Language of document : ECLI:EU:T:2017:173

Provisional text

JUDGMENT OF THE GENERAL COURT (Seventh Chamber)

16 March 2017 (*)

(EU trade mark — Opposition proceedings — Application for the EU figurative mark MOUNTAIN CITRUS SPAIN — Earlier EU figurative mark monteCitrus — Relative ground for refusal — No likelihood of confusion — Identity of the goods — No similarity between the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

In Case T‑495/15,

Sociedad agraria de transformación No 9982 Montecitrus, established in Pulpí (Spain), represented by N. Fernández Fernández-Pacheco, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Schifko and K. Sidat Humphreys, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO being

Spanish Oranges, SL, established in Castellón (Spain),

ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 26 June 2015 (Case R 871/2014-4), relating to opposition proceedings between Sociedad agraria de transformación No 9982 Montecitrus and Spanish Oranges,

THE GENERAL COURT (Seventh Chamber),

composed of V. Tomljenović, President, E. Bieliūnas and A. Kornezov (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 27 August 2015,

having regard to the response lodged at the Court Registry on 3 December 2015,

having regard to the written question put to Spanish Oranges by the Court and the failure to reply to that question within the prescribed period,

having regard to the order of 18 March 2016 refusing to grant Spanish Oranges the status of intervener,

having regard to the change in the composition of the Chambers of the Court,

having regard to the reassignment of the case to the Seventh Chamber and to a new Judge-Rapporteur,

having regard to the fact that no request for a hearing was submitted by the main 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 24 October 2012, Spanish Oranges, 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).

2        Registration as a mark was sought for the following figurative sign:

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3        The goods and services in respect of which registration was sought are in Classes 29, 31 and 39 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:

–        ‘preserved, frozen, dried and cooked fruits and vegetables’ in Class 29;

–        ‘oranges’ in Class 31;

–        ‘transport’ in Class 39.

4        The EU trade mark application was published in Community Trade Marks Bulletin No 229/2012 of 30 November 2012.

5        On 28 February 2013, the applicant, Sociedad agraria de transformación No 9982 Montecitrus, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 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 the earlier EU figurative mark reproduced below:

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7        The earlier mark, which was registered on 5 June 2010 under the number 5460175, covers goods in Classes 29, 31 and 32 corresponding, for each of those classes, to the following description:

–        ‘jams, compotes, jellies; preserved, dried and cooked fruits and vegetables; eggs; edible oils and fats; meat, fish, poultry and game; meat extracts’ in Class 29;

–        ‘fresh fruits and vegetables; agricultural, horticultural and forestry products and grains not included in other classes; live animals, natural plants and flowers; foodstuffs for animals; malt’ in Class 31;

–        ‘fruit drinks and fruit juices; syrups and other preparations for making beverages; beers; mineral and aerated waters and other non-alcoholic drinks’ in Class 32.

8        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009.

9        On 30 January 2014, the Opposition Division rejected the opposition and allowed the mark applied for to be registered in its entirety.

10      On 28 March 2014, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.

11      By decision of 26 June 2015 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal. As regards, first of all, the comparison of the goods and services, it adopted the Opposition Division’s analysis that, first, the goods covered by the mark applied for and those covered by the earlier mark were identical and, secondly, the services covered by that application, namely the services of transport, and the goods covered by the earlier mark were not similar, stating that the parties had not put forward any arguments or reasons which would invalidate the analysis in question. Next, as regards the comparison of the signs at issue, it pointed out the low degree of visual similarity and the lower than average degree of phonetic similarity between them. It also noted, first, that it could not be excluded that, as regards the average Spanish consumer’s perception, a similar idea was conveyed by the signs at issue, secondly, that those signs coincided as regards the element ‘citrus’ for the part of the relevant public that exclusively understood the idea behind that term and, thirdly, that there was no conceptual similarity for the part of that public that did not identify any concept in the signs in question. The Board of Appeal stated, regarding the first case, that the idea of ‘fruits obtained from citrus trees in an earth surface which is not flat but elevated’ was descriptive of the type of goods at issue and of a characteristic of those goods, namely the geographical location in which they are obtained and, regarding the second case, that the element ‘citrus’ simply identified the kind of goods at issue. Lastly, in the context of the global assessment of the likelihood of confusion, it stated that having regard to the principle of the interdependence between the factors taken into account, it had to be found that the identity of the goods covered by the mark applied for and the goods covered by the earlier mark was, in the present case, counteracted by the low degree of visual similarity of the signs. The Board of Appeal took the view that, with regard to the goods at issue, the outcome of the analysis of the visual similarity between those signs would be more important than the outcome of the analysis of the phonetic and conceptual similarity. It thus found that, even with regard to the goods covered by the mark applied for, which had been found to be identical to those covered by the earlier mark, and in the absence of any increased distinctive character of that earlier mark as a result of the use which had been made of it, there was no likelihood of confusion. With regard to the services covered by the mark applied for, it stated that, if only on account of the lack of similarity between those services and the goods covered by the earlier mark, such a likelihood of confusion was, by definition, excluded.

