JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
28 February 2024 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark IGISAN – Earlier EU word mark IGNISAN – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑164/23,
Drinks Prod SRL, established in Păntășești (Romania), represented by I. Speciac, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by I. Stoycheva and D. Gája, acting as Agents,
defendant,
the other parties to the proceedings before the Board of Appeal of EUIPO, interveners before the General Court, being
Siegfried Wolff, residing in Berlin (Germany),
Matthias Illg, residing in Berlin,
represented by R. Kunz-Hallstein, lawyer,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, U. Öberg and P. Zilgalvis (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Drinks Prod SRL, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 January 2023 (Case R 982/2022-2) (‘the contested decision’).
Background to the dispute
2 On 2 November 2020, the applicant filed an application for registration of an EU trade mark with EUIPO for the following figurative sign:
3 The mark applied for covered goods in, following the restriction made in the course of proceedings before EUIPO, Classes 3 and 5 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, corresponding, for each of those classes, to the following description:
– Class 3: ‘Dishwashing detergents; Non-medicated cosmetics and toiletry preparations; bubble bath preparations; Cleansers for household purposes; Solvents for removing varnishes; toiletries; Scented linen water; shaving preparations; Spirit gum remover; Heliotropin fragrancing compounds; Impregnated paper tissues for cleaning dishware; Dishwasher detergents; Bleaching preparations for laundry use; Degreasing preparations with a solvent base; skin care preparations; Scouring substances; bleaching preparations; Washing liquids; Toilet cleaning gels; toilet cleaners; Soaps for household use; Cloths impregnated with a detergent for cleaning; All-purpose cotton buds for personal use; shaving soap; Destainers; Hand cleansers; Saddle soap; Scouring solutions; Eyeglass wipes impregnated with a detergent; detergents; Natural oils for cleaning purposes; Bleaching preparations for household use; Degreasing preparations for engines; Polishing preparations; Drying agents for dishwashing machines; Impregnated cloths for polishing; Agents for removing wax; Impregnated tissues for cleaning [non-medicated, for use on the person]; Disposable wipes impregnated with cleansing compounds for use on the face; Liquid floor polishes; Spray cleaners for use on textiles; Lime removers; Cleaning sprays; Washing-up detergent; Floor wax; Stain removing benzine; Soaps and gels; hand washes; Ammonia for cleaning purposes; Cleaning solutions for dental ultrasonic sterilization apparatus; Colour-removing preparations; Sponges impregnated with toiletries; Soap powder; Spray cleaners for household use; Floor wax removers [scouring preparations]; Spray polish; Drain cleaning preparations; talcum powder; Cleaning fluids for camera lenses; skin cleansers; Foam detergents; Grease-removing preparations; Eyeglass lens cleaning solutions; Spray cleaners for freshening athletic mouth guards; Lavatory cleaning compositions; Liquid dishwasher detergents; Soap pads; Bar soap; Cleaning preparations; body washes; Hair and body wash; Scouring liquids; Natural floor polishes; Scented fabric refresher sprays; Solvents for removing paints; bleaching preparations and other substances for laundry use; Degreasing solvents, other than for use in manufacturing processes; Varnish-removing preparations; Alcoholic solvents being cleaning preparations; Caustic cleaning agents; Degreasing sprays; Washing preparations for personal use; Stain removers; Window cleaners in spray form; Dishwashing liquid; Face wipes; Oils for cleaning purposes; Moist wipes for sanitary and cosmetic purposes; Oil of turpentine for degreasing; non-medicated toilet preparations; dishwashing preparations; Abrasives; Carpet shampoo; Tissues impregnated with essential oils, for cosmetic use; Scrubbing powder; skin moisturisers; soaps; Starch for cleaning purposes; Household bleach; Shining preparations [polish]; perfuming preparations for the atmosphere; Vehicle cleaning preparations; Liquid soaps for hands and face; Cleaning fluids; Cleaning agents for household purposes; Lacquer-removing preparations; Household detergents; perfumery; laundry additives’;
– Class 5: ‘Hand-sanitizing preparations; Antibacterial sprays; medicated talcum powder; Germicidal preparations [other than soap]; Antibacterial clay preparations; Cleansing solutions for medical use; Antiseptic body care preparations; sanitising wipes; fungicides; germicides; Sterilizing preparations; Disinfectants for swimming pools; Disinfectants; Air sanitizing preparations; Antiseptics; Sterilising solutions; Bactericides; Medicated soap; Alcohol for pharmaceutical purposes; Sanitizing preparations for hospital use; materials for dressings; Washes (disinfectant -) [other than soap]; Antiseptic cleansers; Disinfectants for medical instruments; Sanitizing wash for fruit and vegetables; Sanitizing wipes; Antibacterial wipes; First-aid boxes, filled; Disinfectants for veterinary use; Disinfectants for medical use; Sanitizers for household use; Sterilising substances; Rubbing alcohol; First aid boxes sold filled; medicated plasters; Medicated toiletry preparations; Antimicrobial facewashes; Wipes for medical use; Hand-sanitising preparations; Alcohol swabs for medical purposes; Washes (Sterilizing -); Disinfectants impregnated into tissues; Disinfectants for medical apparatus and instruments; Antibacterial preparations; Air deodoriser sprays’.
