JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
7 March 2019 (*)
(EU trade mark — Opposition proceedings — Application for EU word mark VERA GREEN — Earlier EU word mark LAVERA — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑106/18,
Laverana GmbH & Co. KG, established in Wennigsen (Germany), initially represented by J. Wachinger, M. Zöbisch and R. Drozdz, then by N. Schmitz and J. Bittner, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by L. Rampini, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, and intervener before the General Court, being
Agroecopark, SL, established in Majadahonda (Spain), represented by E. Seijo Veiguela and C. Serrano Rodríguez, lawyers,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 18 December 2017 (Case R 982/2017-5) relating to opposition proceedings between Laverana and Agroecopark,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, A. Dittrich (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 20 February 2018,
having regard to the response of EUIPO lodged at the Court Registry on 25 May 2018,
having regard to the response of the intervener lodged at the Court Registry on 18 May 2018,
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
Background to the dispute
1 On 2 February 2016, the intervener, Agroecopark, SL, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
2 Registration as a mark was sought for the word sign VERA GREEN.
3 The goods and services in respect of which registration was sought are in Classes 3, 16 and 35 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 correspond, for each of those classes, to the following description:
– Class 3: ‘Essential oils and aromatic extracts; toiletries; cleaning and fragrancing preparations; animal grooming preparations’;
– Class 16: ‘Adhesives for stationery or household purposes; bags and articles for packaging, wrapping and storage of paper, cardboard or plastics; printed matter; decoration and art materials and media; paper and cardboard; stationery and educational supplies; disposable paper product’;
– Class 35: ‘Wholesale services in relation to cleaning articles; wholesale services in relation to toiletries; wholesale services in relation to animal grooming preparations; wholesale services in relation to fragrancing preparations; wholesale services in relation to cleaning preparations; wholesale services in relation to hygienic implements for humans; wholesale services in relation to hygienic implements for animals; wholesale services in relation to beauty implements for humans; wholesale services in relation to beauty implements for animals; retail services in relation to cleaning preparations; retail services in relation to toiletries; retail services in relation to animal grooming preparations; retail services in relation to hygienic implements for humans; retail services in relation to beauty implements for humans; retail services in relation to beauty implements for animals; retail services in relation to hygienic implements for animals; retail or wholesale services for pharmaceutical, veterinary and sanitary preparations and medical supplies; online retail store services relating to cosmetic and beauty- products’.
4 The trade mark application was published in Community Trade Marks Bulletin No 2016/024 of 5 February 2016.
5 On 27 April 2016, the applicant, Laverana GmbH & Co. KG, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
6 The opposition was based on EU word mark LAVERA registered on 25 February 2008, No 4098679, EU word mark lavera Neutral registered on 25 April 2012 No 4339727 and EU figurative mark registered on 3 March 2015 No 11598752, reproduced as follows:
7 The earlier word marks LAVERA and lavera Neutral cover, inter alia, goods in Classes 3 and 16 corresponding, for each of those classes, to the following description:
– Class 3: ‘Perfumery goods; essential oils; cosmetics, decorative cosmetics; face creams and lotions; skin-cleansing lotions and creams, hand and body lotions and creams; tinted moisturising creams, make-up, foundation, face powder and rouge; blemish stick, lipstick, lip pencils, eyeliner pens and mascara, eyeshadow; sun care preparations; foot-care preparations; foot creams and lotions; exfoliants; abrasive implements in the form of pumice stones; non-medicated powders and lotions for foot spas; body care products, shower gels, hair care products; shampoos and hair lotions, conditioning rinses (conditioners), combined shampoo and conditioner, hair sprays, styling mousse and gels; hair dyes; baby and infant care products; bath oils, shampoos, skin oils and creams; anti-wrinkle creams; massage oils; grooming products for men; shaving cream, aftershave balm; deodorants; products for oral hygiene (not for medical purposes); preparations for the mouth and for cleaning the mouth, breath-freshening and mouth-freshening preparations, mouth sprays, mouth rinses, dentifrices; toothpaste; antiperspirants’;
– Class 16: ‘Printed matter; stationery; photographs; adhesives for stationery or household purposes; paint brushes; instructional and teaching material (except apparatus); plastic materials for packaging; towels of paper, paper napkins’.
8 The earlier figurative mark reproduced in paragraph 6 above covers, inter alia, goods and services in Classes 3 and 35 corresponding, for each of those classes, to the following description:
– Class 3: ‘Perfumery; ethereal oils; cosmetics, decorative cosmetics; face creams and lotions for cosmetic purposes; skin cleansing lotions and creams, hand and body lotions and creams for cosmetic use; tinted moisturising creams for cosmetic use, make-up, foundation for cosmetic use, face powder and rouge; blemish stick, lipstick, lip pencils, eyeliner pens and mascara, eyeshadow; sunscreen preparations; footcare preparations; foot creams and lotions for cosmetic purposes; exfoliants; pumice stone; non-medicated powders and lotions for foot spas; body care products for cosmetic use; shower gels, hair care cosmetics; shampoos and hair lotions, conditioning rinses (conditioners), combined shampoo and conditioner, hair sprays, styling mousse and gels; hair dyes; cosmetic care preparations for babies and children; bath oils, shampoos, skin oils and creams for cosmetic use; anti-wrinkle creams; massage oils; cosmetic care preparations for men; shaving cream, aftershave lotions; deodorants; products for oral hygiene (not for medical purposes); preparations for oral care and for cleaning the mouth, not for medical purposes, breath and mouth freshening preparations, mouth sprays, not for medical use, mouth rinses, not for medical use, dentifrices; tooth paste; antiperspirants’;
– Class 35: ‘Advertising; business management, business administration; office functions; information agencies (commercial) and consumer consultancy; business inquiries; sales research; marketing studies; arranging and conducting of presentations, fashion shows and receptions for business or sales purposes; auctionerring; commercial administration of licensing of the goods and services of others’.