 Forms of order sought

12      The applicant claims that the Court should:

–        annul the contested decision;

–        refuse, therefore, registration of the mark applied for in respect of all the goods in Classes 29 and 31 covered by that mark;

–        order Spanish Oranges to pay the costs.

13      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

 The admissibility of the applicant’s second head of claim

14      By the second head of claim, the applicant requests that the Court, as has been stated in paragraph 12 above, refuse registration of the mark applied for in respect of all the goods in Classes 29 and 31 covered by that mark. By such a head of claim the applicant is thus requesting that the Court issue a direction to that effect to EUIPO.

15      According to settled case-law, in an action before the EU judicature against the decision of a Board of Appeal of EUIPO, EUIPO is required, under Article 65(6) of Regulation No 207/2009, to take the measures necessary to comply with judgments of the EU judicature. Accordingly, it is not for the Court to issue directions to EUIPO. It is for the latter to draw the appropriate inferences from the operative part and grounds of the judgments of the Court (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 20 and the case-law cited). Therefore, the applicant’s head of claim requesting the Court to refuse registration of the mark applied for in respect of all the goods in Classes 29 and 31 covered by that mark is inadmissible.

 The subject matter of the claim for annulment

16      EUIPO maintains that the applicant’s claim for annulment seeks the annulment of the contested decision only in so far as the Board of Appeal ruled out any likelihood of confusion between the mark applied for and the earlier mark as regards the goods concerned and not the services of transport in Class 39, which are also covered by the mark applied for.

17      It must be pointed out that the applicant submits, in support of its claim for annulment and of the single plea in law, only factual and legal arguments relating to the goods covered by the mark applied for and by the earlier mark. It therefore follows, in the light of the whole of the application that the applicant does not, in actual fact, intend to request the annulment of the contested decision in so far as the Board of Appeal ruled out any likelihood of confusion between the mark applied for and the earlier mark as regards the services of transport in Class 39. Consequently, it must be held that the matter which has been brought before the Court is, in actual fact, only a claim for partial annulment of the contested decision, in so far as the Board of Appeal ruled out any likelihood of confusion between the mark applied for and the earlier mark as regards the goods concerned.

 Substance

18      In support of the claim for partial annulment of the contested decision, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009. It submits, in essence, that there is some visual similarity between the signs at issue and that, contrary to what the Board of Appeal found, there is a high degree of phonetic similarity between them and they are identical conceptually. Furthermore, it disputes the Board of Appeal’s global assessment as regards the likelihood of confusion and, indirectly, the definition of the relevant public.

19      EUIPO does not dispute the merits of the applicant’s observations as regards the definition of the relevant public, but denies that they might have a bearing on that public’s level of attention when purchasing the goods covered by the mark applied for and by the earlier mark. As regards the comparison of the signs at issue, EUIPO reproduces the Board of Appeal’s grounds, elaborating on and adopting them.

20      Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

21      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. 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).

22      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).

 The relevant public

23      The Board of Appeal stated, in paragraph 13 of the contested decision, that, in the present case, the relevant public was the average consumer who was part of the general public and whose level of attention, taking into account that the goods at issue were for everyday use or consumption, was neither particularly high nor low.

24      The applicant submits that the Board of Appeal did not take into consideration the fact that Spanish Oranges and the applicant itself, as producers, do not sell their goods directly to end customers, but to intermediaries, such as retailers, supermarkets and so forth. It maintains that the Board of Appeal thus erred in focusing its analysis solely on the perception of the end consumer.