4 On 11 February 2021, the interveners, Mr Siegfried Wolff and Mr Matthias Illg, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5 The opposition was based on the earlier word mark IGNISAN, which was filed on 20 July 2020 and registered on 23 December 2020 under No 18 274 680 designating goods in Classes 5 and 10 and corresponding, for each of those classes, to the following description:
– Class 5: ‘Pharmaceuticals, medical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic food and substances adapted for medical or veterinary use, food for babies; Dietary supplements for human beings and animals; Plasters, materials for dressings; Material for stopping teeth, dental wax; Disinfectants; Vermin destroying preparations; Fungicides, herbicides’;
– Class 10: ‘Surgical, medical, dental and veterinary apparatus and instruments; Artificial limbs, eyes and teeth; Orthopedic articles; Suture materials; Therapeutic and assistive devices adapted for persons with disabilities; Massage apparatus; Apparatus, devices and articles for nursing infants; Sexual activity apparatus, devices and articles’.
6 The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7 On 7 April 2022, the Opposition Division upheld the opposition in part on the basis of Article 8(1)(b) of Regulation 2017/1001.
8 On 6 June 2022, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9 By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision with the result that the Board of Appeal upholds the applicant’s appeal against the decision of the Opposition Division;
– order EUIPO to continue the registration proceedings for the mark applied for in respect of all the goods covered by the application for registration in Classes 3 and 5.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in the event that a hearing is scheduled.
12 The interveners claim that the Court should:
– dismiss the action;
– order the applicant to pay the costs of the proceedings.
Law
The Court’s jurisdiction to hear and determine certain heads of claim
13 By its second head of claim, the applicant asks the Court to order EUIPO to continue the procedure for registration of the mark applied for.
14 In that regard, it is sufficient to recall, similarly to EUIPO, that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue directions to the institutions, bodies, offices and agencies of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited; see also, to that effect, judgment of 25 September 2018, Sweden v Commission, T‑260/16, EU:T:2018:597, paragraph 104 and the case-law cited).
15 It follows that the applicant’s second head of claim must be rejected on the ground of lack of jurisdiction.
Substance
16 The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It puts forward three complaints based on, first, error of assessment regarding the level of attention of the relevant public; second, similarity of the signs in question and, third, error of assessment regarding the comparison of the goods in question.
17 EUIPO and the interveners submit that the Board of Appeal was correct to find that there was a likelihood of confusion in the present case.
18 Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. Furthermore, under Article 8(2)(a)(iv) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered under international arrangements which have effect in the European Union with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
19 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. 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).
20 For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, 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).
21 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
22 The present action must be examined in the light of those principles.
The relevant public
23 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 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).
24 In the present case, the Board of Appeal found that the relevant territory was that of the European Union in its entirety. It next stated that the relevant public for pharmaceutical preparations in Class 5 was made up of the general public and professionals, both with a high level of attention since the goods in question are goods concerning health. Moreover, regarding goods in Class 3, it found that the relevant public was the general public, with an at least average level of attention. It took into account, in order to assess whether there was a likelihood of confusion, the latter part of the public with the lowest level of attention, which is more prone to confusion.
25 The applicant claims that the level of attention of the relevant public is high because ‘disinfectants’ and ‘antiseptic products’ concern the state of health of consumers.
