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

JUDGMENT OF THE GENERAL COURT (Second Chamber)

20 November 2024 (*)

( EU trade mark - Invalidity proceedings - EU word mark PREDATOR - Earlier EU word mark PREDATOR - Relative ground for invalidity - Likelihood of confusion - Complementarity and similarity of the goods - Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001) )

In Case T‑33/23,

Domator24 sp. z o.o., established in Zielona Góra (Poland), represented by T. Gawliczek, lawyer,

applicant,

v

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

defendant,

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

Acer, Inc., established in Taipei (Taiwan), represented by R. Schiffer, lawyer,

THE GENERAL COURT (Second Chamber),

composed of J. Schwarcz (Rapporteur), acting as President, V. Tomljenović and W. Valasidis, Judges,

Registrar: G. Mitrev, Administrator,

having regard to the written part of the procedure,

further to the hearing on 17 January 2024,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Domator24 sp. z o.o., seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 November 2022 (Case R 381/2022-5) (‘the contested decision’).

 Background to the dispute and events subsequent to the bringing of the action

2        On 17 January 2020, the intervener, Acer, Inc., filed with EUIPO an application for a declaration of invalidity in relation to the EU trade mark which had been registered following an application filed on 23 May 2017 by the applicant for the word sign PREDATOR.

3        The goods covered by the contested mark in respect of which a declaration of invalidity was sought were in Class 20 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 corresponded to the following description: ‘Armchairs; office armchairs; seats; desks; cushions; furniture’.

4        The application for a declaration of invalidity was based, inter alia, on the earlier EU word mark PREDATOR, which designated goods in Class 9 corresponding to the following description: ‘Computers, computer hardware, notebooks, tablet, keyboard, mouse, monitors, headsets, speaker, cover and bag of the computer and tablet, mouse mat’.

5        The grounds relied on in support of the application for a declaration of invalidity were those set out in the combined provisions of Article 8(1)(b), Article 8(5) and Article 53(1)(a) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 (OJ 2015 L 341, p. 21).

6        On 18 January 2022, the Cancellation Division rejected the application for a declaration of invalidity in its entirety.

7        On 9 March 2022, the intervener filed an appeal with EUIPO against the decision of the Cancellation Division.

8        By the contested decision, the Board of Appeal upheld the appeal in part. In the first place, it found that the intervener had not contested the decision of the Cancellation Division in so far as concerns Article 8(5) of Regulation No 207/2009. In the second place, in analysing the likelihood of confusion within the meaning of Article 8(1)(b) of that regulation, the Board of Appeal first of all found that the relevant public was the general public, whose level of attention ranged from average to high, both for the goods in Class 9 covered by the earlier mark and for those in Class 20 covered by the contested mark. Next, it compared those goods and found that, because they were complementary and could share the same distribution channels and target the same consumers, they were similar to a low degree, with the exception of the ‘cushions’ covered by the contested mark, which differed from the goods covered by the earlier mark. Continuing its analysis, the Board of Appeal found that the signs at issue were identical and that the inherent distinctiveness of the earlier mark was at least average. Lastly, it concluded that there was a likelihood of confusion in relation to all the goods covered by the contested mark, with the exception of ‘cushions’, and, to that extent, it declared the trade mark invalid.

9        Subsequent to the contested decision, in its decision of 26 September 2023 in Case 56 052 C, at the request of the intervener, the Cancellation Division of EUIPO declared that the applicant’s rights in the contested mark were revoked with effect from 6 September 2022 in relation to all goods covered by that mark. No appeal was brought against that decision and it therefore became final.

 Forms of order sought

10      The applicant claims that the Court should:

–        annul the contested decision in so far as it upheld the application for a declaration of invalidity;

–        order EUIPO to pay the costs, including those incurred before the Board of Appeal;

–        order the intervener to bear its own 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 that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      Given that the date on which the application for registration in question was filed, namely 23 May 2017, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009, as amended by Regulation 2015/2424 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited).

14      Furthermore, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the case is governed by the procedural provisions 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), as well as those of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 (OJ 2018 L 104, p. 1), and of Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 (OJ 2018 L 104, p. 37).

15      The applicant raises, in essence, two pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation No 207/2009 and the second alleging infringement of the principle of the unfettered evaluation of the evidence, of Article 95(1) of Regulation 2017/1001, and of Article 55(1) and (2) and of Article 22(2) of Delegated Regulation 2018/625.