25      EUIPO states that the applicant’s argument as to the failure to take into account the nature and, consequently, the conduct of its customers and those of Spanish Oranges was not raised before the Opposition Division or before the Board of Appeal. It states that, consequently, the Board of Appeal could not have disregarded a matter which was not brought to its attention. As to the substance, EUIPO does not dispute that it is relevant to take intermediate customers into consideration, even where the goods are aimed at the general public. It states, however, that, according to the case-law, the perception of end consumers is decisive and that, where the relevant public consists both of professionals and non-professionals, the likelihood of confusion has to be assessed by reference to the section of the public with the lowest level of attention. It maintains that, consequently, the presence of professionals in the relevant public would only weaken the applicant’s argument seeking to establish that there is such a likelihood of confusion.

26      It must be stated that the Opposition Division had also found, in its decision of 30 January 2014, that the goods at issue were aimed at the general public and that, as EUIPO points out, that analysis was not disputed in the course of the proceedings before it. EUIPO does not, however, dispute that it is relevant to take intermediate customers into consideration, even where the goods are aimed at the general public. In that regard, it must be borne in mind that, according to well-established case-law, the perception of consumers or end users plays a decisive role because the whole aim of the commercialisation process is the purchase of the goods by those persons and the role of the intermediary consists as much in detecting and anticipating the demand for those goods as in increasing or directing it. Accordingly, the relevant classes of persons comprise principally consumers and end users. However, depending on the features of the product market concerned, the influence of intermediaries on decisions to purchase, and thus their perception of the trade mark, must also be taken into consideration (judgment of 29 April 2004, Björnekulla Fruktindustrier, C‑371/02, EU:C:2004:275, paragraphs 24 and 25). However, as EUIPO states, even if the definition of the relevant public could be regarded as incomplete, that would have no effect in the present case. According to the case-law, where the relevant public consists of consumers who are part of the general public and of professionals, the section of the public with the lowest level of attention must be taken into account (judgments of 15 July 2011, Ergo Versicherungsgruppe v OHIM — Société de développement et de recherche industrielle (ERGO Group), T‑221/09, not published, EU:T:2011:393, paragraph 21; of 29 April 2015, Chair Entertainment Group v OHIM — Libelle (SHADOW COMPLEX), T‑717/13, not published, EU:T:2015:242, paragraph 27, and of 30 September 2016, Flowil International Lighting v EUIPO — Lorimod Prod Com (Silvania Food), T‑430/15, not published, EU:T:2016:590, paragraph 19).

27      It follows that, in the present case, the Board of Appeal was right in finding that the level of attention of the relevant public to be taken into account was that of the average consumer who is part of the general public with regard to everyday purchases, that is to say a level of attention which is neither particularly high nor low.

 The comparison of the goods

28      The goods covered by the mark applied for are, first, preserved, frozen, dried and cooked fruits and vegetables in Class 29, and, secondly, oranges in Class 31. The Board of Appeal found, as the Opposition Division had done before it, that those goods and the goods covered by the earlier mark, which are listed in paragraph 7 above, were identical, which the parties do not, moreover, dispute. Bearing in mind that the earlier mark covers a broader spectrum than that of the goods covered by the mark applied for, for example inasmuch as it also relates to meat, fish, poultry and game, it is necessary to uphold the Board of Appeal’s decision and hold that the goods covered by the mark applied for and the corresponding goods covered by the earlier mark are identical.

 The comparison of the signs

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

30      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 (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all of 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 (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

31      The Board of Appeal, as has been stated in paragraph 11 above, pointed out the low degree of visual similarity and the lower than average degree of phonetic similarity between the signs at issue and pointed out that, depending on the linguistic knowledge of the average consumer, those signs conveyed a similar idea, coincided as regards the element ‘citrus’ for the part of the relevant public that exclusively understood the idea behind that term, or lacked any conceptual similarity. It found that, in the first two cases, the abovementioned ideas respectively described the type of goods at issue and the location in which they are obtained and identified the kind of goods at issue. The applicant disputes each of those assessments, which EUIPO maintains are well-founded. It is important to examine each of those criteria in turn.