26 EUIPO and the interveners dispute the applicant’s arguments.
27 In the present case, it should be noted, as submitted by EUIPO, that that complaint is ineffective inasmuch as, although the Board of Appeal expressly considered the hypothesis of a high level of attention for goods in Class 5, which covers ‘disinfectants’ and ‘antiseptic products’, the rest of the goods concerned in Class 3 do not concern the field of health. What is more, although the applicant criticises implicitly the Board of Appeal for having based its finding on an incorrect level of attention, it does not dispute that the level of attention of consumers in respect of goods in Class 3 was at least average.
28 In that regard, the Court specifies that, as the Board of Appeal was fully entitled to state, where the relevant public is composed of consumer groups with different levels of attention, it is necessary, for the purposes of assessing the likelihood of confusion, to take into account the part of the public characterised by the lowest level of attention, in the present case that of the general public with an average level of attention (see, to that effect, judgment of 16 December 2020, Gustopharma Consumer Health v EUIPO – Helixor Heilmittel (HELIX ELIXIR), T‑883/19, not published, EU:T:2020:617, paragraph 32).
29 Consequently, the Board of Appeal was correct to find that the level of attention to take into account in the examination of the likelihood of confusion between the marks at issue was at least average.
The comparison of the goods and services
30 In assessing the similarity of the goods and services concerned all the relevant factors relating to those goods and services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
31 The Board of Appeal considered that the goods concerned were identical in part and similar in part to the goods covered by the earlier mark. It carried out a detailed comparison of the various goods concerned in Class 3 and part of the goods in Class 5, concluding, in essence, that they were similar in part to the ‘disinfectants’ and in part to the ‘sanitary preparations for medical purposes; plasters, materials for dressings’ covered by the earlier mark, on account of factors such as their nature, their intended purpose, their method of use, whether the goods are in competition with each other or are complementary, the usual origin of the goods, the distribution channels and the relevant public. As for the assessment of the remaining goods in Class 5 – which is, moreover, not disputed by the applicant – the Board of Appeal confirmed the approach of the Opposition Division, which found that they were identical to the goods covered by the earlier mark.
32 In the first place, the applicant disputes the similarity observed by the Board of Appeal between various goods concerned in Class 3 and the ‘disinfectants’ covered by the earlier mark on account of their different intended purpose in particular.
33 First, it disputes the similarity found in relation to ‘bubble bath preparations; shaving soap’, on the ground that they are cosmetic products the main purpose of which is to beautify the body rather than to kill bacteria, and that their intended purpose is therefore different from that of ‘disinfectants’.
34 Second, it disputes the similarity found regarding the ‘impregnated tissues for cleaning [non-medicated, for use on the person]’, ‘disposable wipes impregnated with cleansing compounds for use on the face’, ‘soaps and gels’, ‘hand washes’, ‘body washes’, ‘hair and body wash’, ‘washing preparations for personal use’, ‘face wipes’, ‘moist wipes for sanitary and cosmetic purposes’, ‘soaps’, ‘liquid soaps for hands and face’ and ‘skin cleansers’ designated by the mark applied for. It submits in that regard that the purpose of those goods is to wash, that is, to remove dirt or dust, rather than to disinfect.
