JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 September 2023 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark LΛΛVΛ – Earlier EU figurative marks LAV and Lav – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Right to be heard – Article 94(1), second sentence, of Regulation 2017/1001)
In Case T‑473/22,
Gürok Turizm ve Madencilik Anonim Sirketi, established in Kütahya (Türkiye), represented by M. López Camba and A. Lyubomirova Geleva, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
the other parties to the proceedings before the Board of Appeal of EUIPO being:
Gábor Darvas, residing in Budapest (Hungary),
Dorina Pap, residing in Kiskunhalas (Hungary),
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva and E. Tichy‑Fisslberger (Rapporteur), Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 26 April 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Gürok Turizm ve Madencilik Anonim Sirketi, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 May 2022 (Case R 1745/2021-2) (‘the contested decision’).
Background to the dispute
2 On 12 March 2020, Mr Gábor Darvas and Ms Dorina Pap (‘the trade mark applicants’) filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3 The mark applied for covers goods in, inter alia, following the restriction made in the course of the proceedings before EUIPO, Class 21 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 to the following description: ‘Glass bottles containing mineral stones’.
4 On 23 June 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of, inter alia, the goods referred to in paragraph 3 above.
5 The opposition was based on the earlier EU figurative marks reproduced below, each of which covers, inter alia, goods in Class 21 corresponding to the following description: ‘Household or kitchen utensils and containers; combs and sponges; brushes (except paint brushes); brush-making materials; steelwool; unworked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes; dishes, jars, cookie jars, glasses, cups, trays, egg cups, coffee cups, saucepans, carafes, cake molds, teapots, tableware (other than knives, forks and spoons) made of glass and porcelain, namely, bowls, mugs, plates, salt and pepper shakers, gravy boats, jugs and vases; statuettes, statues and works of art of glass and porcelain’:
6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7 On 12 August 2021, the Opposition Division rejected the opposition.
8 On 8 October 2021, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
9 By the contested decision, the Board of Appeal dismissed the appeal. In particular, it found, first, that the goods at issue were identical, since the goods covered by the mark applied for were included in the broader category of ‘glassware’ in respect of which the earlier marks were registered (paragraph 21 of the contested decision), secondly, that the relevant public consisted of the general public and professional consumers in the European Union in its entirety, the level of attention of which was higher than average (paragraphs 24 to 27 of the contested decision), thirdly, that the inherent distinctiveness of the earlier marks was average (paragraph 32 of the contested decision), fourthly, that the word element of the mark applied for was perceived by the relevant public as an unusual combination of Latin and Greek letters (paragraphs 34 and 35 of the contested decision), fifthly, that there was, at most, a low degree of visual similarity between the signs at issue, even for the part of the relevant public which might be led to perceive the Greek capital letter ‘Λ’, or lambda, as the Latin capital letter ‘A’ (paragraphs 35 and 36 of the contested decision), sixthly, that the signs at issue were, at most, phonetically similar to a low degree (paragraphs 37 and 38 of the contested decision), seventhly, that a conceptual comparison of those signs was either impossible or would lead to a finding of dissimilarity (paragraph 39 of the contested decision) and, eighthly, that, overall, there was no likelihood of confusion between the marks at issue (paragraphs 44 and 45 of the contested decision).
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO and the trade mark applicants to pay the costs of the proceedings before the Court.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened.
Law
12 The applicant relies on two pleas in law, alleging, first, infringement of the right to be heard, according to the second sentence of Article 94(1) of Regulation 2017/1001, and, secondly, infringement of Article 8(1)(b) of Regulation 2017/1001.
13 In the present case, it is appropriate to examine the second plea first.
The second plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
14 By its second plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, the applicant submits that the Board of Appeal erred in denying that there was a likelihood of confusion between the marks at issue.
15 EUIPO disputes the applicant’s arguments.
16 Article 8(1)(b) of Regulation 2017/1001 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, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
17 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).
18 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).
19 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, as the applicant correctly submits, 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).
The relevant public
20 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).
