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

JUDGMENT OF THE GENERAL COURT (Third Chamber)

13 November 2024 (*)

( EU trade mark - Opposition proceedings - Application for the EU figurative mark miababy - Earlier EU figurative mark ia BABY interapothek - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EU) 2017/1001 )

In Case T‑1169/23,

Interapothek, SA, established in Santomera (Spain), represented by M. González Aleixandre, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by T. Klee, acting as Agent,

defendant,

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

Q4 Media SRL, established in Poiana Câmpina (Romania), represented by L. Lucaci, lawyer,

THE GENERAL COURT (Third Chamber),

composed, at the time of the deliberations, of P. Škvařilová-Pelzl, acting as President, I. Nõmm (Rapporteur) and D. Kukovec, 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 under Article 263 TFEU, the applicant, Interapothek, SA, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 31 October 2023 (Case R 1529/2023-1) (‘the contested decision’).

 Background to the dispute

2        On 4 July 2021, the intervener, Q4 MEDIA SRL, filed with EUIPO an application for registration of an EU trade mark in respect of the following figurative sign:

3        The mark applied for covered, inter alia, goods and services in Classes 5, 35 and 44 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponds, for each of those classes, to the following description:

–        Class 5: ‘Pharmaceuticals; Medical preparations; Pharmaceutical preparations for veterinary use; Sanitary preparations for medical purposes; Dietetic foods adapted for infants; Dietetic foods adapted for medical purposes; Infant formula; Powdered milk foods for infants; Dietary and nutritional supplements; Nutritional supplements; Food supplements; Mineral nutritional supplements; Vitamin and mineral supplements; Colostrum supplements; Dietary supplements for infants; Adhesive plasters; Plasters, materials for dressings; Mosquito-repellent patches for babies; Vitamin supplement patches; Transdermal patches; Dental materials for stopping the teeth; Disinfectants; Disinfectant soap; Disinfectants for hygiene purposes; Fungicides; Babies’ diaper-pants; Dietetic substances for babies; Medicated baby oils; Babies’ swim diapers; Shaped napkins of cellulose for babies; Shaped napkins of paper for babies; Babies’ creams [medicated]; Swim diapers, reusable, for babies; Babies’ diapers of cellulose or paper; Disposable babies’ diaper-pants; Dietetic beverages for babies adapted for medical purposes; Diaper changing mats, disposable, for babies; Paper diapers; Swim diapers, disposable, for babies; Disposable liners for babies’ diapers; Disposable babies’ diapers of paper and cellulose; Disposable swim diapers for children and infants; Food supplements for sportsmen’;

–        Class 35: ‘Retail services for pharmaceutical, veterinary and sanitary preparations and medical supplies; Wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies; Retail services in relation to headgear; Wholesale services in relation to headgear; Wholesale services in relation to festive decorations; Retail services in relation to festive decorations; Business assistance, management and administrative services; Advertising, marketing and promotional services; Administration of the business affairs of retail stores; Advertising; Online advertisements; Advertising and marketing; Magazine advertising; Arrangement of advertising; Advertising by mail order; Bill-posting; Product marketing; Marketing assistance; Provision of information relating to marketing; Market campaigns; Marketing by telephone; Marketing research; Import and export services; Distribution of samples’;

–        Class 44: ‘Providing information relating to dietary and nutritional supplements; Human hygiene and beauty care; Human healthcare services; Agriculture, aquaculture, horticulture and forestry services; Providing information about dietary supplements and nutrition; Providing information relating to dietary and nutritional guidance; Nutrition consultancy; Lifestyle counseling and consultancy for medical purposes; Dietary and nutritional advice; Providing nutritional information about food; Provision of information relating to nutrition; Lactation consulting services; Nutrition counseling; Aromatherapy services; Homeopathic clinical services; Postnatal care services for women; Midwife services; Pregnancy massage services; Occupational therapy services; Music therapy for physical, psychological and cognitive purposes; Consultancy provided via the Internet in the field of body and beauty care.’

