2011, Esprit International v OHIM – Marc O’Polo International (Representation of a letter on a pocket), T‑22/10, not published, EU:T:2011:651, paragraph 119).

74      In this case, the Board of Appeal recalled, as regards the distinctive character of the earlier mark, that it had to be regarded as normal, despite the fact that part of the public may perceive the prefix ‘cy’ as a non-distinctive reference to the nature of the goods and services in question.

75      It must be borne in mind that, as has been found in paragraph 46 above, the Board of Appeal correctly decided to focus its analysis on the part of the relevant public which will not attribute any meaning to the signs at issue and that the word ‘cylance’, which constitutes the earlier mark, has an average degree of distinctiveness, since it has no meaning with regard to the goods and services at issue.

76      It follows from paragraph 29 above that, as regards the comparison of the goods and services at issue, the goods in Class 9 are identical and the services in Class 42 are at least similar to an average degree. Furthermore, as is apparent from paragraphs 55, 63 and 65 above, the signs at issue have an average degree of visual similarity, they are highly similar phonetically for the part of the relevant public which pronounces those signs in two syllables and a conceptual comparison is not possible. Therefore, it must be concluded that, in the context of a global assessment of the likelihood of confusion, the Board of Appeal correctly found, as regards the goods in Class 9 and the services in Class 42, that such a likelihood of confusion existed on the part of a non-negligible part of that public.

77      As regards, lastly, the decision of the Israeli authority produced by the applicant, it should be noted that the decisions of national courts or other intellectual property offices, in particular those of third countries, do not bind the EUIPO and cannot call into question the legality of its decisions (see, to that effect, judgment of 25 October 2007, Develey v OHIM, C‑238/06 P, EU:C:2007:635, paragraphs 65 and 66).

78      Consequently, the decision of the Israeli authority produced by the applicant cannot call into question the legality of the contested decision.

79      In the light of all the foregoing considerations, since the single plea in law relied on by the applicant in support of the form of order sought by it cannot be upheld, the action must be dismissed in its entirety.

 Costs

80      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.

81      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 (First Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Cylus Cyber Security Ltd to pay the costs.

Delivered in open court in Luxembourg on 7 June 2023.

*      Language of the case: English.

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