35 Third, it calls into question the existence of similarity regarding the ‘dishwashing detergents’, ‘cleansers for household purposes’, ‘solvents for removing varnishes’, ‘scented linen water’, ‘spirit gum remover’, ‘heliotropin fragrancing compounds’, ‘impregnated paper tissues for cleaning dishware’, ‘dishwasher detergents’, ‘bleaching preparations for laundry use’, ‘degreasing preparations with a solvent base’, ‘bleaching preparations’, ‘washing liquids’, ‘toilet cleaning gels’, ‘toilet cleaners’, ‘soaps for household use’, ‘cloths impregnated with a detergent for cleaning’, ‘destainers’, ‘saddle soap’, ‘eyeglass wipes impregnated with a detergent’, ‘detergents’, ‘natural oils for cleaning purposes’, ‘bleaching preparations for household use’, ‘degreasing preparations for engines’, ‘drying agents for dishwashing machines’, ‘agents for removing wax’, ‘spray cleaners for use on textiles’, ‘lime removers’, ‘cleaning sprays’, ‘washing-up detergent’, ‘stain removing benzine’, ‘ammonia for cleaning purposes’, ‘cleaning solutions for dental ultrasonic sterilization apparatus’, ‘colour-removing preparations’, ‘soap powder’, ‘spray cleaners for household use’, ‘drain cleaning preparations’, ‘cleaning fluids for camera lenses’, ‘foam detergents’, ‘grease-removing preparations’, ‘eyeglass lens cleaning solutions’, ‘spray cleaners for freshening athletic mouth guards’, ‘lavatory cleaning compositions’, ‘liquid dishwasher detergents’, ‘soap pads’, ‘bar soap’, ‘cleaning preparations’, ‘scented fabric refresher sprays’, ‘solvents for removing paints’, ‘bleaching preparations and other substances for laundry use’, ‘degreasing solvents, other than for use in manufacturing processes’, ‘varnish-removing preparations’, ‘alcoholic solvents being cleaning preparations’, ‘caustic cleaning agents’, ‘degreasing sprays’, ‘stain removers’, ‘window cleaners in spray form’, ‘dishwashing liquid’, ‘oils for cleaning purposes’, ‘oil of turpentine for degreasing’, ‘dishwashing preparations’, ‘carpet shampoo’, ‘scrubbing powder’, ‘starch for cleaning purposes’, ‘household bleach’, ‘vehicle cleaning preparations’, ‘cleaning fluids’, ‘cleaning agents for household purposes’, ‘household detergents’, and ‘laundry additives’. According to the applicant, those goods do not, as a rule, contain chemical substances for killing germs and are therefore also different from ‘disinfectants’.
36 More specifically, the applicant highlights the clear differences between some of the goods cited in paragraph 35 above in relation to ‘disinfectants’ having regard to their intended purpose. Accordingly, it submits that the purpose of ‘heliotropin fragrancing compounds’ is to provide a certain fragrance, as is that of ‘scented linen water’, which, moreover, does not contain any cleansers, but rather essential oils or perfumes. In addition, the purpose of ‘spirit gum remover’ is to remove spirit gum, not to kill bacteria. Similarly, the purpose of ‘drying agents for dishwashing machines’ is to make dishes dry faster. Last, the purpose of ‘agents for removing wax’ is to remove wax and that of ‘colour-removing preparations’ is to remove colours from a surface, not to kill bacteria.
37 In the second place, the applicant challenges, first, the similarity found between ‘non-medicated cosmetics and toiletry preparations’, ‘toiletries’, ‘shaving preparations’, ‘skin care preparations’, ‘sponges impregnated with toiletries’, ‘talcum powder’, ‘non-medicated toilet preparations’, ‘tissues impregnated with essential oils, for cosmetic use’ and ‘skin moisturisers’, designated by the mark applied for and in Class 3, and the ‘pharmaceuticals, medical and veterinary preparations’ covered by the earlier mark. It submits that the goods referred to above covered by the earlier mark concern medicinal preparations only, while the goods covered by the mark applied for, in addition to being non-medicinal, are intended for skin care.
38 Second, the applicant challenges the similarity found between the ‘all-purpose cotton buds for personal use’ designated by the mark applied for and in Class 3 and the ‘sanitary preparations for medical purposes; plasters, materials for dressings’ designated by the earlier mark and in Class 5 on the ground that the former do not, as a rule, have a medical purpose, whilst the latter are defined by their medical purpose.
39 In the third place, regarding the goods covered by the mark applied for and in Class 5, the applicant challenges the similarity between the ‘first-aid boxes, filled’ and the ‘disinfectants’ covered by the earlier mark, on account of the fact that the former have a medical purpose when travelling or giving first aid, while ‘disinfectants’ are used only to kill bacteria.
40 EUIPO and the interveners dispute the applicant’s arguments.
41 In the present case, contrary to the applicant’s claim, the Board of Appeal was correct to find that there was an at least average similarity of the goods concerned by examining the various relevant factors, having regard to the considerations set out below.