–       As regards the visual comparison

32      The Board of Appeal relied on a number of differences regarding the graphic representations of the figurative elements in the signs at issue in order to conclude that there was a low degree of visual similarity. According to the Board of Appeal, the sign of which the mark applied for consists comprises, first, a black circular figure with a serrated edge, at the top of which the expression ‘mountain citrus’ appears in white capital letters and at the bottom of which the word ‘spain’ appears in the same font and the same colour of letters and, secondly, within that first circle, a smaller circle portraying a representation of mountains and fruit or vegetables in black and white. The sign of which the earlier mark consists comprises the term ‘monte’ written in green, lower-case letters followed by a semi-oval figure in orange with two green leaves above it and by the group of letters ‘itrus’ written in black with the same type of letters as the term ‘monte’. The Board of Appeal took the view that it was likely that the orange element in the earlier mark would be perceived as the letter ‘c’ due to its shape and position and also pointed out that the first words in each of the signs at issue have four letters in common, namely the letters ‘m’, ‘o’, ‘n’ and ‘t’ (paragraphs 21 and 22 of the contested decision). Relying on the case-law according to which the word element is not always the element which is dominant in a composite mark, since the figurative element may be of equal or even of greater importance than the word element (paragraph 19 of that decision), it found that, in the present case, in spite of the presence of letters which are common to both of the signs, the figurative element in each of the signs at issue was so different that only a low degree of visual similarity could be found to exist.

33      The applicant, which refers a number of times to the EUIPO Guidelines, observes that the signs at issue should be found to be similar visually ‘if they match in one, separately recognisable, element or have the same or a similar contour’. It maintains that that is the case here and that that element consists of the figurative representation of an orange. It takes the view that it is highly improbable that the relevant public will be faced with those signs simultaneously, on account of the fact that fruit is neither packaged nor labelled, and therefore concludes that there is some visual similarity between the signs at issue. It adds that, according to those guidelines, signs which have a significant number of letters in the same position in common are regarded as similar when they are not highly stylised or when they are stylised in the same or a similar manner. It submits that the use of different typefaces or colours does not preclude those signs from being similar. It maintains that the signs must be found to be similar in the present case because, first, the letters in the sign of which the mark applied for consists are not stylised and those in the sign corresponding to the earlier mark are also not stylised, with the exception, as regards the latter, of the letter ‘c’, representing an orange, and, secondly, the signs at issue have 10 letters in common, namely the groups of letters ‘mo’ and ‘nt’ and the word ‘citrus’. In the applicant’s submission, the presence of the word ‘spain’ will not, in view of the geographical origin of the goods covered by the mark applied for, attract the relevant public’s attention.

34      EUIPO disputes the applicant’s arguments.

35      A comparison of the signs reproduced in paragraphs 2 and 6 above shows that there are significant visual differences between those signs. First of all, whereas the sign of which the mark applied for consists is represented in black and white and is circular in shape, that of which the earlier mark consists is linear and has recourse to a chromatic palette using the colours green, orange and black. Moreover, two separate shades of the colour green are used. Secondly, the letters used are written in capital letters in the sign of which the mark applied for consists and in lower case letters in that of which the earlier mark consists. Lastly, the former sign includes three separate words, ‘mountain’, ‘citrus’ and ‘spain’, encircling a mountainous landscape in the foreground of which two round pieces of fruit, which can probably be perceived as being citrus fruit are placed, whereas the latter sign consists solely of a word element, the sixth letter of which, which is highly stylised and resembles a piece of orange, may, in actual fact, be understood as splitting that element into two words, ‘monte’ and ‘citrus’.

36      The Board of Appeal pointed out, in essence, as is apparent from paragraph 32 above and from paragraph 21 of the contested decision, all of those differences, both as regards the colours employed and the font used and as regards the decorative elements in the sign of which the mark applied for consists, whereas there are almost no decorative elements in the sign of which the earlier mark consists, with the exception of the stylised letter ‘c’ described in paragraph 35 above, which has no counterpart in the sign of which the mark applied for consists.

37      The Board of Appeal also noted, in paragraph 22 of the contested decision, the presence of letters which are common to the signs at issue, namely the initial letters ‘m’ and ‘o’ and the letters ‘n’ and ‘t’ in the first words in those signs, ‘mountain’ and ‘monte’, and also the group of letters ‘itrus’, but found that the differences summarised in paragraph 35 above were not negligible in the overall impression projected by those signs and, on the contrary, determined essentially the visual image perceived by the consumers. That assessment must be upheld.

38      As was pointed out by the Board of Appeal, the word element of a composite mark is not always that which must be considered to be dominant (judgments of 16 January 2008, Inter-Ikea v OHIM — Waibel (idea), T‑112/06, not published, EU:T:2008:10, paragraph 45, and of 12 September 2012, Duscholux Ibérica v OHIM — Duschprodukter i Skandinavien (duschy), T‑295/11, not published, EU:T:2012:420, paragraph 61).