9 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
10 On 28 March 2017, the Opposition Division rejected the opposition.
11 On 11 May 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Opposition Division.
12 By decision of 18 December 2017 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal on the ground that there was no likelihood of confusion between the marks at issue.
13 In the first place, the Board of Appeal found that the signs at issue were slightly similar visually and phonetically and that they were conceptually different.
14 Visually, the Board of Appeal found that the marks at issue had the letters ‘v’, ‘e’, ‘r’, ‘a’ in common in that order and that they differed by the additional word element ‘green’ in the mark applied for and by the fact that the earlier word marks included at their beginning the letters ‘la’. The Board of Appeal noted that the marks at issue therefore differed at the beginning of their word elements, to which the relevant public pays great attention, by their endings and by the fact that the order of the letters ‘v’, ‘e’, ‘r’, ‘a’ constituted a single word in the mark applied for whereas those letters were part of the word ‘lavera’ in the earlier marks. According to the Board of Appeal, the relevant public would not break down the word element ‘lavera’ and would not single out the word element ‘vera’.
15 Phonetically, the Board of Appeal found, in essence, that the marks at issue would be pronounced as ‘ve-ra/green’ and ‘la-ve-ra’, respectively, and that the relevant public would perceive them as only slightly similar on account of the beginning of their word elements, to which the relevant public would pay great attention, differing phonetically and due to their different endings.
16 Conceptually, the Board of Appeal found that the mark applied for would be perceived as a reference to the aloe vera plant, which is known for its curative properties, and to the fact that the goods covered by the mark applied for are not harmful for the environment, or as a combination of the female first name Vera and surname Green. By contrast, the earlier mark LAVERA did not convey any meaning, because, for the relevant public, that word would not have any particular meaning. Furthermore, as regards the earlier mark lavera Neutral, the Board of Appeal took the view that, if the word ‘neutral’ were grasped, it would convey the idea that the goods covered by that mark were not aggressive for the human skin and therefore referred a concept different from that evoked by the mark applied for.
17 In the second place, as regards the global assessment of the likelihood of confusion, first, the Board of Appeal found, in essence, that the marks at issue displayed significant conceptual divergences and, combined with the visual and phonetic differences, amounted to significantly differing overall impressions. Second, the Board of Appeal found that the marks at issue conveyed sufficiently different overall impressions, the relevant public was unlikely to confuse the marks, despite the fact that the goods and services at issue were identical or similar and irrespective of the alleged enhanced distinctive character of the earlier marks. Third, as regards the decision of the Oficina Española de Patentes y Marcas (Spanish Patent and Trade Mark Office) of 23 February 2017 (‘the decision of 23 February 2017’), the Board of Appeal found, first, that EUIPO and the EU judicature are not bound by a decision given by a Member State since the EU trade mark regime applies independently of any national system and, second, that the decision of 23 February 2017 provided a very succinct motivation only and, in any event, that it was not final since the intervenor had filed an appeal against it.
Forms of order sought
18 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO and the intervener to pay the costs.
19 EUIPO and the intervener contend that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
Law
20 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001.
21 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, 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.
22 According to the case-law, 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. According to the same case-law, 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).
23 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union only (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and Others), T–81/03, T‑82/03 and T–103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
The relevant public and its level of attention
24 According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods and services concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
25 In that regard, first, it should be noted that it follows from the wording of Article 8(1)(b) of Regulation 2017/1001 and from the case-law cited in paragraph 23 above that the relevant public is that of the territory in which the earlier trade mark is protected. Having regard to the fact that the earlier marks are EU trade marks, the Court therefore upholds the Board of Appeal’s finding, in paragraph 20 of the contested decision, that the relevant territory is that of the European Union.
26 In the second place, as regards the goods at issue in Classes 3 and 16, those goods are everyday consumer goods which may be purchased at a relatively low price. Therefore, the Board of Appeal rightly held, in paragraphs 23 and 24 of the contested decision, that those goods were aimed at the public at large with an average level of attention. In that context, it should be observed that the applicant’s claim that the Board of Appeal erred in finding that the average consumer of the goods in question displayed a high level of attention is based on a misreading of the contested decision. It follows from paragraph 24 of that judgment that the Board of Appeal actually rejected that argument.
27 In the third place, as regards the services at issue in Class 35, the Board of Appeal took the view, in paragraphs 23 and 24 of the contested decision, that they were aimed at business customers with specific knowledge who pay a high level of attention when acquiring those services, in particular in respect of the wholesale services of pharmaceutical, veterinary and sanitary preparations and medical supplies.
28 The applicant does not call into question the finding that some of the services in question, namely the wholesale services, are intended for business customers with specific knowledge and a high level of attention. The applicant merely states that the wholesale services in Class 35 covered by the mark applied for are not aimed at business customers but at end consumers.
29 EUIPO, supported by the intervener, disputes the applicant’s arguments.
30 In that regard, it should be made clear that, although it is true that the wholesale services in Class 35 are directed at the end consumer, it is also true that they are additionally directed at the manufacturer of the product and at any business intermediaries operating upstream of the final retail sale, as services enabling those economic operators to carry out the final marketing of the product (judgment of 26 June 2014, Basic v OHIM — Repsol YPF (basic), T‑372/11, EU:T:2014:585, paragraph 29). The applicant therefore incorrectly states that those services cannot be aimed at business customers.
31 In any event, even on the assumption that the wholesale services were only aimed at the public at large, that is not capable of calling into question the Board of Appeal’s finding. It follows from the considerations set out in paragraphs 26 to 28 above that, for the purposes of assessing the existence of a likelihood of confusion between the marks at issue, the Board of Appeal took the view that the relevant public in the present case consisted both of the public at large with an average level of attention and business customers with a high level of attention. Accordingly, any error on the part of the Board of Appeal would have had no bearing on its finding as to there being no likelihood of confusion between the marks at issue and, taken in isolation, would not have been capable of affecting the legality of the contested decision.