4        On 25 October 2021, the applicant 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 following earlier rights:

–        EU figurative mark No 14583488, reproduced below, covering goods and services in Classes 5, 30 and 32 and corresponding, for each of these classes, to the description in paragraph 5(a) of the contested decision:

–        EU figurative mark No 16258592, reproduced below, covering, inter alia, goods in Class 10 corresponding to the description in paragraph 5(b) of the contested decision:

–        EU figurative mark No 8824691, reproduced hereunder, covering, inter alia, services in Class 35 corresponding to the description in paragraph 5(c) of the contested decision:

6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).

7        On 31 May 2023, the Opposition Division rejected the opposition in its entirety.

8        On 19 July 2023, the applicant brought an appeal before EUIPO against the decision of the Opposition Division.

9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. It, like the Opposition Division, based its comparison of the signs at issue by taking account of the earlier mark No 14583488, which it considered to be the most similar to the mark applied for, and on the assumption that the goods and services at issue were identical. It found that the goods and services at issue were intended for a relevant public having a high degree of attention, that that earlier mark had weak inherent distinctive character on account of the use of the word ‘baby’, which was descriptive of the goods and services at issue, and that the signs at issue were similar phonetically but merely similar visually and conceptually to a low degree. It concluded that no likelihood of confusion could be deemed to exist, even in respect of identical goods and services.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision;

–         order EUIPO and, if appropriate, the intervener to pay the costs.

11      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs in the event that an oral hearing is convened.

12      The intervener contends, essentially, that the Court should:

–        dismiss the action and uphold the contested decision;

–        dismiss the request that it be ordered to pay the costs.

 Law

13      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 on the ground that the Board of Appeal erred in finding that there was no likelihood of confusion. In that context, it criticises the Board of Appeal inter alia for, (i) finding that the signs at issue were merely similar visually to a low degree, (ii) underestimating the extent of the distinctive character of the earlier mark No 14583488 and, (iii) erring in its assessment of the impact of the phonetic similarity of the signs and the degree of attention of the relevant public when making an overall assessment of the likelihood of confusion.

14      In that regard, it should be recalled that, under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to 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.

15      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 concerned, 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 32 and the case-law cited).

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

17      As a preliminary point, it should be noted, first, as regards the determination of the relevant public, that the Board of Appeal’s assessments in paragraphs 22 and 23 of the contested decision, claiming that the goods and services in Classes 5, 35 and 44 are aimed at a public having a high degree of attention, whether composed of medical professionals or the general public, are not contested by the applicant. Although the applicant criticises the conclusions which the Board of Appeal drew from the existence of a high degree of attention on the part of that public when carrying out the overall assessment of the likelihood of confusion, it does not call into question the merits of identifying a public having a high degree of attention.

18      In so far as, on the one hand, the Board of Appeal’s assessment is not erroneous and, on the other, the opposition was based on EU trade marks, the Board of Appeal was therefore correct in taking into account the perception of the general public and professionals in the European Union who have a high degree of attention.

19      Secondly, as regards the comparison of the goods and services at issue, the Board of Appeal held, in paragraph 19 of the contested decision, that the goods at issue were either similar or identical. There is no reason to call into question that assessment, which has not been disputed by the applicant.

 Comparison of the signs at issue

20      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).

21      Assessment of similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

22      In paragraphs 26 to 35 of the contested decision, the Board of Appeal compared the mark applied for with earlier EU trade mark No 14583488, referred to in the first indent of paragraph 5 above, on the ground that that mark was likely to have the greatest similarity amongst the earlier rights put forward in support of the opposition. That approach must be endorsed since the applicant does not, furthermore, maintain that any of the other marks which it put forward in support of its opposition has a greater degree of similarity to the mark applied for.