39      In that regard, it must be stated that there are immediately perceptible visual differences between the signs at issue, because, as has already been pointed out in paragraph 36 above, there are almost no decorative elements in the earlier mark, in which only the letter ‘c’ is presented in a fanciful manner, whereas the sign of which the mark applied for consists is characterised strongly by its decorative elements, even though those elements are not highly original. The use of vivid colours, in the case of the sign of which the earlier mark consists, also contrasts strongly with the use of black and white in the case of the sign of which the mark applied for consists. The visual comparison of the fonts and letters, which is of use in establishing the differences and similarities between the signs at issue, also leads the Court to find that markedly different fonts are used, as was, moreover, correctly pointed out by the Board of Appeal in paragraph 21 of the contested decision. Lastly, those signs differ in the presence, in the sign of which the earlier mark consists, of the letter ‘c’, represented in orange, which is larger in size than the other letters and is embellished with two green ovals, symbolising two leaves, and, in the sign of which the mark applied for consists, of the word ‘spain’, which is not at all in the sign of which the earlier mark consists.

40      Consequently, the Board of Appeal did not make an error of assessment in observing, in the context of the visual comparison, that, in spite of the presence of some letters which are common to both signs, the importance of the figurative element in the sign of which the mark applied for consists, as well as the colour combination used as regards the sign of which the earlier mark consists create different visual impressions of the signs at issue. It was therefore fully entitled to conclude that there was a low degree of visual similarity between those signs.

–       As regards the phonetic comparison

41      The Board of Appeal observed that the signs at issue were different in length, in particular on account of the word ‘spain’ in the mark applied for, and that they were also differentiated by an ‘important aural difference’, on account of, first, the presence, at the beginning of the word ‘mountain’, of the letter ‘u’ and, secondly, their different endings (‘te’ and ‘tain’). It therefore found that there was a lower than average degree of similarity between them (paragraph 24 of the contested decision).

42      The applicant submits that the Board of Appeal’s assertion relating to the different pronunciations of the beginnings of the words ‘mountain’ and ‘monte’ is incorrect, at least with regard to the average Spanish- and Portuguese-speaking consumers. As regards the pronunciation of the endings of those two words, it observes, taking as its premise the principle that the word ‘mountain’ is part, as the Board of Appeal acknowledged, of basic English vocabulary, that the last syllable in each word, ‘te’ and ‘tain’, will be pronounced in a very similar way. Still from a phonetic standpoint, the applicant submits that the two signs are not different in length, contrary to what is apparent from a visual standpoint, first, on account of the practically non-existent difference between the pronunciation of the last syllable in the words ‘mountain’ and ‘monte’ and, secondly, on account of the fact that the word ‘spain’ will probably not be pronounced by the average consumer.

43      EUIPO disputes the applicant’s arguments.

44      First, it must be stated that the mark applied for consists of three words, namely ‘mountain’, ‘citrus’ and ‘spain’, whereas the earlier mark is one word element, which may be broken down into two words, namely ‘monte’ and ‘citrus’ (see paragraph 35 above). Consequently, as the Board of Appeal pointed out, the signs at issue are of a ‘different length’ (paragraph 24 of the contested decision).

45      Secondly, as regards the pronunciation of the first word in the signs at issue, ‘mountain’ in the mark applied for and ‘monte’ in the earlier mark, the Board of Appeal correctly found that those words would be pronounced differently. However, it must be pointed out that those words are nevertheless similar in sound both as regards their beginnings (‘moun’ and ‘mon’) and their endings (‘tain’ and ‘te’), on account of the importance of the letter ‘t’, in particular if the words are pronounced quickly and not that clearly by a non-English-speaking average consumer, whose English pronunciation is not necessarily perfect.

46      It is therefore necessary to qualify the Board of Appeal’s finding that, first, the letter ‘u’ is ‘clearly’ audible and creates an ‘important’ phonetic difference and, secondly, there is also a ‘clear’ phonetic difference between the syllables ‘tain’ and ‘te’ at the end of those words (paragraph 24 of the contested decision).

47      Thirdly, it must be stated that the signs at issue must, in actual fact, be regarded as having a word in common, namely ‘citrus’, because, as has been pointed out in paragraphs 35 and 44 above, the fanciful letter in the word sign of which the earlier mark consists will probably be identified as being a ‘c’, which EUIPO moreover admits in its written pleadings. That word will therefore naturally be pronounced in the same way as regards both of the signs. Consequently, the Board of Appeal erred in finding, in paragraph 24 of the contested decision, that that word ‘might also not be aurally reproduced in the same way as in the earlier [EU] mark because it cannot be excluded that the figurative element of this sign is not perceived as a “c”’, although it had previously correctly observed, in paragraph 21 of that decision, that it was likely that that element would be understood as being the letter ‘c’.