Comparison of the goods and services at issue
32 According to settled case-law, in assessing the similarity of goods and services, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, 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 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño Original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
33 In the present case, it is common ground between the parties that, as the Board of Appeal found in paragraphs 31 to 44 of the contested decision, the goods and services covered by the mark applied for are partly identical and partly similar to those covered by the earlier marks described in paragraph 6 above.
Comparison of the signs at issue
34 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 the signs, account being taken, in particular, of 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 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).
35 As a preliminary matter, it must be found that none of the applicant’s arguments refers to the earlier mark lavera Neutral or to the figurative mark reproduced in paragraph 6 above. It is therefore appropriate to limit the review of the contested decision to the comparison of the mark applied for and the earlier word mark LAVERA. In any event, it should be made clear that the earlier figurative mark and the earlier word mark lavera Neutral are less similar to the mark applied for than the word mark LAVERA due to the presence of additional elements which have no equivalent in the mark applied for.
36 Furthermore, it should be noted that, for the purposes of the comparison of the marks at issue, the applicant submitted a series of arguments seeking to establish, first, that the element ‘vera’ is the dominant element of those marks and, second, that the element ‘green’ in the mark applied for and the group of letters ‘la’ in the earlier mark LAVERA are negligible in the overall impression created by those marks.
37 Given the bearing of that question on the assessment of the similarity of the signs, those arguments must be examined before comparing the signs at issue visually, phonetically and conceptually.
The distinctive and dominant elements of the signs at issue and the elements of the signs to be taken into consideration in their comparison
38 The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41).
39 It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
40 The Court of Justice has made clear that the fact that an element is not negligible does not mean that it is dominant, and by the same token the fact that an element is not dominant in no way means that it is negligible (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 44).
41 In the assessment of the dominant character of one or more given components of a composite 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 composite mark (judgment of 16 December 2015, Perfetti Van Melle Benelux v OHIM — Intercontinental Great Brands (TRIDENT PURE), T‑491/13, not published, EU:T:2015:979, paragraph 37).
42 As for the assessment of the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of the element in question and to ask whether it is at all descriptive of the goods for which the mark has been registered (judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM — Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 47).
43 It is in the light of those principles that it must be examined whether the Board of Appeal’s assessment regarding the distinctive and dominant elements of the signs at issue and the factors to be taken into account in their comparison is vitiated by errors.
– The mark applied for
44 As regards the mark applied for VERA GREEN, it follows inter alia from paragraphs 49 to 52 and 64 of the contested decision that the Board of Appeal found, in essence, that ‘green’ is a basic English word and would be perceived as a reference to the fact that the goods covered by the mark applied for are not harmful for the environment. As for ‘vera’, that term would be perceived as a reference to the aloe vera plant, known for its curative properties, and would therefore also be weakly distinctive. The Board of Appeal further stated that ‘vera’ and ‘green’ are a female first name and a surname, respectively. Furthermore, the Board of Appeal stated that it was necessary to make an overall assessment of the mark applied for overall, since it had no dominant or negligible elements.
45 The applicant disputes that assessment and claims, as regards the distinctive elements of the mark applied for, that the word element ‘green’ in that mark is purely descriptive of the goods in Classes 3 and 16 and that the element ‘vera’ is its distinctive element because in certain Romance languages, such as Italian, that word also has an abstract sense, namely that of ‘the true/real one’, and, therefore, would not be immediately associated everywhere with the aloe vera plant. It submits that, since the first name Vera is unknown to the Italian-speaking consumer, the mark applied for would not be perceived as such. As regards the dominant elements of the mark applied for, the applicant claims that the element ‘vera’ is, by itself, likely to dominate the image of the mark applied for which the relevant public will remember, so that the element ‘green’ would be negligible in the overall impression created by it. In addition, the applicant alleges that the strong impact of the word element ‘vera’ on the overall impression of the mark applied for derives from the fact that that element is placed at the beginning of the mark applied for, to which consumers generally pay higher attention.
46 EUIPO and the intervener dispute the applicant’s arguments.
47 In that regard, as regards, first, the distinctive elements of the mark applied for, it should be made clear that, as the Board of Appeal also found in paragraph 64 of the contested decision, the term ‘vera’ and ‘green’ may be perceived as a female first name and a surname. That finding is not called into question by the applicant’s unsubstantiated claim that the Italian-speaking consumer does not know of the first name Vera. The first name Vera is commonly used in the European Union, also in Italy, and it can therefore be considered that the Italian-speaking public would also be able to recognise that the word ‘vera’ is a first name. In those circumstances, neither of the two elements will be regarded by the relevant public as being the most distinctive element of the mark applied for.
48 Furthermore, as the Board of Appeal found in paragraph 50 of the contested decision, ‘green’, which is a basic English word, may also be perceived as a reference to the fact that the goods covered by the mark applied for are not harmful for the environment and thus as weakly distinctive. As regards the element ‘vera’, the Board of Appeal also correctly held, in paragraph 51 of the contested decision, that that element could be perceived as referring to the aloe vera plant which is known for its curative properties and therefore that it is weakly distinctive in the light of the goods in Class 3. The applicant has not called those findings into question.
49 Next, it must be examined whether, as the applicant submits, the Board of Appeal disregarded the fact that the element ‘vera’ has, in certain Romance languages such as Italian, an abstract sense, namely meaning ‘the true/real one’, and will therefore be perceived, by that part of the relevant public, as the most distinctive element of the mark applied for.
50 Whilst it is true that the word ‘vera’ has, as the feminine form of the adjective ‘vero’, the meaning of ‘genuine’, ‘true’ or ‘real’, that does not automatically mean that the Italian-speaking public will understand the element ‘vera’ of the mark applied for as such.