 The distinctive and dominant elements of the signs at issue

23      In paragraph 29 of the contested decision, the Board of Appeal held that, although the mark applied for was composed of a single word element, it would be broken down by the relevant public into two elements ‘mia’ and ‘baby’. It observed that, while the second element could be descriptive of some of the goods and services at issue, that is to say those intended for infants, that conclusion could not be extended to all of the goods and services at issue. It held that neither element of the mark applied for was more dominant than the other.

24      As regards the earlier EU trade mark No 14583488, the Board of Appeal noted, in paragraph 30 of the contested decision, that it was composed of three elements, namely ‘ia’, ‘baby’, written in block capitals, and ‘interapothek’, set out in bold letters on three lines, with the size of the letters in each element decreasing downwards. First, it found that the elements ‘ia’ and ‘interapothek’ had normal distinctive character in that they were meaningless, including, as regards the latter element for the German-speaking part of the public in the EU, on account of the unusual conjunction of the terms ‘inter’ and ‘apothek’ and the absence of the final vowel ‘e’ which appears in the German word ‘apotheke’. Secondly, it held that the word ‘baby’ was descriptive of all the goods covered by that earlier mark. Thirdly, it emphasised that the element ‘ia’ constituted, on account of its size and central position, the most dominant element of that mark.

25      Lastly, in paragraph 32 of the contested decision the Board of Appeal disputed the line of argument which the applicant put forward before it, claiming that the comparison between the signs at issue was made on the basis of the elements ‘iababy’ and ‘miababy’ since that line of argument failed to take account of the graphic elements of those signs, which were not negligible.

26      The applicant submits that the most distinctive and dominant elements of the signs at issue are respectively ‘ia baby’ in respect of the earlier mark No 14583488 and ‘miababy’ in respect of the mark applied for, with the only graphic component in those signs arising from subtly stylised typography.

27      EUIPO contests that line of argument.

28      With regard to the assessment of the dominant character of one or more given components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).

29      In order to determine the distinctiveness of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE), T‑602/19, not published, EU:T:2020:463, paragraph 27 and the case-law cited).

30      Furthermore, it should also be recalled that where some elements of a trade mark are descriptive of the goods in respect of which that mark is registered or the goods covered by the application for registration, those elements are recognised as having only a weak, or even very weak, distinctive character (see, to that effect, judgments of 12 September 2007, Koipe v OHIM – Aceites del Sur (La Española), T‑363/04, EU:T:2007:264, paragraph 92, and of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 52).

31      As regards the earlier mark No 14583488, it should be noted that, on the one hand, the Board of Appeal was correct in finding that the element ‘ia’ had distinctive character, whereas the element ‘baby’ was descriptive of the goods which it covered. On the other hand, as regards the element ‘interapothek’, it rightly observed that it had distinctive character for the non-German-speaking public in the EU. However, with regard to the German-speaking public in the EU, it should be noted that, despite the addition of the prefix ‘inter’ and the absence of the vowel ‘e’, that public will be able to view it as an allusion to the German word ‘apotheke’ and therefore it has only a weak distinctive character in that regard in relation to goods in Class 5, which may be marketed in pharmacies.

32      In addition, in view of the predominant role of the element ‘ia’ in earlier mark No 14583488, resulting from the significant difference in font size with the element ‘baby’ and its presentation at the top of that mark, the Board of Appeal rightly concluded that its overall impression was dominated by the element ‘ia’ rather than by the element ‘ia baby’, as the applicant maintains.

33      As regards the trade mark applied for, it should be noted that, although the term ‘baby’ is not descriptive of all the goods and services which it covers, it is nevertheless a term in very common usage, understood by a significant part of the public of the European Union who have at least a basic knowledge of English (see, to that effect, judgment of 16 September 2009, Hipp & Co v OHIM – Laboratorios Ordesa (Bebimil), T‑221/06, not published, EU:T:2009:330, paragraph 62 and the case-law cited). For that reason, it must be regarded as being only weakly distinctive. With regard to the element ‘mia’, as noted by the Board of Appeal, it can be understood by part of the relevant public as either a female forename or a possessive adjective, in particular for the Italian or Spanish-speaking public. For that part of the relevant public, it will follow that neither of the two elements which make up the mark applied for has more distinctive character than the other. With regard to the part of the relevant public which will not attribute any particular meaning to the element ‘mia’, it will have greater distinctive character than the element ‘baby’. In addition, the Board of Appeal was correct in finding that no element dominated its overall impression.