The goods concerned in Class 3
42 First, regarding the ‘bubble bath preparations; shaving soap’, and ‘impregnated tissues for cleaning [non-medicated, for use on the person]’, ‘disposable wipes impregnated with cleansing compounds for use on the face’, ‘soaps and gels’, ‘hand washes’, ‘body washes’, ‘hair and body wash’, ‘washing preparations for personal use’, ‘face wipes’, ‘moist wipes for sanitary and cosmetic purposes’, ‘soaps’, ‘liquid soaps for hands and face’ and ‘skin cleansers’ covered by the mark applied for, the Board of Appeal was correct to find, in paragraph 27 of the contested decision, that those goods were similar to the ‘disinfectants’ covered by the earlier mark. Given that these are various preparations for washing and cleaning the face, body and hair, they have a purpose which, although not identical to that of ‘disinfectants’, is similar, that is, to clean, detoxify and eliminate microorganisms in order to prevent irritation or infection. Moreover, it should be noted, as did the Board of Appeal, that those goods may have the same manufacturers, distribution channels and relevant consumers.
43 Second, regarding the similarity found between ‘non-medicated cosmetics and toiletry preparations’, ‘toiletries’, ‘shaving preparations’, ‘skin care preparations’, ‘sponges impregnated with toiletries’, ‘talcum powder’, ‘non-medicated toilet preparations’, ‘tissues impregnated with essential oils, for cosmetic use’ and ‘skin moisturisers’, designated by the mark applied for, and ‘pharmaceuticals, medical and veterinary preparations’ covered by the earlier mark, the Court observes that all the goods referred to may be sold in pharmacies and therefore have the same distribution channels. Similarly, these are goods that may be manufactured by pharmaceutical companies, which is why they may also have the same producers. They are similar on account of the fact that they are complementary, since the cosmetic products may be used together with other pharmaceutical or medical preparations related to skin care. It follows that the Board of Appeal was correct to find that those goods were similar.
44 Third, the Court endorses the Board of Appeal’s finding in paragraph 29 of the contested decision regarding the similarity between the ‘disinfectants’ covered by the earlier mark and the ‘dishwashing detergents’, ‘cleansers for household purposes’, ‘solvents for removing varnishes’, ‘scented linen water’, ‘spirit gum remover’, ‘heliotropin fragrancing compounds’, ‘impregnated paper tissues for cleaning dishware’, ‘dishwasher detergents’, ‘bleaching preparations for laundry use’, ‘degreasing preparations with a solvent base’, ‘bleaching preparations’, ‘washing liquids’, ‘toilet cleaning gels’, ‘toilet cleaners’, ‘soaps for household use’, ‘cloths impregnated with a detergent for cleaning’, ‘destainers’, ‘saddle soap’, ‘eyeglass wipes impregnated with a detergent’, ‘detergents’, ‘natural oils for cleaning purposes’, ‘bleaching preparations for household use’, ‘degreasing preparations for engines’, ‘drying agents for dishwashing machines’, ‘agents for removing wax’, ‘spray cleaners for use on textiles’, ‘lime removers’, ‘cleaning sprays’, ‘washing-up detergent’, ‘stain removing benzine’, ‘ammonia for cleaning purposes’, ‘cleaning solutions for dental ultrasonic sterilization apparatus’, ‘colour-removing preparations’, ‘soap powder’, ‘spray cleaners for household use’, ‘drain cleaning preparations’, ‘cleaning fluids for camera lenses’, ‘foam detergents’, ‘grease-removing preparations’, ‘eyeglass lens cleaning solutions’, ‘spray cleaners for freshening athletic mouth guards’, ‘lavatory cleaning compositions’, ‘liquid dishwasher detergents’, ‘soap pads’, ‘bar soap’, ‘cleaning preparations’, ‘scented fabric refresher sprays’, ‘solvents for removing paints’, ‘bleaching preparations and other substances for laundry use’, ‘degreasing solvents, other than for use in manufacturing processes’, ‘varnish-removing preparations’, ‘alcoholic solvents being cleaning preparations’, ‘caustic cleaning agents’, ‘degreasing sprays’, ‘stain removers’, ‘window cleaners in spray form’, ‘dishwashing liquid’, ‘oils for cleaning purposes’, ‘oil of turpentine for degreasing’, ‘dishwashing preparations’, ‘carpet shampoo’, ‘scrubbing powder’, ‘starch for cleaning purposes’, ‘household bleach’, ‘vehicle cleaning preparations’, ‘cleaning fluids’, ‘cleaning agents for household purposes’, ‘household detergents’ and ‘laundry additives’ covered by the mark applied for. The purpose of those goods is to wash, bleach, clean or add fragrance and, contrary to the applicant’s claims, it cannot be said that those goods do not contain chemicals for killing germs, similarly to the ‘disinfectants’ covered by the earlier mark. Their use and intended purpose therefore overlap to a certain extent, given that all the goods referred to above are related to cleaning and hygiene. They may also have the same manufacturers and distribution channels and target the same public. As a result, similarity between them cannot be ruled out.