51 Indeed, the applicant’s reasoning assumes that the relevant public will identify the word ‘vera’ as being the feminine form of the Italian adjective ‘vero’, despite the fact that the word ‘green’, which according to that logic would relate to the word ‘vera’, has no meaning in Italian and that it can be assumed that that word will be identified at first sight as the English word ‘green’. In general, the relevant public does not assume that trade marks are composed of words from two different languages. In the present case, account must be taken of the fact that the use of the feminine form of that adjective in that context is unusual, which makes it even less likely that the Italian-speaking public would understand the mark applied for as being a combination of an Italian adjective and an English noun.
52 Moreover, even if the word were understood in the sense proposed by the applicant, that does not give it a distinctive character in relation to the goods and services covered by the mark applied for. The word ‘vera’, taken in isolation, will be understood as conveying the idea that the goods covered by the mark applied for are composed of non-artificial, natural and authentic ingredients or, read in conjunction with the word ‘green’, as reinforcing the idea that goods concerned are not harmful for the environment.
53 Therefore, the applicant’s argument that the element ‘vera’ of the mark applied for will be perceived by the Italian-speaking public as the most distinctive element of the mark applied for must be rejected.
54 Second, as regards the dominant elements of the mark applied for VERA GREEN, it should be noted that, contrary to what is claimed by the applicant, the word element ‘vera’ has no dominant character in that mark.
55 First of all, the Court finds that the applicant’s submissions as to the dominant character of the element ‘vera’ assume that that element is particularly distinctive. However, that argument has already been rejected in paragraphs 50 to 52 above.
56 Next, it should be noted that the mark applied for is a word mark. As such, it consists entirely of letters, words or associations of words which are written in printed characters in a normal font without any specific graphic element (judgments of 20 April 2005, Faber Chimica v OHIM — Industrias Quimicas Naber (Faber), T‑211/03, EU:T:2005:135, paragraph 33, and of 28 June 2017, Josel v EUIPO — Nationale-Nederlanden Nederland (NN), T‑333/15, not published, EU:T:2017:444, paragraph 37). The argument regarding the alleged dominant character of the word ‘vera’ cannot therefore be based on any particular graphic or stylistic aspects that the word ‘vera’ might have.
57 Lastly, the Court notes that, although the beginning of marks may be more likely to catch the consumer’s attention than the end of marks, that consideration cannot apply in all cases and cannot undermine the principle that the examination of the similarity between the marks must take account of the overall impression given by them (judgment of 14 September 2017, Aldi Einkauf v EUIPO — Weetabix (Alpenschmaus), T‑103/16, not published, EU:T:2017:605, paragraph 69). In the present case, the mere fact that the element ‘vera’ has been placed at the beginning of the mark applied for is not sufficient to confer on it a dominant character. That aspect is counterbalanced by the fact that the mark applied for is composed only of two relatively short words and by the fact that the element ‘vera’ has a lower number of letters than the element ‘green’. In those circumstances, it can be considered that the relevant public will pay similar attention to both elements of the mark applied for.
58 The Board of Appeal was therefore correct not to identify a dominant element in the mark applied for.
59 Third, as regards the applicant’s argument that the Board of Appeal ought to have compared the mark applied for, VERA GREEN, with the earlier trade mark, LAVERA, solely on the basis of the element ‘vera’, the Court finds that, having regard to the lack of that element’s dominant character, that element is a fortiori not alone capable of dominating the overall impression created by the mark applied for that the relevant public will remember.
60 It should also be noted that, even if the element ‘vera’ did have a dominant character in the mark applied for, the Board of Appeal did not err in taking account of the element ‘green’ in the comparison of the mark applied for with the earlier mark LAVERA.
61 Indeed, as is clear from the case-law cited in paragraph 34 above, it is only if all the other components of the mark are negligible that the assessment of similarity can be carried out solely on the basis of the dominant element. Contrary to what the applicant claims, the element ‘green’ is not negligible in the overall impression created by the mark applied for that the relevant public will remember.
62 In that regard, it should be noted that the applicant’s argument is based, in essence, on the assumption that the word ‘green’ has a weak distinctive character. However, according to the case-law, the weak distinctive character of the elements of a mark does not necessarily mean, in itself, that those elements must be regarded as negligible in the overall impression given by them (see, to that effect, judgments of 23 September 2009, Phildar v OHIM — Comercial Jacinto Parera (FILDOR), T‑99/06, not published, EU:T:2009:346, paragraph 42, and of 17 January 2017, QuaMa Quality Management v EUIPO — Microchip Technology (medialbo), T‑225/15, not published, EU:T:2017:10, paragraph 57). Furthermore, it must be found that, although the element ‘green’ appears in second position in the mark applied for, it will not go unnoticed by the relevant public in view of the reasons set out in paragraph 57 above.
63 The Board of Appeal was therefore correct in finding that it was appropriate to take account of the overall impression created by the elements of the mark applied for when comparing it with the earlier mark LAVERA.
– The earlier mark LAVERA
64 As regards the dominant and distinctive elements of the earlier mark LAVERA, the Board of Appeal held, in essence, that the latter was composed solely of one meaningless element.
65 The applicant challenges that assessment and criticises the Board of Appeal, in essence, for having disregarded the fact that the Spanish-speaking, Italian-speaking and French-speaking public would divide the word element ‘lavera' into two elements, namely the definite article ‘la’ and the element ‘vera’, which constitutes the distinctive element of the earlier mark and which, in itself, dominates the overall impression created by that mark.
66 EUIPO and the intervener dispute the applicant’s arguments.
67 In that regard, it should be noted, first, that, as argued by EUIPO, the sequence of letters ‘l’, ‘a’, ‘v’, ‘e’, ‘r’, ‘a’ in the earlier mark forms a single word. From a formal point of view, there is no hyphen, punctuation or any other characteristic which would suggest that the relevant public would break down and conduct a separate examination of the elements ‘la’ and ‘vera’.