 The visual, phonetic and conceptual comparisons

34      In paragraphs 31 to 33 of the contested decision, the Board of Appeal held that the signs were merely visually similar to a low degree on account of differences resulting from, first, the absence of the letter ‘m’ in the earlier mark No 14583488, secondly, the absence of the element ‘interapothek’ in the mark applied for and, thirdly, the figurative elements of the signs at issue. In paragraph 34 of the contested decision, the Board of Appeal noted that there was an average degree of phonetic similarity between the signs at issue and, in paragraph 35 of that decision, a low degree of conceptual similarity.

35      In the first place, as regards the assessment of the degree of phonetic similarity of the signs, it should be noted that, although the applicant criticises the Board of Appeal for not having taken sufficient account of the degree of phonetic similarity of the signs in that respect when examining the likelihood of confusion, it does not call into question the merits of the finding of average similarity set out in paragraph 34 of the contested decision. In so far as that finding is not erroneous, it must be endorsed.

36      In the second place, as regards the assessment of the degree of visual similarity of the signs, the applicant submits that the Board of Appeal underestimated it. It submits, in essence, that the most important factor of similarity lies in the proximity between the word elements of the signs at issue and that the figurative elements play only a secondary role since the mark applied for can be perceived as a stylisation of earlier mark No 14583488.

37      EUIPO and the intervener submit that the Board of Appeal’s assessment of the visual comparison of the signs at issue is not erroneous.

38      It must be stated that, although the presence in the signs at issue of the letters ‘i’, ‘a’, ‘b’, ‘a’, ‘b’ and ‘y’ constitutes a factor of similarity, that factor is largely counterbalanced by several other factors.

39      That is so, first, as regards the different figurative elements of the signs at issue, as the Board of Appeal rightly pointed out in paragraph 33 of the contested decision. Earlier mark No 14583488 consists of three different-sized word elements placed one above the other on three lines, whereas the mark applied for consists of a single word element, so that they have a very different structure. Moreover, the earlier mark is in black and white, whereas the mark applied for uses a striking combination of seven different colours.

40      Secondly, for the reasons set out in paragraph 32 above, earlier mark No 14583488 is dominated by the element ‘ia’ which forms the initial part thereof. Accordingly, the difference resulting from the presence of the letter ‘m’ at the beginning of the mark applied for and the absence thereof in the earlier mark will play an important role when comparing the signs at issue visually.

41      It follows that the graphic presentations of the signs at issue cannot be regarded by the consumer merely as a different stylisation of the same trade mark, as the applicant maintains, but rather result in a visual distinction being drawn between the signs at issue. The Board of Appeal was therefore correct in concluding that there was a low degree of similarity between the signs at issue.

42      In the third place, as regards the conceptual comparison of the signs at issue, the applicant does not dispute the merits of the Board of Appeal’s conclusion that the similarity is week in that it results solely from the ‘baby’ element common to those signs. That conclusion is not erroneous and must be endorsed.

43      In addition, it should be noted that the signs at issue will be even weaker conceptually, or even different, for the part of the relevant public which will attribute meaning to the ‘mia’ element of the mark applied for. In that situation, whereas the expression ‘ia baby interapothek’ in earlier mark No 14583488 is meaningless as a whole, beyond the reference to a baby contained therein, the mark applied for could be understood as meaning either ‘Mia’s baby’, in the event that the first element of the mark applied for is perceived as a forename, or ‘my baby’, if it is understood as a reference to a possessive adjective.

44      However, in so far as, pursuant to the case-law cited in paragraph 16 above, it is sufficient that the likelihood of confusion exists in part of the European Union, the Board of Appeal was correct in comparing the signs at issue taking account of the part of the relevant public in respect of which a likelihood of confusion was most likely to exist.