45 The same applies, more specifically, to ‘heliotropin fragrancing compounds’ and ‘scented linen water’, which, beyond the fact that they may contain antimicrobial agents which produce a similar result to that of ‘disinfectants’, are part of a category of goods intended for household cleaning and maintenance, share the same distribution channels and target the same relevant public. As for the ‘spirit gum remover’, ‘agents for removing wax’ and ‘colour-removing preparations’, while the objective purpose of those goods is, respectively, to remove spirit gum, wax or colour from surfaces, the fact remains that those goods are intended to remove a specific substance from a surface and their purpose is therefore to clean – this may be more specific than ‘disinfectants’, but nevertheless allows them also to be regarded as goods for household maintenance. They may therefore share distribution channels and target the same public. Moreover, ‘drying agents for dishwashing machines’ are cleaning and maintenance goods and share the same distribution channels as the ‘disinfectants’ covered by the earlier mark, in addition to the other factors listed in paragraph 42 above.
46 Last, ‘all-purpose cotton buds for personal use’ are goods that consist of one or two small wads of cotton wrapped around one or both ends of a short rod made of various materials. They are used, inter alia, for ear cleaning, first aid and applying cosmetics. Contrary to the applicant’s claim, those goods may, in some cases, have a medical purpose, such as, for example, when they are included in first aid kits. They therefore share several relevant factors with the ‘sanitary preparations for medical purposes; plasters, materials for dressings’ designated by the earlier mark and in Class 5. Moreover, those goods may also all share manufacturers, distribution channels and relevant public. They are therefore similar.
The goods concerned in Class 5
47 Regarding the similarity found in paragraph 32 of the contested decision between the ‘first-aid boxes, filled’ covered by the mark applied for and the ‘disinfectants’ covered by the earlier mark, the Court observes, as did the Board of Appeal, that those goods are similar on account of the fact that they are complementary, given that ‘first-aid boxes, filled’ often contain medical products including ‘disinfectants’. Those goods may therefore share manufacturers and distribution channels.
48 It follows from the foregoing that the goods designated by the mark applied for which have been contested by the applicant have at least an average degree of similarity in relation to the goods covered by the earlier mark.
The comparison of the signs
49 It is settled case-law that 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 (see, to that effect, judgment of 1 March 2016, BrandGroup v OHIM – Brauerei S. Riegele, Inh. Riegele (SPEZOOMIX), T‑557/14, not published, EU:T:2016:116, paragraph 29 and the case-law cited).
50 In that connection, 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).
51 In addition, 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. 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 (see judgment of 12 November 2008, Shaker v OHIM – Limiñana y Botella (Limoncello della Costiera Amalfitana shaker), T‑7/04, EU:T:2008:481, paragraph 40 and the case-law cited).
52 The earlier mark is a word mark consisting of the single word element ‘ignisan’.
53 The mark applied for is a figurative mark consisting of the word element ‘igisan’ written in upper-case letters in a standard blue typeface. That word element appears before a figurative element consisting of a white ‘+’ symbol placed within a red circular background. Those two elements are situated within a light blue oval surround.
Visual comparison
54 The Board of Appeal considered that the signs in question had an average degree of visual similarity on account of the identical presence of six letters appearing in the same order. In essence, it found that the visual impact of the differences between those signs, that is, the additional letter ‘n’ in the earlier mark or the figurative elements in the mark applied for, were not sufficient to outweigh the similarity created by the coincidence of the word elements of those marks, resulting in an overall impression of visual similarity.
55 The applicant submits that, when comparing a figurative mark and a word mark, those marks must be regarded as visually different, particularly when the figurative mark contains a highly stylised word element. The same applies to the differences resulting from the figurative elements, that is, the highly stylised depiction of the word element of the mark applied for, indicating the absence of the letter ‘n’ and the presence of the sign ‘+’ in white on a red circular background, which is, according to the applicant, dominant within the mark applied for.