68 Admittedly, it is apparent from the case-law that the fact that a word mark is composed of a single term does not exclude the possibility of identifying in that mark, if applicable, an element that is dominant in the overall impression it produces (order of 1 December 2005, Vitakraft-Werke Wührmann & Sohn v OHIM, C‑512/04 P, not published, EU:C:2005:736, paragraph 23).
69 However, contrary to what the applicant claims, the fact that the earlier mark LAVERA is formed by a single word is not irrelevant due to the fact that, according to settled case-law, the relevant public normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 21 et the case-law cited).
70 Only if a sequence of letters suggests to the relevant public a particular meaning or resembles words which it knows will the relevant public break down a single word into several elements (see, to that effect, judgment of 6 October 2004, Vitakraft-Werke Wührmann v OHIM — Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 51). However, that case-law cannot be applied to the present case.
71 First, as regards the group of letters ‘la’, it is true that it corresponds in French, Spanish and Italian to the definite article in the feminine singular. Nevertheless, that does not imply in any way that the French-speaking, Italian-speaking and Spanish-speaking public will distinguish these two letters in all marks beginning with that sequence. It should be taken into account that a wide variety of different words in the languages mentioned by the applicant begin with the group of letters ‘la’, such as ‘laver’ (to wash) in French and its equivalents, ‘lavare’ in Italian and ‘lavar’ in Spanish. Consequently, the relevant public is accustomed to those letters forming an integral part of a single word. In the absence of any visual separation between the following letters, the relevant public, including the French, Spanish and Italian-speaking public, will therefore not pay particular attention to the group of letters ‘la’ and will not identify them as a separate word element.
72 Second, as regards the sequence of letters ‘v’, ‘e’, ‘r’, ‘a’, it is true that, at least in Italian, that word has, as the feminine form of the adjective ‘vero’, the meaning of ‘the true/real one’. That does not, however, mean that, for that reason alone, the applicant’s claim, put forward for the first time before the Court, must be upheld that that sequence of letters will draw the attention of the Italian-speaking public and lead it to divide the earlier mark LAVERA into two elements, namely ‘la’ and ‘vera’.
73 The sequence of letters ‘v’, ‘e’, ‘r’, ‘a’ is only one of many sequences of letters in the mark LAVERA which, for the Italian-speaking public, may suggest a concrete meaning or which resemble words known to that public. In particular, it is likely that the Italian-speaking public will recognise the Italian verb ‘lavare’ in the earlier mark LAVERA, the root of which is ‘laver-’ when conjugated in the simple future tense. In that language, the verb ‘lavare’, when conjugated in the third person singular of the future simple, becomes ‘laverà’.
74 Furthermore, the likelihood that the Italian-speaking public would naturally be led to distinguish the adjective ‘vera’ in the earlier mark LAVERA is diminished by the lack of a noun to which it could refer. Admittedly, adjectives may be transformed into nouns. However, in Italian, the transformation of the adjective ‘true’ or ‘real’ into a noun is, in principle, achieved by using the masculin form and therefore, contrary to what the applicant claims, the expression ‘the true/real one’ would not, in Italian, be achieved through ‘la vera’, but rather by ‘il vero’. The transformation of the feminine form of an adjective into a noun would occur only in relation to a well-known person, product or, where applicable, a place, the identity of which is known to the public at large. However, the applicant has not provided any evidence from which it could be concluded that that is the case here.
75 Contrary to word marks which, although strictly speaking formed by a single word, appear to the relevant public on first sight as formed by one or several distinct and separable units, such as the sequences of letters ‘v’, ‘i’, ‘t’, ‘a’ and ‘k’, ‘r’, ‘a’, ‘f’, ‘t’ in the mark VITAKRAFT, ‘e’, ‘c’, ‘o’ and ‘b’, ‘l’, ‘u’, ‘e’ in the mark Ecoblue or ‘e’, ‘u’, ‘r’, ‘o’ in the mark EURON, it is unlikely that the Italian-speaking public, rather than perceiving the earlier mark LAVERA as a whole, would break it down into the two elements ‘la’ and ‘vera’ (see, to that effect, judgments of 6 October 2004, VITAKRAFT, T‑356/02, EU:T:2004:292, paragraph 51; of 13 February 2007, Ontex v OHIM — Curon Medical (CURON), T‑353/04, not published, EU:T:2007:47, paragraph 68; and of 12 November 2008, ecoblue v OHIM — Banco Bilbao Vizcaya Argentaria (Ecoblue), T‑281/07, not published, EU:T:2008:489, paragraph 30).
76 The Court therefore holds that the Board of Appeal’s assessment that the element ‘lavera’ will not be perceived as made up of two words joined together but as a single word is not vitiated by any error.
77 Consequently, the applicant’s assertion that at least part of the relevant public will, first, perceive the sequence of letters ‘v’, ‘e’, ‘r’, ‘a’ as the dominant and distinctive element of the earlier mark LAVERA, and, second, will consider the group of letters ‘la’ as negligible in the overall impression created by that mark must be rejected.
78 The same applies if it is considered that a non-negligible part of the Italian-speaking public will divide the earlier mark LAVERA into two elements, namely the article ‘la’ and the adjective ‘vera’, and will interpret it as meaning ‘the true/real one’. In such a case, the article ‘la’ would not merely introduce the term ‘vera’, but would, with that element, constitute a unique logical and conceptual unit. The use of that article would be considered to be the reason why the word ‘vera’ would not be understood as an adjective, but rather as a noun and, consequently, as having the specific meaning relied on by the applicant. In those circumstances, it cannot be considered that the group of letters ‘la’ placed at the beginning of the earlier mark will go unnoticed by the relevant public or that the overall impression created by that mark would be dominated by the element ‘vera’.
79 The Board of Appeal did therefore not err in basing its decision on the impression created by the word ‘lavera’ as a whole when comparing the earlier mark LAVERA with the mark applied for VERA GREEN.