16      It is appropriate, first of all, to deal with the second plea, which relates to the assessment of the evidence which the intervener adduced before EUIPO for the purpose of establishing that the goods at issue were similar, before, as appropriate, examining the first plea, relating to the likelihood of confusion, for which the question of whether the goods are similar must first have been decided.

 The second plea: infringement of the principle of the unfettered evaluation of the evidence, of Article 95(1) of Regulation 2017/1001, and of Article 55(1) and (2) and of Article 22(2) of Delegated Regulation 2018/625

17      The applicant maintains that the Board of Appeal erred in its assessment of the evidence adduced by the intervener, from which it wrongly inferred that shops specialising in IT goods could sell chairs adapted to the needs of individuals who play games on computers for a long time. According to the applicant, the illustrations adduced by the intervener before the Board of Appeal were illegible and contained information in a language other than the language of the proceedings. Moreover, some of those illustrations failed to indicate either their source or the date on which they were created, or they were irrelevant. In any event, those illustrations did not comply with the applicable law on evidence and ought to have been rejected by the Board of Appeal.

18      EUIPO disputes the applicant’s arguments.

19      Article 95(1) of Regulation 2017/1001 provides that, in invalidity proceedings, EUIPO is to limit its examination to the grounds and arguments submitted by the parties.

20      Article 55(1) of Delegated Regulation 2018/625 provides that EUIPO ‘shall examine any evidence given or obtained in any proceedings before it to the extent necessary to take a decision in the proceedings in question’. Article 55(2) of that delegated regulation sets out in detail how the items of evidence are to be presented in the file submitted to EUIPO.

21      Article 22(2) of Delegated Regulation 2018/625 requires that the written statement setting out the grounds of appeal before the Board of Appeal be filed in the language of the proceedings, as determined in accordance with that regulation, and provides that, where that statement is filed in another official language of the European Union, the appellant is to provide a translation of that statement within one month of the date of the submission of the original statement.

22      Article 24 of Implementing Regulation 2018/626 provides that, unless otherwise provided for in that regulation or in Delegated Regulation 2018/625, supporting documents to be used in the written procedure before EUIPO may be filed in any official language of the European Union. It also provides that, where the language of those documents is not the language of the proceedings, EUIPO may, of its own motion or upon reasoned request by the other party, require that a translation be supplied, within a period specified by it, in that language.

23      In addition, it should be borne in mind that, according to settled case-law, the principle which prevails in EU law is that of the unfettered evaluation of the evidence, from which it follows that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility. Thus, in order to assess the probative value of a document, it is necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on the face of it, the document appears sound and reliable (see judgment of 24 October 2018, Bayer v EUIPO – Uni-Pharma (SALOSPIR), T‑261/17, not published, EU:T:2018:710, paragraph 60 and the case-law cited).

24      Furthermore, it is, in principle, necessary for the applicant to be able to understand the content of the evidence submitted by the intervener. However, in order to be able actually to exercise its rights of defence with regard to that evidence, it is not necessary for the applicant to be able to understand fully every detail. It is sufficient, in that regard, for a person who has knowledge of the language of the proceedings before EUIPO to be able to identify and understand the relevant information in the documents (see, to that effect, judgment of 22 September 2021, Collibra v EUIPO – Dietrich (COLLIBRA and collibra), T‑128/20 and T‑129/20, EU:T:2021:603, paragraph 142 (not published)).

25      In the present case, the Board of Appeal relied on evidence adduced by the intervener, namely extracts from websites, in order to find that gaming chairs, specifically adapted for the needs of people sitting at computers for a long time, could be distributed through the same channels as those normally used for computer hardware.

26      The evidence in question appears in the statement filed by the intervener before the Board of Appeal, which, it is not disputed, was filed in the language of the proceedings, namely English. The fact that that evidence was presented in the form of screenshots showing the corresponding internet addresses and that it contains information written in German, and therefore in a language other than the language of the proceedings, being English, was not such, in the circumstances of the present case, as to prevent that board or the applicant from becoming aware of it, identifying the sources of that information and assessing its relevance to the distribution channels of the goods at issue.

27      In those circumstances, the Board of Appeal could, but was not obliged to, request a translation of information which was not in the language of the proceedings, in accordance with Article 24 of Implementing Regulation 2018/626 and the case-law cited in paragraph 24 above. Moreover, it is not apparent from the case file that the applicant requested, before EUIPO, a translation of that information.

28      The second plea must therefore be rejected as being unfounded.

 The first plea: infringement of Article 8(1)(b) of Regulation No 207/2009

29      In essence, the present plea is divided into two parts. The first alleges that the assessment of the complementarity and similarity of the goods at issue was erroneous. The second is based on the allegation that the consequences which were inferred from the conceptual identity of the signs at issue as regards the likelihood of confusion were erroneous.