56 EUIPO and the interveners dispute the applicant’s arguments.
57 In the present case, the Court observes that the word elements ‘ignisan’ and ‘igisan’ in the marks in question share six letters in the same order. They differ by the letter ‘n’, contained in the earlier mark alone, and by the figurative elements of the mark applied for, that is, the white figurative element ‘+’ on a red circular background, the stylised typeface in blended shades of blue and the oval surround incorporating all the elements that make up the mark.
58 First of all, it is apparent from paragraph 44 of the contested decision that the symbol ‘+’ in the mark applied for has a low degree of distinctiveness, given that it may be laudatory, indicating an increase in the quality or quantity of the goods, or may allude to some of the goods in question for the part of the public which may interpret it as a white cross associated with health or medicine. As a result, that public’s ability to distinguish the mark applied for from the earlier mark is also limited. In addition, that symbol is smaller than the word element ‘igisan’, meaning that it will not attract greater attention than the word element. The symbol ‘+’ cannot therefore be regarded as dominant within the mark applied for.
59 Regarding the other figurative elements in the mark applied for, aside from the fact that they are merely decorative and are therefore not distinctive, it must be borne in mind that where a trade mark is composed of verbal and figurative elements, the former should, in principle, be considered more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (see, to that effect, judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37). In the present case, there is no reason to depart from that case-law and the consequence flowing therefrom, that is, that the word elements of the signs in question are the most distinctive for the purpose of their comparison.
60 It follows that, despite the additional letter ‘n’ in the earlier mark and the figurative elements in the mark applied for, the presence of the six identical letters in the same order in the marks in question is liable to have a greater impact on the perception of consumers and outweighs their visual differences.
61 The Board of Appeal was therefore correct to find that the signs in question had an average degree of visual similarity.
Phonetic comparison
62 The Board of Appeal considered that the marks in question had an average degree of phonetic similarity given that the pronunciation of their respective word elements coincides in the sound of all the letters save for the letter ‘n’ in the earlier mark. It also found that the impact of the differences resulting from the pronunciation of the symbol ‘+’ by part of the relevant public, if pronounced, remains limited, given that that symbol has a low degree of distinctiveness or is not distinctive.
63 The applicant argues that the marks differ phonetically given that the first syllable of the mark applied for ‘i’ is different and is pronounced differently from that of the earlier mark ‘ig’.
64 EUIPO and the interveners dispute the applicant’s arguments.
65 In the present case, the word elements of the marks in question have the six identical letters in the same order and coincide in the number of syllables (three), that is, ‘i’, ‘gi’ and ‘san’ and ‘ig’, ‘ni’ and ‘san’, and in the pronunciation of all the letters save for the letter ‘n’, which does not entail a significant phonetic impact outweighing the similarities found. The Board of Appeal was therefore correct to find that the signs at issue had an average degree of phonetic similarity.
Conceptual comparison
66 The Board of Appeal considered that the word elements of the marks in question did not convey any meaning for the public in the relevant territory. It found that the only conceptual difference between the signs stemmed from the figurative element ‘+’ of the mark applied for, which did not have a high conceptual impact given the reduced weight attributed to it due to its low degree of distinctiveness.
67 The applicant submits that the marks in question differ conceptually, given that the word element ‘ignisan’ of the earlier mark has no meaning, while the term ‘igisan’ making up the mark applied for refers to the concepts of hygiene and well-being, as shown by the fact that the group of letters ‘igi’ constitutes the initial part of the term ‘hygiene’ in 18 EU languages.
68 EUIPO disputes the applicant’s arguments.
69 The interveners do not raise any arguments in that connection.
70 In the present case, it must first be observed that it is common ground that the terms making up the marks in question have no clear meaning in any of the EU languages. Accordingly, as the Board of Appeal was correct to find, it is probable that a non-negligible part of the relevant public will not understand the meaning of any of the word elements of the marks in question. In those circumstances, the terms ‘ignisan’ and ‘igisan’ would therefore be understood in their entirety as being fanciful terms with no more conceptual meaning for that part of the relevant public than the other secondary figurative elements in the mark applied for. It follows that, for that part of the public, the comparison is neutral.
71 Moreover, it is possible, as argued by the applicant, that another part of the relevant public may split the mark applied for into two parts, subsequently identifying the word element ‘igi’ as referring to the concept of hygiene, particularly as regards the public in the countries in which the spelling of the term ‘hygiene’ begins with the group of letters ‘igi’, such as Italy (igiene), Slovakia (igiena) or Croatia (igiena).