21 In the present case, the Board of Appeal found, in paragraphs 24 to 27 of the contested decision, that the relevant public was that of the European Union in its entirety and that the ‘glass bottles containing mineral stones’ in Class 21, in respect of which the trade mark applicants had sought registration of the mark applied for, were aimed both at the general public and at professional consumers, namely retailers who offered goods of that kind in their design or gift shops. According to the Board of Appeal, given that the specification of the goods covered by the mark applied for mentioned ‘mineral stones’ as opposed to ordinary stones and that those stones could be precious or semi-precious, it was to be reasonably expected that those goods were more expensive than ordinary glass bottles. Furthermore, it stated that they were not goods which were purchased on a daily basis but, rather, occasionally, for long-term use. For that reason, as well as because of the high price and the presence of mineral stones in the bottle, including precious and semi-precious stones, it found that, not only professional consumers, but also those who were part of the general public, would display a higher than average level of attention when purchasing those goods.
22 The applicant criticises that assessment on the part of the Board of Appeal and submits that the reasoning set out by the Board of Appeal in the contested decision is contradictory. It contends that the Board of Appeal, on the one hand, acknowledged that the goods at issue had to be compared by referring to the wording of the specification, and not to the specific goods which the parties claimed to be offering on the market, but, on the other hand, took into account only one variant of ‘glass bottles containing mineral stones’, whereas, in actual fact, mineral stones are not necessarily precious and semi-precious stones and ‘glass bottles containing mineral stones’ are not necessarily expensive. According to the applicant, the goods covered by the mark applied for also encompass simple and inexpensive goods which are aimed at general consumers whose level of attention must be deemed to be average.
23 EUIPO disputes the applicant’s arguments.
24 The relevant public for the purposes of the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for. Thus, as a general rule, when goods or services covered by one of the marks at issue are included in the broader designation covered by the other mark, the relevant public is defined by reference to the more specific wording (see judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraphs 38 and 39 and the case-law cited).
25 In the present case, since the ‘glass bottles containing mineral stones’ in Class 21, in respect of which the trade mark applicants have sought registration of the mark applied for, are included in the broader category formed by the ‘glassware not included in other classes’ in Class 21, in respect of which the earlier marks are, inter alia, registered, it is necessary to identify the relevant public with regard to the former goods and that public’s level of attention.
26 It is true that the Board of Appeal correctly pointed out that ‘glass bottles containing mineral stones’ were included in the broader category of ‘glassware not included in other classes’, with the result that the goods at issue are identical (paragraph 21 of the contested decision) and that, consequently, those goods overlap (paragraph 24 of the contested decision). However, after stating, in paragraph 26 of the contested decision, that the specification of those goods covered by the mark applied for mentioned mineral stones as opposed to ordinary stones and after adding that those mineral stones could be precious or semi-precious, the Board of Appeal concluded that ‘it [wa]s to be reasonably expected that the … goods [covered by the mark applied for we]re more expensive than ordinary glass bottles’, without, however, explaining why and to what extent the comparison of the price level of ‘glass bottles containing mineral stones’ with that of ‘ordinary glass bottles’ was relevant with regard to the definition of the relevant public in respect of ‘glass bottles containing mineral stones’ and that public’s level of attention.
27 Furthermore, although it is true, as the Board of Appeal explained in paragraph 26 of the contested decision, that the mineral stones contained in the glass bottles in question could be precious or semi-precious, the fact remains that the applicant is right in claiming that those mineral stones are not necessarily precious or semi-precious stones.
28 The argument put forward by EUIPO, namely that the Board of Appeal deduced a higher than average level of attention principally from the fact that the goods covered by the mark applied for contain mineral stones as opposed to ordinary stones, also does not make it possible to conclude that mineral stones are generally relatively expensive, which would make those goods relatively expensive.
29 Consequently, the Board of Appeal was not justified in finding, on the basis of the arguments which it set out in the contested decision, that ‘glass bottles containing mineral stones’ were relatively expensive and that they were sold at high prices.
30 However, even though it cannot therefore be held that the prices of the goods covered by the mark applied for are relatively high, the Board of Appeal was right in stating, in paragraph 26 of the contested decision, that ‘glass bottles containing mineral stones’ were not goods which were purchased on a daily basis, but, rather, occasionally, which the applicant, in essence, acknowledges. As EUIPO correctly submits, those goods are rather specific and are often used for decorative purposes or to obtain certain positive effects which one might be led to attribute to the mineral stones that they contain. Accordingly, the applicant is wrong in claiming that the purchase of such goods may be commonplace. On the contrary, it is in fact true that a person who purchases such goods will be particularly attentive when making his or her purchase, notwithstanding that that purchase may be easy or inexpensive.