 The likelihood of confusion

45      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).

46      However, the principle of interdependence is not intended to be applied mechanically. Thus, whilst it is true that, by virtue of the principle of interdependence, a lesser degree of similarity between the goods or services covered may be offset by a greater degree of similarity between the marks, conversely there is nothing to prevent a finding that, in view of the circumstances of a particular case, there is no likelihood of confusion, even where identical goods are involved and there is a weak degree of similarity between the marks at issue (see, to that effect, judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraphs 95 and 96 and the case-law cited).

47      The distinctive character of the earlier mark is another relevant factor which needs to be considered in the context of the global assessment of the likelihood of confusion. However, the distinctive character of the earlier mark is only one factor among others involved in the assessment of the likelihood of confusion. Consequently, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see, to that effect, judgment of 13 December 2007, Xentral v OHIM – Pages jaunes (PAGESJAUNES.COM), T‑134/06, EU:T:2007:387, paragraph 70 and the case-law cited).

48      In addition, according to settled case-law, in the context of the global assessment of the likelihood of confusion, the visual, phonetic or conceptual aspects of the signs at issue do not always have the same weight and it is then appropriate to examine the objective conditions under which the marks at issue may be present on the market. Thus, if the goods covered by a given mark are only sold on oral request, the phonetic aspects of the sign in question are bound to have greater significance for the relevant public than the visual aspects. On the contrary, the degree of phonetic similarity between two marks is of limited significance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives visually the mark designating those goods (see judgment of 29 January 2014, Goldsteig Käsereien Bayerwald v OHIM – Vieweg (goldstück), T‑47/13, not published, EU:T:2014:37, paragraph 41 and the case-law cited).

49      In paragraphs 36 to 38 of the contested decision, the Board of Appeal first found, in essence, that earlier mark No 14583488 had weak inherent distinctive character, secondly, recalled that the relevant public had a high level of attention and, thirdly, emphasised that the visual aspect was no less important than the phonetic aspect in the marketing of the goods in question. It concluded that the possibility of a likelihood of confusion could be ruled out, even in respect of goods and services which were identical, and that that conclusion also applied to the other earlier trade marks relied on by the applicant, in respect of which the similarity to the mark applied for was even weaker.

50      In the first place, the applicant disputes the merits of the Board of Appeal’s assessment that the inherent distinctive character of earlier mark No 14583488 was below average. It complains that the Board of Appeal attached too much importance to the descriptive character of the element ‘baby’ and, in essence, denied the earlier mark of distinctive character by ignoring the other elements of that mark.

51      As EUIPO rightly notes, the Board of Appeal did not find that earlier mark No 14583488 was devoid of inherent distinctive character on account of an element descriptive of the goods which it covered. It merely pointed out, without committing an error of assessment, that the presence in the earlier mark of the element ‘baby’, in so far as it was descriptive of the goods which it covered, weakened the extent of its distinctive character, conferred by the elements ‘ia’ and ‘interapothek’. It was therefore correct in concluding, in essence, that that trade mark had weak inherent distinctive character.

52      It should also be noted that that conclusion in respect of the German-speaking part of the relevant public and the goods in Class 5 may also be based on an understanding of the element ‘interapothek’ as a reference to a pharmacy.

53      In the second place, the applicant complains that the Board of Appeal erred in concluding that the phonetic similarity was not relevant in respect of the goods and services at issue. It submits that phonetic similarity is particularly important as regards medical goods in Class 5 and related goods, referring to paragraph 18 of the judgment of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN) (T‑331/09, EU:T:2010:520).

54      It must be stated that, in paragraph 37 of the contested decision, the Board of Appeal merely emphasised that the visual and phonetic similarities of the signs at issue were of equivalent importance.