48      Fourthly, it must be pointed out that the mark applied for contains an additional word, namely ‘spain’, which is not in the earlier mark (paragraph 24 of the contested decision). However, it is doubtful whether the average consumer will pronounce that word, which is, in English, a very well-known name of a country (see, to that effect, judgment of 7 December 2011, El Corte Inglés v OHIM — Azzedine Alaïa (ALIA), T‑152/10, not published, EU:T:2011:715, paragraph 53), particularly because it is, in the present case, the word which comes last in the relatively long word element in the sign of which the mark applied for consists.

49      The Board of Appeal’s assessment that the degree of phonetic similarity between the signs at issue is lower than average must therefore be overturned and it must be held, on the grounds set out in paragraphs 44 to 48 above, that there is an average degree of phonetic similarity between those signs.

–       As regards the conceptual comparison

50      The Board of Appeal took the view that a part of the relevant public, depending on the languages of which it had a command, was able to understand the meaning of the words ‘mountain’ and ‘monte’ and could therefore carry out a conceptual comparison and deduce from that that those words ‘convey[ed] a similar concept, i.e. natural elevations from the earth surface of different height’ (paragraph 25 of the contested decision). That comparison seemed, to the Board of Appeal, to be capable of being undertaken by, for example, the Spanish consumer, because the word ‘monte’ exists in Spanish and the word ‘mountain’ is a basic English word. It also found that the word ‘citrus’ would be identified by most European consumers with ‘a genus of trees that includes citron, lemon, orange, lime and grapefruit’ (paragraph 27 of the contested decision). However, it stated that, for the average consumer who was only able to identify, on account of his linguistic abilities, the meaning of the term ‘citrus’ and, all the more so, for the average consumer who was able to understand the meaning of the words ‘mountain’, ‘monte’ and ‘citrus’, those concepts were descriptive of the type of goods concerned (citrus) and the geographical location where they are produced (elevated places) (paragraphs 26 and 27 of the contested decision). Consequently, in the Board of Appeal’s view, the conceptual aspect would not have a great impact on the global assessment of the likelihood of confusion. Lastly, the Board of Appeal stated that, for the average consumer who did not identify the meaning of any of those words, no conceptual comparison was possible (paragraph 28 of the contested decision).

51      According to the applicant, the Board of Appeal accepted that the words ‘mountain’ and ‘monte’, on the one hand, and ‘citrus’, on the other hand, convey similar concepts, but refused to draw the appropriate conclusions from those findings, by taking the view that those words were descriptive. It also submits that, according to the EUIPO Guidelines, when the same word is present in the signs at issue, the marks will be perceived as conceptually similar. It states that the words ‘mountain’ and ‘monte’ are not descriptive because the cultivation of the goods at issue takes place mainly in the plains. The applicant thus concludes that the signs at issue are conceptually identical.

52      EUIPO observes that it is probable that the part of the relevant public which understands Spanish or Portuguese, on the one hand, and English, on the other hand, will understand the words ‘monte’ and ‘mountain’ and that the image in the mark applied for will aid consumers who do not immediately perceive the meaning of the word ‘mountain’ to understand that word. However, it states that that word is, like the word ‘citrus’, descriptive. EUIPO maintains that, consequently, a comparison between the signs from a conceptual standpoint carries little weight in the overall assessment of the likelihood of confusion.

53      It must be stated, first of all, as observed by the Board of Appeal, that, as the word ‘mountain’ is part of basic English vocabulary, that word will be understood by a large part of even the non-English-speaking general public, which has a sufficient knowledge of English (see, to that effect, judgment of 15 September 2016, JT International v EUIPO — Habanos (PUSH), T‑633/15, not published, EU:T:2016:492, paragraph 40). Secondly, the Board of Appeal was also right in finding that the meaning of the word ‘monte’ would be known to a part of the relevant public. Furthermore, that finding applies not only to the average Spanish consumer, but also to consumers who are familiar with another Romance language, such as, for example, French, Italian, Portuguese or Romanian, and who will identify that word as referring to a high place with steep or not so steep slopes. Lastly, the Board of Appeal did not make an error of assessment in regarding the word ‘citrus’ as being capable of being understood by most of the relevant public as a generic term to designate citrus fruits.