The visual similarity
80 Visually, the Board of Appeal considered that the marks at issue had only a low degree of similarity.
81 In that regard, the Board of Appeal found, in essence, that the marks at issue had the letters ‘v’, ‘e’, ‘r’, ‘a’ in common in that order and that they differed by the addition of the word element ‘green’ in the mark applied for and by the fact that the earlier word mark began with the letters ‘la’. The Board of Appeal noted that the marks at issue therefore differed at the beginning of their word elements, to which the relevant public pay great attention, by their endings and by the fact that the order of the letters ‘v’, ‘e’, ‘r’, ‘a’ constituted a single word in the mark applied for whereas it was part of the word ‘lavera’ in the earlier mark LAVERA. According to the Board of Appeal, the relevant public would not dissect the word element ‘lavera’ and would not single out the element ‘vera’.
82 The applicant disputes the Board of Appeal’s assessment and claims that, at least for part of the relevant public, there is a high degree of visual similarity between the marks at issue.
83 In that regard, the applicant submits, first, that the marks at issue have the dominant and distinctive element ‘vera’ in common, because the Spanish-speaking, Italian-speaking and French-speaking public would break down the word element ‘lavera’ into two elements, namely the definite article ‘la’ and the element ‘vera’. Second, the applicant claims that, even if the element ‘vera’ did not dominate the overall impression created by the marks at issue in itself, their similarity, which results from the presence of that word, would outweigh the differences resulting from the presence of the descriptive element ‘green’ and the weakly distinctive element ‘la’. In that context, the applicant also submits that the Board of Appeal erred in finding that the word element ‘la’ was sufficient to overshadow the presence of the element ‘vera’ in the earlier mark LAVERA and renders it barely perceptible.
84 EUIPO and the intervener dispute the applicant’s arguments.
85 In order to respond to the applicant’s arguments, it must be noted that, according to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgment of 13 March 2018, Kiosked v EUIPO — VRT (K), T‑824/16, EU:T:2018:133, paragraph 56).
86 In that context, it should be noted, first, that the marks at issue are visually similar in that they both have the letters ‘v’, ‘e’, ‘r’, ‘a’ in common.
87 Contrary to what the applicant claims, the importance of that coincidence is not, however, supported by any dominant or distinctive character in that sequence of letters.
88 As regards the mark applied for, it follows from the considerations set out in paragraphs 47 to 58 above that none of the two word elements will be perceived by the relevant public as being the most distinctive or dominant element of the mark applied for. The relevant public will therefore pay similar attention to both elements making up that mark. As regards the earlier word mark LAVERA, it is sufficient to recall the considerations set out in paragraphs 67 to 78 above, according to which the relevant public will not break down the word ‘lavera’ into the two elements ‘la’ and ‘vera’ and, in any event, will not perceive the latter as the distinctive or dominant element of that mark.
89 However, EUIPO correctly observes that in the earlier mark LAVERA, since the sequence of letters ‘v’, ‘e’, ‘r’, ‘a’ is associated with the group of letters ‘la’ to form the word ‘lavera’, the importance of the overlap in the marks at issue resulting from the presence of the sequence of letters ‘v’, ‘e’, ‘r’, ‘a’ in each mark is mitigated.
90 Second, it should be noted that, as the Board of Appeal found and as claimed by EUIPO and the intervener, the marks at issue have some visual differences between them.
91 First, they differ in that the mark applied for includes the element ‘green’. Contrary to the applicant’s claim, the significance of that difference in comparing the signs at issue visually is not diminished by the fact that that element is weakly distinctive. As is apparent in particular from paragraph 57 above, the element ‘green’ is not less important than the element ‘vera’ in the overall impression created by the mark applied for.
92 Second, the marks at issue also differ by the presence of the group of letters ‘la’ at the beginning of the word ‘lavera’ in the earlier mark. Contrary to what the applicant claims, those letters will not escape the attention of the relevant public.
93 Third, the marks at issue differ in their structure. The mark applied for VERA GREEN consists of two words of four and five letters whereas the earlier mark LAVERA contains only one word of six letters. Furthermore, they differ in their beginnings and endings.
94 In the light of the foregoing considerations, the Court finds that, contrary to what the applicant claims, the Board of Appeal was correct to find that there was a low degree of visual similarity between the marks at issue.
The phonetic similarity
95 Phonetically, the Board of Appeal found, in essence, that the marks at issue would be pronounced ‘ve-ra/green’ and ‘la-ve-ra’ respectively and that, owing to the phonetic dissimilarity at the start of each word, to which the relevant public would attach great importance, and to their endings, the relevant public would perceive them as being only weakly similar.
96 The applicant disputes that assessment and claims that, at least for part of the relevant public, there is a high degree of phonetic similarity between the marks at issue.
97 First, the applicant claims that, given that part of the relevant public will perceive the first two letters ‘l’ and ‘a’ in the earlier mark LAVERA as the definite article ‘la’, that article is not to be taken into account when comparing the marks at issue phonetically. Second, the applicant repeats its argument that the fact that the marks at issue have the dominant element ‘vera’ in common outweighs the differences resulting from the presence of the descriptive element ‘green’ in the mark applied for and from the weakly distinctive element ‘la’ in the earlier mark LAVERA.
98 EUIPO and the intervener dispute those arguments.
99 In that regard, it should be noted that the marks at issue are phonetically similar in that they both have the syllables ‘ve’ and ‘ra’ in common.
100 As the Board of Appeal found and as claimed by EUIPO and the intervener, the marks at issue also differ phonetically.
101 First of all, the Court finds that the syllables ‘ve’ and ‘ra’ are positioned differently in the marks at issue. They are the first two syllables of the mark applied for VERA GREEN, whereas they are preceded by the syllable ‘la’ in the word mark LAVERA. It follows that the stress on the words ‘lavera’ and ‘vera green’ falls differently.
102 Against that context, the Court rejects the applicant’s argument that the syllable ‘la’ of the word ‘lavera’ does not mark the beginning of the earlier word mark LAVERA.