 Preliminary observations regarding the relevant public

30      Both for the goods in Class 9 covered by the earlier mark and for those in Class 20 covered by the contested mark, the Board of Appeal found that the relevant public was the general public, whose level of attention varied from average to high, in particular according to the price of the goods. In addition, according to the Board of Appeal, the relevant territory was the territory of the European Union.

31      There is no reason to call into question those findings which, moreover, are not disputed by the applicant.

 The first part: the assessment of the complementarity and similarity of the goods at issue was erroneous

32      The applicant complains that the Board of Appeal found that the goods at issue had a low degree of similarity and concluded, on that basis, that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009. According to the applicant, contrary to the finding of the Board of Appeal, the goods in Class 20 covered by the contested mark and described as ‘armchairs; office armchairs; seats; desks; furniture’ are not complementary to the goods in Class 9 covered by the earlier mark, such as ‘computers’. In addition, there is no other objective element which would justify classifying them as similar goods.

33      In particular, the applicant submits that the Board of Appeal erred in concluding that the goods at issue were complementary on the basis of an unproven premiss that ‘gaming chairs’ were specifically adapted for the needs of a person sitting at a computer for a very long time. It points out that such chairs are not expressly referred to in the list of goods covered by the contested mark and that the intervener has not proved that those chairs had particular technical characteristics associated with being used with a computer. Furthermore, according to the applicant, the intervener acknowledged before the Board of Appeal that the link between the goods at issue was merely aesthetic. In any event, the intervener had failed to establish any functional link between those goods.

34      In addition, the applicant maintains that the manufacturers of the goods covered by the contested mark, such as chairs, armchairs and tables, are not the same as the manufacturers of the goods covered by the earlier trade mark, for example computers. The intervener had failed to establish that the manufacturers of those two types of goods could generally be the same. The Board of Appeal also applied too broadly the similarity factor relating to the distribution channels for the goods at issue, as well as the factor concerning the consumers targeted through those channels. It overlooked the fact that, as a general rule, online shops offer a variety of products belonging to entirely different market segments, without consumers attributing a common commercial origin to them. It also made a peremptory assertion that the end consumers of the goods at issue were the same, whereas the purchase of an armchair or a sofa was not usually accompanied by the purchase of a computer.

35      Lastly, in the view of the applicant, the Board of Appeal disregarded established EUIPO decision-making practice, according to which furniture, chairs and desks are not complementary to computers or software and according to which such complementarity could be observed only for furniture expressly described as being for and designed for computers.

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

37      Under the combined provisions of Article 53(1)(a) and Article 8(1)(b) of Regulation No 207/2009, an EU trade mark is to be declared invalid if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods 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.

38      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods 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).

39      Where the protection of the earlier trade mark extends to the whole 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 registration of an EU trade mark to be refused, it suffices that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T 81/03, T‑82/03 and T 103/03, EU:T:2006:397, paragraph 76 and the case-law cited).

40      In assessing the similarity of the goods at issue, all the relevant factors relating to those goods 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).

41      Goods which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other, so that consumers may think that responsibility for the production of those goods lies with the same undertaking. Therefore, only goods intended for the same public and which may be used together may be regarded as complimentary (see judgments of 18 February 2011, PPTV v OHIM – Rentrak (PPT), T‑118/07, not published, EU:T:2011:58, paragraphs 29 and 30 and the case-law cited, and of 27 November 2014, Hesse and Lutter & Partner v OHIM – Porsche (Carrera), T‑173/11, not published, EU:T:2014:1001, paragraph 40 and the case-law cited).

42      Thus, for the purposes of the assessment of whether the goods are complementary, the perception of consumers of the importance of a product for the use of another product or service should, ultimately, be taken into account (see judgment of 14 May 2013, Representation of a chicken, T‑249/11, EU:T:2013:238, paragraph 22 and the case-law cited).

43      Whether the goods are complementary can be assessed by also taking account of the economic reality of the market as it currently exists (see, to that effect, judgment of 20 December 2023, Torre Oria v EUIPO – Giramondi and Antonelli (WINE TALES RACCONTI DI VINO), T‑655/22, not published, EU:T:2023:859, paragraphs 41 and 42 and the case-law cited).