54      The factors referred to in paragraph 53 above therefore show that there is a high degree of conceptual similarity between the signs at issue for a large part of the relevant public, with only the word ‘spain’, which is present in the mark applied for and is also part of everyday English, introducing a difference between those signs.

55      The Board of Appeal, however, found, in spite of that high degree of conceptual similarity, that the meaning of the words in question (‘mountain’ and ‘citrus’) was descriptive of the goods at issue and of the location in which they were cultivated, although such findings have no impact on the conceptual comparison of the signs at issue, but are part of the global assessment of the likelihood of confusion (see, to that effect, judgment of 21 March 2013, Event v OHIM — CBT Comunicación Multimedia (eventer EVENT MANAGEMENT SYSTEMS), T‑353/11, not published, EU:T:2013:147, paragraph 79).

56      By contrast, the Board of Appeal correctly pointed out, in paragraph 28 of the contested decision, that, with regard to the part of the relevant public that did not identify any concept in the signs in question, except that conveyed by the figurative elements of the mark applied for, there was no conceptual similarity.

57      It must therefore be held that, as regard the visual comparison, there is a low degree of similarity between the signs at issue, as regards the phonetic comparison, there is an average degree of similarity between them and, as regards the conceptual comparison, there is, depending on the linguistic knowledge of the relevant public, a high degree of similarity or a lack of any similarity between them.

 The likelihood of confusion

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

59      When assessing the signs at issue as a whole, the Board of Appeal acknowledged that the goods in Classes 29 and 31 were identical to those covered by the earlier mark. It found, however, that the relevant public would attach more importance to the visual aspect than to the phonetic and conceptual aspects of the signs at issue and that, as a result, although the contested goods were identical, the low degree of visual similarity between those signs was sufficient to exclude any likelihood of confusion, including the likelihood of association.

60      The applicant maintains that the principle of interdependence, which has been referred to in paragraphs 21 and 58 above, means, contrary to what the Board of Appeal decided, that even a low degree of similarity between the signs at issue may be offset by a high degree of similarity between the goods, which have, moreover, been acknowledged to be identical in the present case. It submits that, in the present case, irrespective of how the signs at issue are perceived by intermediaries, the Board of Appeal erred in finding that the visual aspect was preponderant because the goods covered by the mark applied for are generally neither labelled nor packaged in supermarkets and at retailers’ premises.

61      As regards the global assessment of the likelihood of confusion, EUIPO disputes the applicant’s arguments and adopts as its own the points set out by the Board of Appeal.

62      It must be borne in mind that, according to the case-law, in the global assessment of the likelihood of confusion, the visual, phonetic and conceptual aspects of the signs at issue do not always have the same weight and it is then appropriate to examine the objective conditions under which the marks may be present on the market (judgments of 6 October 2004, New Look v OHIM — Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection), T‑117/03 to T‑119/03 and T‑171/03, EU:T:2004:293, paragraph 49, and 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 103). In addition, the degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives visually the mark designating those goods (judgments of 21 February 2013, Esge v OHIM — De’Longhi Benelux (KMIX), T‑444/10, not published, EU:T:2013:89, paragraph 37, and of 16 December 2015, TRIDENT PURE, T‑491/13, not published, EU:T:2015:979, paragraph 103).

63      It has thus been found that food products in Classes 29 and 30 are normally purchased in supermarkets or similar establishments and are thus selected from the shelf by consumers directly, rather than being asked for orally. Similarly, in such establishments, consumers lose little time between successive purchases and often do not read all the information on the various products, letting themselves be guided more by the overall visual impression produced by the labels or packaging. In those circumstances, for the purposes of assessing whether there is a likelihood of confusion or a link between the signs in question, the result of the analysis of the visual similarity between those signs becomes of greater importance than the result of the analysis of their phonetic and conceptual similarities. Moreover, in that assessment, the figurative elements of a mark are deemed to play a more important role than its word elements from the relevant consumer’s point of view (judgment of 11 December 2014, Coca-Cola v OHIM — Mitico (Master), T‑480/12, EU:T:2014:1062, paragraph 50; see also, to that effect, judgments of 12 September 2007, Koipe v OHIM — Aceites del Sur (La Española), T‑363/04, EU:T:2007:264, paragraph 109, and of 2 December 2008, Ebro Puleva v OHIM — Berenguel (BRILLO’S), T‑275/07, not published, EU:T:2008:545, paragraph 24). It must be added that, as the Board of Appeal correctly found in paragraph 34 of the contested decision, it has not been proved that, for fresh fruit such as the oranges covered by the mark applied for, it is common for consumers to ask for a particular trade mark of oranges.