103 That argument is based on the assumption, refuted in paragraphs 67 to 78 above, that part of the relevant public would break down the word ‘lavera’ into two elements, namely ‘la’ and ‘vera’, and would perceive the initial element ‘la’ as negligible or less significant in the overall impression created by the earlier mark LAVERA. However, contrary to what the applicant claims, it cannot be considered that a non-negligible part of the relevant public will not pronounce the syllable ‘la’ in order to refer to the earlier mark LAVERA, even if a part of the relevant public would break down that mark into two elements, ‘la’ and ‘vera’.
104 Second, the marks at issue differ in that the element ‘green’, present in the mark applied for, produces a sound which has no equivalent in the earlier mark LAVERA.
105 The applicant wrongly claims that, owing to the descriptive character of the element ‘green’, that difference has only a limited impact when comparing the marks at issue phonetically. Having regard to the considerations set out in paragraph 57 above, and in particular to the fact that the two words comprising the mark applied for are relatively short, it is unlikely that, in a conversation between a consumer and a seller of the goods in question or where a consumer recommends those goods, only the initial part ‘vera’ would be pronounced in referring to the mark applied for VERA GREEN.
106 Third, the Court finds that, as correctly pointed out by EUIPO, the phonetic differences between the marks at issue concern their beginnings, to which consumers generally pay more attention. The sound of the initial syllable ‘ve’ in the mark applied for is clearly distinct from that of the initial syllable ‘la’ in the earlier mark LAVERA. This also applies to the phonetic impression created by the respective purposes of the marks at issue, namely the element ‘green’ and the syllable ‘ra’.
107 In those circumstances, it must be held that the Board of Appeal was right to consider that the marks at issue displayed only a low degree of phonetic similarity.
The conceptual similarity
108 Conceptually, the Board of Appeal found that the marks at issue were not similar.
109 In that regard, the Board of Appeal found, in essence, that the mark applied for would be perceived as a reference to the aloe vera plant, which is known for its curative properties, and to the fact that the goods covered by the mark applied for are not harmful for the environment, or as a combination of the female first name Vera and surname Green. By contrast, the earlier mark LAVERA did not convey any meaning, because that word would not have any particular meaning for the relevant public.
110 The applicant disputes that assessment and claims that, at least for part of the relevant public, there is a high degree of conceptual similarity between the marks at issue.
111 First, the applicant claims that the Italian-speaking public will interpret the word ‘vera’ as meaning ‘real’ and ‘genuine’, and not as a reference to the aloe vera plant or to the female first name Vera, unknown to that public. According to the applicant, the mark applied for conveys the idea of a ‘true green’ or ‘genuine green’. Second, the applicant claims that the French-speaking, Italian-speaking and Spanish-speaking public would break down the word ‘lavera’ of the earlier trade mark into two elements and would interpret it as meaning ‘the true/real one’. Third, the applicant claims that the marks at issue are conceptually similar since they have the element ‘vera’ in common.
112 EUIPO and the intervener dispute those arguments.
113 In order to address the applicant’s submissions, it should be noted that, according to the case-law, conceptual similarity arises from the fact that two marks use images with analogous semantic content in the sense that those images convey the same idea or concept (judgment of 8 November 2017, Oakley v EUIPO — Xuebo Ye (Representation of a discontinuous ellipse), T‑754/16, not published, EU:T:2017:786, paragraph 62).
114 In the present case, the applicant criticises the Board of Appeal, in essence, for having disregarded the fact that the Italian-speaking public will perceive the mark applied for VERA GREEN as meaning ‘true green’ or ‘genuine green’ and the earlier mark LAVERA as meaning the ‘the true/real one’, and therefore as conveying a similar idea.
115 In that regard, first, the Court finds that, in the light of the considerations set out in paragraphs 48 to 50 above, the applicant wrongly submits that the Italian-speaking public will interpret the mark applied for as conveying the concept of ‘the true/real one’.
116 The Board of Appeal was entitled to find that the mark applied for would be perceived as referring to a person with the first name Vera and surname Green or as a reference to the curative properties of the aloe vera plant and ecological characteristics of the goods covered. As follows from paragraph 47 above, that finding is not called into question by the applicant’s unsubstantiated claim that an Italian-speaking consumer would be unaware of the first name Vera.
117 Second, the Court finds that, having regard to the considerations set out in paragraphs 67 to 76 above, the applicant wrongly claims that the Italian-speaking public would break down the earlier mark LAVERA into two elements, namely ‘la’ and ‘vera’. The applicant’s assessment that the earlier mark LAVERA refers to the concept of ‘the true/real one’ cannot therefore be upheld.
118 On the contrary, first, it should be noted that, for the part of the relevant public which recognises the verb ‘wash’ in that mark, namely the French-speaking and Italian-speaking public, the earlier mark LAVERA will evoke a concept different from that conveyed by the mark applied for. Second, according to the case-law, two signs are not conceptually similar when one has no meaning while the other refers to a concept (see judgment of 14 September 2017, Alpenschmaus, T‑103/16, not published, EU:T:2017:605, paragraph 81 and the case-law cited). It follows that, for the majority of the relevant public for whom the word ‘lavera’ will have no meaning, the marks at issue are not conceptually similar.
119 In any event, it should be noted that, even if a significant part of the relevant public were to perceive the earlier mark as meaning ‘the true/real one’, that concept differs from that referred to by the mark applied for as stated in paragraph 116 above.
120 In those circumstances, the Board of Appeal was entitled to consider, without making any error of assessment, that the marks in question were conceptually dissimilar.
Global assessment of the likelihood of confusion
121 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).