55      That conclusion is not vitiated by any error of assessment.

56      First, with regard to the goods at issue in Class 5, the General Court has had occasion to point out (i) that, as regards pharmaceutical preparations available only on medical prescription, since the trade mark of those preparations is written on a prescription by the prescribing doctor, the consumer is necessarily confronted with a visual representation of that mark before ordering them, in some circumstances orally, from a pharmacist and, (ii) that the remainder of the goods at issue are generally available on a self-service basis, with the result that the consumer is likely to have, first of all, a visual representation of those goods and examine them on that basis, even if he or she also has recourse to the oral recommendations of a professional before making his or her purchase (judgment of 13 May 2015, Ferring v OHIM – Kora (Koragel), T‑169/14, not published, EU:T:2015:280, paragraphs 80 to 83).

57      Secondly, as regards the services at issue, it should be noted that the methods of marketing differ from those of goods, making the case-law cited in paragraph 48 above less relevant. As regards those goods, the Board of Appeal was correct in finding, in paragraph 37 of the contested decision, that they ‘[were] often contracted on basis of written descriptions (offers, catalogues, Internet searches)’ and therefore involved a visual examination.

58      In the third place, and consequently, in so far as the relevant public has a high level of attention and earlier mark No 14583488 has weak intrinsic distinctive character, the Board of Appeal was able to conclude, without committing an error of assessment, that registration of the mark applied for would not give rise to any likelihood of confusion on the part of that public, despite the average degree of phonetic similarity between the signs at issue.

59      First, the examination of the distinctive character of the earlier trade mark is particularly relevant in circumstances where there is only a low degree of similarity between the signs and where it is necessary to determine whether that low degree of similarity may be offset by a high degree of similarity between the goods (see, to that effect, judgment of 26 March 2020, Alcar Aktiebolag v EUIPO – Alcar Holding (alcar.se), T‑77/19, not published, EU:T:2020:126, paragraph 84 and the case-law cited).

60      Secondly, while it follows from case-law that the relevant public only rarely has a chance to compare the various marks directly and must therefore rely on ‘an imperfect recollection of them’, a high level of attention on the part of the relevant public can lead to the conclusion that it will not confuse the marks at issue despite the lack of any direct comparison between the various marks (see, to that effect, judgment of 22 March 2011, Ford Motor v OHIM – Alkar Automotive (CA), T‑486/07, not published, EU:T:2011:104, paragraph 95).

61      In the present case, in view of the level of attention of the relevant public, it must be found that the differences between the signs at issue are sufficient for that public not to perceive that the goods and services at issue, whatever their degree of similarity to the goods covered by earlier mark No 14583488, come from the same undertaking or, as the case may be, from economically linked undertakings.

62      The Board of Appeal was therefore correct in dismissing the ground of opposition relating to Article 8(1)(b) of Regulation 2017/1001 with regard to earlier mark No 14583488.

63      In the fourth place, the Board of Appeal was also correct in extending that conclusion to the other earlier marks put forward by the applicant. It is true that, in so far as those earlier marks do not include the element ‘baby’, it may be held that they do not have weak inherent distinctive character, unlike earlier mark No 14583488. However, as the Board of Appeal observed in paragraph 38 of the contested decision, their degree of similarity to the trade mark applied for is considerably lower. In that regard, it should be noted that the applicant does not claim that, in the event that a likelihood of confusion is not found on the basis of the earlier mark No 14583488, it could be found on the basis of the other rights which it put forward in support of its opposition.

64      In the light of the foregoing, the single plea in law must be rejected and, consequently, the action must be dismissed.

 Costs

65      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.

66      In the present case, although the applicant has been unsuccessful, the intervener has not applied for costs, while EUIPO has applied for costs only in the event that an oral hearing is convened. Consequently, in the absence of an oral hearing it must be held that each party must bear its own costs.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Interapothek, SA, the European Intellectual Property Office (EUIPO) and Q4 Media SRL each to bear their own costs.

Delivered in open court in Luxembourg on 13 November 2024.

*      Language of the case: English

© European Union
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