64      It is true that some of the goods concerned, like fresh fruits such as oranges, are sometimes displayed without packaging or labels, with the result that the average consumer is not always faced with the visual aspects of the signs at issue. However, first, those goods are often displayed in nets which have a label bearing the trade mark under which they are marketed. It is also not unusual for some fresh fruits to have a label directly affixed to them. Secondly, the mark applied for and the earlier mark cover many goods other than fresh fruits, such as preserved and dried goods, which are always displayed in packaging, on which the signs at issue are likely to appear.

65      Furthermore, as the Board of Appeal correctly pointed out, the conceptual similarity between the signs at issue does not have a great impact on the global assessment of the likelihood of confusion because the idea behind those signs is descriptive of some of the goods which they cover or of a characteristic of those goods. It is apparent from the case-law that, where some elements of a trade mark are descriptive of the goods and services in respect of which that mark is registered or the goods and services covered by the application for registration, those elements are recognised as having only a weak, or even very weak, distinctive character (judgment of 6 October 2015, Monster Energy v OHIM — Balaguer (icexpresso + energy coffee), T‑61/14, not published, EU:T:2015:750, paragraph 76; see also, to that effect, judgments of 12 September 2007, La Española, T‑363/04, EU:T:2007:264, paragraph 92, and of 13 December 2007, Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 52).

66      In the present case, the meaning of the words ‘mountain’ and ‘citrus’ is descriptive of some of the goods at issue and of the location in which they are cultivated. Even assuming that, as the applicant submits, the cultivation and production of the goods concerned does not necessarily take place in the mountains, the fact remains that the combination of the words ‘monte’ and ‘citrus’ or that of the words ‘mountain’ and ‘citrus’ might make a reasonably well informed, observant and circumspect average consumer, who is likely to have an average level of attention, think that they actually refer to some of the goods covered and the place in which they are cultivated or produced. Likewise, the word ‘spain’ is itself descriptive of the geographical origin of the goods and therefore has no significant impact on the relevant public’s perception of the signs at issue.

67      It follows from the foregoing considerations that the Board of Appeal was right in finding that the phonetic and conceptual aspects of the signs at issue would not hold the relevant public’s attention and that, consequently, the result of the analysis of the visual similarity between those signs would become of greater importance than the result of the analysis of their phonetic and conceptual similarities (see, to that effect, judgments of 20 June 2012, Kraft Foods Schweiz v OHIM — Compañía Nacional de Chocolates (CORONA), T‑357/10, not published, EU:T:2012:312, paragraph 41, and of 11 December 2014, Master, T‑480/12, EU:T:2014:1062, paragraph 50).

68      As regards, lastly, the argument relating to the perception of intermediaries, it must be pointed out that the applicant has not adduced any evidence in support of its assertion that, in the present case, the phonetic and conceptual aspects are of particular significance to those intermediaries. In any event, as is apparent from the case-law cited in paragraph 26 above, since the goods at issue are ultimately aimed at the general public, it is indeed the level of attention of that public that must be taken into account.

69      Consequently, in the light of the low degree of visual similarity between the signs at issue (see paragraph 40) above and the absence of any increased distinctive character of the earlier mark as a result of the use which has been made of it (see paragraph 11 above and paragraph 38 of the contested decision), the latter point being one which is not, moreover, disputed, the Board of Appeal was entitled to find that, in spite of the identity of the goods at issue, there was no likelihood of confusion between the marks at issue for the average consumer in the European Union.

70      Consequently, it must be held that the Board of Appeal did not infringe Article 8(1)(b) of Regulation No 207/2009.

71      In the light of all of the foregoing, the single plea in law must be rejected inasmuch as it seeks the partial annulment of the contested decision. Furthermore, the applicant’s second head of claim must be rejected as inadmissible, as has been held in paragraph 15 above.

 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      In the present case, since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Sociedad agraria de transformación No 9982 Montecitrus to pay the costs.


Tomljenović

Bieliūnas

Kornezov

Delivered in open court in Luxembourg on 16 March 2017.


E. Coulon

 

      V. Tomljenović

Registrar

 

      President


*      Language of the case: English.