122 The Board of Appeal found that there was no likelihood of confusion between the marks at issue.
123 In that regard, the Board of Appeal found, in essence, first, that the marks at issue have significant conceptual differences which, combined with visual and phonetic differences, resulted in a very different overall impression between the marks at issue. Second, the Board of Appeal found that, due to the fact that the marks at issue would convey sufficiently different overall impressions, the relevant public was unlikely to confuse the marks at issue, despite the fact that the goods and services at issue are identical or similar, even if the earlier mark had acquired an enhanced distinctive character. Third, as regards the decision of 23 February 2017, the Board of Appeal found, first, that EUIPO and the EU judicature are not bound by a decision given by a Member State since the EU trade mark regime applies independently of any national system and, second, that that decision provided a very succinct motivation only and, in any event, that it was not final since the intervenor had filed an appeal against it.
124 The applicant disputes that assessment and claims that, at least for part of the relevant public, there is a likelihood of confusion between the marks at issue.
125 According to the applicant, the likelihood of confusion is based on the high degree of visual, phonetic and conceptual similarity between the marks at issue and the identity of the goods and services in question. The applicant maintains that the word element ‘vera’ in the marks at issue leads consumers to assume that they cover two different ranges or categories of goods from the same undertaking or from economically linked undertakings. In contrast, the differences between the marks at issue resulted from descriptive word elements or word elements devoid of distinctive character. In addition, the applicant refers to the judgment of 14 May 2013, Masottina v OHIM — Bodegas Cooperativas de Alicante (CA’ MARINA) (T‑393/11, not published, EU:T:2013:241), in order to substantiate its claim that, for the purposes of finding a likelihood of confusion, it is sufficient that the composite marks at issue have an element in common. Lastly, the applicant claims that the decision of 23 February 2017, in which registration of the figurative Spanish mark VERA GREEN for which the intervener had applied was refused on the ground that there was a likelihood of confusion with the applicant’s earlier marks, constitutes persuasive authority in the present case in so far as it reflects the view of the public in a specific part of the European Union.
126 EUIPO and the intervener dispute the applicant’s arguments.
127 In that context, it is important to note that, according to the case-law cited in paragraph 22 above, 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 and services covered.
128 It is true that, in the present case, the goods and services at issue are, as the applicant claims, identical in part.
129 However, as regards the similarity of the marks at issue, it follows from the considerations set out above that the Board of Appeal was correct to find that they had only a low degree of visual and phonetic similarity and that they were conceptually different.
130 It should be noted that, in the global assessment of the marks at issue, the visual, phonetic and conceptual differences between the marks are sufficient to prevent, despite the identity or similarity of the goods and services in question, the similarities which result from the fact that the letters ‘v’, ‘e’, ‘r’, ‘a’ are in common from leading to the risk that the relevant public might believe that the goods and services concerned come from the same undertaking or from economically linked undertakings. In particular, contrary to what the applicant submits, the mark applied for VERA GREEN and the earlier mark LAVERA will not be perceived as designating two different ranges of goods coming from the same manufacturer.
131 The Board of Appeal was correct to find that there was no likelihood of confusion between the marks at issue in the present case.
132 That conclusion is not called into question by the other arguments put forward by the applicant.
133 In the first place, the Court rejects the applicant’s complaint that the Board of Appeal should have taken account of the decision of 23 February 2017, which refused registration of the figurative Spanish mark VERA GREEN on the ground that there was a likelihood of confusion between that mark and the applicant’s earlier marks.
134 The European Union trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system. Accordingly, the registrability of a sign as an EU trade mark is to be assessed on the basis of the relevant legislation alone. Therefore, neither EUIPO nor, as the case may be, the EU Courts are bound — even if they may take them into consideration — by decisions adopted in a Member State or a non-Member State, and no provision in Regulation No 207/2009 requires EUIPO or, on appeal, the General Court, to come to the same conclusions as those arrived at by national administrative or judicial authorities in similar circumstances (judgment of 26 October 2017, Alpirsbacher Klosterbräu Glauner v EUIPO (Klosterstoff), T‑844/16, EU:T:2017:759, paragraph 52). It follows that the Board of Appeal was not bound by the decision of 23 February 2017 in the context of its global assessment of the likelihood of confusion in the present case.
135 In any event, it should be noted that, contrary to what the applicant claims, the decision of 23 February 2017 could not have been taken into account by the Board of Appeal in its examination.
136 First, the reasoning of the decision of 23 February 2017 is very succinct and conclusions cannot be inferred from it which are relevant to the present case. The national decision does not explain why it found that the marks in question were similar nor to what degree, and it cannot be inferred from that decision whether the fact that the Spanish mark sought was, unlike the mark applied for in the present case, a figurative mark played a role in the examination of the Spanish Patents and Trade Marks Office. It should also be stressed that, contrary to what the applicant appears to suggest, the decision of 23 February 2017 contains no evidence from which it would be possible to conclude that the Spanish-speaking public will break down the word ‘lavera’ into two elements, ‘la’ and ‘vera’.
137 Second, it is apparent from paragraph 86 of the contested decision that the intervener had lodged an appeal against the decision of 23 February 2017. Therefore, at the time the Board of Appeal made the contested decision, the decision of the Spanish Patents and Trade Marks Office was not final.
138 In the second place, as regards the applicant’s citation of the judgment of 14 May 2013, CA’ MARINA, T‑393/11, not published, EU:T:2013:241), it should be noted that the rule applied in that case does not apply to the present case. It follows from paragraph 50 of that judgment that the Court based its decision, as regards the existence of a likelihood of confusion between the word marks CA’ MARINA and MARINA ALTA, in particular on the finding that they had a high degree of visual, phonetic and conceptual similarity. By contrast, the marks at issue in the present case are only slightly similar visually and phonetically and are conceptually different.
139 In the light of all the foregoing, the Court dismisses the single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001 and, therefore, the action in its entirety.
Costs
140 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. 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 (Fifth Chamber),
hereby:
1. Dismisses the action;
2. Orders Laverana GmbH & Co. KG to pay the costs.
Gratsias | Dittrich | Ulloa Rubio |
Delivered in open court in Luxembourg on 7 March 2019.