72 However, as stated by the Board of Appeal in paragraph 43 of the contested decision, a significant part of the relevant public will perceive the word elements ‘ignisan’ of the earlier mark and ‘igisan’ of the mark applied for as having no meaning. That part of the public is more likely to confuse the signs due to the absence of any differences in meaning.
73 In that connection, according to the case-law, a finding that there is a likelihood of confusion for a non-negligible part of the relevant public is sufficient to uphold an opposition brought against an application for registration of a mark (see judgment of 20 November 2017, Stada Arzneimittel v EUIPO – Urgo recherche innovation et développement (Immunostad), T‑403/16, not published, EU:T:2017:824, paragraph 50 and the case-law cited). Despite the resemblance or allusion to the term ‘hygiene’ that the group of letters ‘igi’ may have for part of the relevant public, the applicant has not provided any evidence to show that a non-negligible part of the relevant public would be likely to perceive the term ‘igisan’ of the mark applied for as referring to the concept of hygiene.
74 It is apparent from the foregoing that the conceptual comparison of the signs at issue must be regarded as neutral in respect of the relevant public as a whole.
The distinctiveness of the earlier mark
75 In paragraphs 53 and 54 of the contested decision, the Board of Appeal found that, from the relevant public’s perspective, the earlier mark enjoyed an average degree of inherent distinctiveness in respect of the goods it designates.
76 That finding, which is, moreover, not disputed by the applicant, is correct and must be confirmed.
The global assessment of the likelihood of confusion
77 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).
78 In paragraph 57 of the contested decision, the Board of Appeal recalled that (i) the relevant public was made up of the general public and business consumers and that its level of attention varied between average and high, (ii) the goods in question were similar or identical, (iii) the signs had an average degree of similarity overall and (iv) the earlier mark had an average degree of inherent distinctiveness. That being said, it considered, in paragraphs 56 and 61 to 63 of the contested decision, that, in order to make a finding of a likelihood of confusion, it is sufficient that a non-negligible part of the relevant public is liable to confuse the commercial origin of the goods or services in question and, moreover, that pursuant to the principle of interdependence of all the factors referred to above and given that, even within a section of the public with a high level of attention, the average consumer will only rarely have the chance to make a direct comparison between different marks and therefore must trust their imperfect recollection of them, there could be, in the present case, a likelihood of confusion, including a likelihood of association, on the part of the relevant public, for the purposes of Article 8(1)(b) of Regulation 2017/1001.
79 The applicant argues that, in the light of the absence of similarity between the signs of the marks in question and between the goods concerned, there can be no finding of a likelihood of confusion in the present case.
80 EUIPO does not raise any arguments in that connection.
81 The interveners dispute the applicant’s submissions.
82 In the present case, the applicant merely repeats its conclusion that there is no similarity between the marks in question in respect of the goods they designate and the depiction of their respective signs. The applicant does not therefore put forward any new argument capable of calling into question the Board of Appeal’s finding as to the existence of a likelihood of confusion.
83 However, the Board of Appeal, having regard to the foregoing, was correct to infer that there is a likelihood of confusion in the light of the interdependence of the factors to be taken into account. Accordingly, the identity and similarity of the goods concerned and the average degree of visual and phonetic similarity of the signs in question, the conceptual comparison being neutral, do not make it possible to rule out that the relevant public, with an average level of attention, might believe that the goods or services in question come from the same undertaking or, as the case may be, economically linked undertakings.
84 In the light of all the foregoing considerations, since the single plea in law relied on by the applicant in support of its claims must be rejected, the action must be dismissed in its entirety.
Costs
85 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.
86 In the present case, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that an oral hearing is scheduled. The interveners have applied for the applicant to be ordered to pay the costs they have incurred in the context of the present proceedings before the Court.
87 Since the applicant has been unsuccessful, it must be ordered to pay the costs relating to the present proceedings before the Court incurred by the interveners, in accordance with the form of order sought by the interveners.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Drinks Prod SRL to bear its own costs and to pay those incurred by Mr Siegfried Wolff and Mr Matthias Illg.
Delivered in open court in Luxembourg on 28 February 2024.
V. Di Bucci | | M. van der Woude |