44      In the present case, the Board of Appeal examined the evidence submitted by the intervener and inferred from it that certain goods, in particular ‘gaming chairs’, ‘computer tables’ and ‘trolleys for computers’, which could be regarded as being included in the ‘broad categories of goods’ covered by the contested mark and referred to in paragraph 3 above, were specifically designed to meet needs relating to the use of a computer. Consequently, it found that those goods specifically dedicated to the use of a computer were complementary to the goods covered by the earlier mark. It also noted that the evidence filed by the intervener demonstrated that those complementary goods could share the same distribution channels and target the same end consumers. It concluded that all of those goods were similar to a low degree.

45      As regards the comparison of the goods covered by the contested mark (other than ‘cushions’) with those covered by the earlier mark, the dispute is limited, first, to the question of whether they are complementary and, second, to the identification of their distribution channels and end consumers.

46      In the first place, as regards whether the goods at issue are complementary, it must be noted that ‘armchairs; office armchairs; seats; desks; furniture’ covered by the contested mark are important for the use of the goods covered by the earlier mark ‘computers, computer hardware, notebooks, tablet, keyboard, mouse, monitors, headsets, speaker, cover and bag of the computer and tablet, mouse mat’, in particular in the computer games sector.

47      For example, in the computer games sector examined by the Board of Appeal, which concerns a part of the general public and therefore of the relevant public, the importance of certain furniture for the use of computer hardware was established by the evidence submitted by the intervener, which shows, for example, chairs which are specifically intended to be used with that hardware and therefore have a functional link with it.

48      It is true that that evidence dates from two to five years after the filing date of the contested mark. In that regard, it should be recalled that, according to the case-law regarding absolute grounds for invalidity, the relevant date on which an application for a declaration of invalidity was examined is the date of filing of the application for the mark at issue (see order of 24 September 2009, Bateaux mouches v OHIM, C‑78/09 P, not published, EU:C:2009:584, paragraph 18 and the case-law cited). That principle is nevertheless tempered by the case-law, which allows material subsequent to that date to be taken into account, provided that such material relates to the situation on the date of filing of the trade mark application (judgment of 3 June 2009, Frosch Touristik v OHIM – DSR touristik (FLUGBÖRSE), T‑189/07, EU:T:2009:172, paragraphs 19 and 28).

49      In addition, since the effect of absolute invalidity is the same as relative invalidity, namely the cancellation of the contested mark ab initio, therefore, on the date on which it was filed, the principles described in paragraph 48 above concerning absolute grounds for invalidity also apply to relative grounds for invalidity such as that relied on, in the present case, by the applicant pursuant to Article 8(1)(b) of Regulation No 207/2009.

50      It follows that, in the present case, the fact that the evidence in question dates from two to five years after the date on which the contested mark was filed does not deprive it of all evidential value.

51      In addition, in accordance with the case-law cited in paragraph 43 above, the evidence in question makes it possible to assess whether the goods at issue are complementary by taking account of the economic reality of the market.

52      It should be stated also that some of the evidence in question shows that manufacturers of computer hardware may also offer for sale complementary furniture, with the result that the relevant public may think that the responsibility for manufacturing such furniture lies with the same undertaking (see, to that effect, judgment of 18 October 2018, Next design+produktion v EUIPO – Nanu-Nana Joachim Hoepp (nuuna), T‑533/17, not published, EU:T:2018:698, paragraphs 36 and 37).

53      Therefore, the Board of Appeal did not make an error of assessment in finding that the goods at issue were complementary, in particular for the part of the relevant public using computer games.

54      In the second place, it should be noted that, while it is true that the distribution channels for furniture and those for computer hardware are not necessarily the same, they may overlap, as established by the evidence adduced by the intervener before the Board of Appeal, which shows examples of websites for the sale of computer hardware, some of which are websites of manufacturers of such equipment and offer specifically adapted chairs.

55      The end consumers are consumers who make up the general public, both for the goods covered by the earlier mark and for those covered by the contested mark, as has been stated in paragraphs 30 and 31 above.

56      Consequently, the Board of Appeal was entitled to find that those two similarity factors, combined with the goods at issue being complementary, made it possible to conclude that they were similar to a low degree.

57      None of the applicant’s arguments can invalidate that finding.

58      First, as regards the applicant’s argument that the Board of Appeal could not find that the goods at issue were complementary by referring to ‘gaming chairs’ specifically adapted for people sitting at a computer for a long time, it must be held that such chairs were not excluded from the description of the goods covered by the contested mark and that they could be included in the Board’s reasoning as examples included in the general categories of goods found in that description.

59      Second, as regards the applicant’s argument that furniture manufacturers are not the same as computer hardware manufacturers, it is true that it can be accepted that furniture and computers will not be manufactured in the same factory. However, there is nothing to prevent the same undertaking from being responsible, vis-à-vis the relevant public, for their production or marketing. In any event, in the present case, that argument does not invalidate the Board of Appeal’s assessments regarding whether the goods at issue were complementary, and regarding their distribution channels and their end consumers, which are sufficient to conclude that there is a low degree of similarity between those goods. Furthermore, the applicant cannot reasonably criticise the contested decision on the ground that the Board of Appeal gave too much weight to the similarity factors related to the distribution channels and consumers targeted, since it also examined, in addition to those two factors, whether the goods at issue were complementary and thus based its finding that there was a low degree of similarity between those goods on a number of factors.

60      Third, as regards the applicant’s argument that end consumers of the goods at issue are not the same, because they do not necessarily purchase furniture and a computer at the same time, it is sufficient to recall that the applicant does not dispute that the relevant public for all those goods is the general public.

61      Fourth, in response to the applicant’s criticisms that the Board of Appeal found that the goods at issue were complementary, contrary to EUIPO’s decision-making practice, it must be recalled that EUIPO is required to adopt its decisions on the basis of the circumstances of each specific case and it is not bound by previous decisions taken in other cases. The legality of the decisions of the Board of Appeal must be assessed solely on the basis of Regulation No 207/2009 and not on the basis of a previous decision-making practice (see judgment of 14 December 2022, Eurol v EUIPO – Pernsteiner (eurol LUBRICANTS), T‑636/21, not published, EU:T:2022:804, paragraph 76 and the case-law cited).

62      It follows from the foregoing considerations that the Board of Appeal was fully entitled to find that there was a low degree of similarity between the goods at issue. The first part of the first plea must, therefore, be rejected as being unfounded.

 The second part: the consequences inferred from the conceptual identity of the signs at issue as regards the likelihood of confusion were erroneous

63      The applicant maintains that the Board of Appeal erred in finding that the conceptual identity of the signs at issue created an ‘additional link’ between them in the mind of the relevant public, from which it erroneously inferred a likelihood of confusion. However, according to the applicant, the intervener adduced no evidence before the Board of Appeal regarding the earlier mark’s enhanced distinctiveness, whereas the case-law and current practice of EUIPO require such evidence for it to be possible to conclude that a conceptual identity gives rise to a likelihood of confusion.

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

65      It should be recalled that a global assessment of the likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the trade marks and between those goods or services. Accordingly, a lesser 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, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).

66      In the present case, in the context of the global assessment of the likelihood of confusion, the Board of Appeal took into account the low degree of similarity between the goods at issue and the identity of the signs at issue. It stated that the signs at issue conveyed the same concept for consumers who understand the English word ‘predator’, which means ‘an animal that naturally preys on [other animals]’. According to the Board of Appeal, there is a likelihood of confusion as regards the goods at issue which are similar to a low degree.

67      It should be noted that the applicant does not criticise the Board of Appeal’s finding that the signs at issue are identical, whether visually, phonetically or conceptually. It also does not deny that, as the Board of Appeal found, the distinctiveness of the earlier mark is, at the very least, average.

68      In those circumstances, as required by the case-law (judgment of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 22), the Board of Appeal carried out a global assessment of those factors which were not disputed by the applicant and of the low degree of similarity between the goods at issue and, following that global assessment of the relevant factors in the present case, it was fully entitled to conclude that there was a likelihood of confusion.

69      First, the conceptual identity of the signs at issue, in view of the meaning of the word ‘predator’ in English, and, second, the impact of that meaning on the inherent distinctiveness of the earlier mark formed part of those relevant factors and the Board of Appeal, therefore, was entitled to take them into consideration in the global assessment of the likelihood of confusion without erring in law.

70      Therefore, the second part of the first plea must be rejected as being unfounded, and the first plea must be rejected in its entirety.

71      In the light of all the foregoing considerations, since neither of the pleas put forward by the applicant in support of the form of order sought by it is to be upheld, the action must be dismissed, there being no need to rule on the admissibility of the action in the light of the Cancellation Division’s decision of 26 September 2023 in the revocation proceedings registered with EUIPO under number 56 052 C.

 Costs

72      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.

73      The intervener has applied for the applicant to be ordered to pay the costs. EUIPO made submissions to the same effect in the event that a hearing was convened.

74      Since the applicant has been unsuccessful and a hearing has taken place, the applicant 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 (Second Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Domator24 sp. z o.o. to pay the costs.

Delivered in open court in Luxembourg on 20 November 2024.

*      Language of the case: English.

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