31 In so far as the applicant referred, at the hearing, to the judgment of 14 January 2016, The Cookware Company v OHIM – Fissler (VITA+VERDE) (T‑535/14, not published, EU:T:2016:2, paragraph 29), in order to support its view that the relevant public will display only an average level of attention when purchasing the goods covered by the mark applied for, it is sufficient to point out that that judgment concerned ‘household or kitchen utensils’ without any specific content, whereas, in the present case, what is at issue are ‘glass bottles’ specifically containing ‘mineral stones’.
32 It follows that, even though ‘glass bottles containing mineral stones’ are not necessarily expensive, not only professional consumers but also the general public will, just as the Board of Appeal found in the present case, display a higher than average level of attention when purchasing those goods.
33 Lastly, the Board of Appeal was also right in finding, in paragraph 27 of the contested decision, that, since the earlier marks are EU trade marks, the relevant territory in the present case is that of the European Union in its entirety, a finding which the applicant does not dispute.
The comparison of the goods
34 In paragraph 21 of the contested decision, the Board of Appeal correctly found that the ‘glass bottles containing mineral stones’ in Class 21, in respect of which the trade mark applicants had sought registration of the mark applied for, were included in the broader category of ‘glassware not included in other classes’ in that class, in respect of which the earlier marks had, inter alia, been registered, and that the goods at issue were therefore identical, a finding which the parties do not dispute.
The comparison of the signs
35 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).
36 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 the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
37 Before examining the three aspects of similarity as regards the signs at issue, the Board of Appeal pointed out, inter alia, in paragraph 34 of the contested decision, that the word element of the sign applied for did not actually contain the stylised capital letter ‘A’ of the Latin alphabet and that, contrary to what the Opposition Division had found, that word element was not therefore to be referred to as ‘laava’. According to the Board of Appeal, that word element consists of a combination of Latin and Greek letters, namely the Latin capital letter ‘L’, followed by the Greek capital letter ‘Λ’, or lambda, which appears twice, followed by the Latin capital letter ‘V’ and then again by the Greek capital letter ‘Λ’, or lambda.
38 The applicant criticises that assessment on the part of the Board of Appeal and submits that the sign applied for does indeed consist of the expression ‘laava’, represented in stylised characters, with each ‘A’ being represented by an inverted ‘V’. It maintains, in essence, that the relevant public in the greatest part of the European Union outside of Greece and Cyprus does not know the Greek alphabet. According to the applicant, the symbol ‘Λ’ will not be perceived as the Greek capital letter lambda in the greatest part of the European Union, but rather as the Latin capital letter ‘A’ in a stylised form. It contends that the trade mark applicants have thus always referred to the mark applied for as ‘laava’.
39 EUIPO disputes the applicant’s arguments. It submits that Greek letters are often used in mathematics, science and engineering. It argues that, consequently, it is reasonable for the Greek capital letter lambda to be understood by a significant part of the public in the European Union. EUIPO takes the view that, in the contested decision, the Board of Appeal took into account both the possibility that the symbol ‘Λ’ would be perceived by the relevant public as the Greek capital letter lambda and the possibility that that public would perceive it as a stylised representation of the Latin capital letter ‘A’ and concluded that a sufficient degree of similarity was lacking in each of those cases. It submits that the applicant’s argument is therefore ineffective.
40 It is true that the symbol ‘Λ’, which is contained three times in the word element of the mark applied for, does indeed correspond to the Greek capital letter lambda and that it will be understood in that way by the part of the relevant public which speaks Greek. However, it has already been held that most consumers in the European Union do not know the Greek alphabet and that only a category of erudite consumers knows it (judgment of 10 June 2009, Vivartia v OHIM – Kraft Foods Schweiz (milko ΔΕΛΤΑ), T‑204/06, not published, EU:T:2009:185, paragraph 43).
41 Furthermore, although it is true that letters from the Greek alphabet are often used in mathematics, science and engineering, as EUIPO submits, it cannot, however, be deduced from that that the relevant public throughout the European Union, which also includes consumers who are part of the general public (see paragraph 21 above), knows the meaning of all the letters of the Greek alphabet, irrespective of whether they are capital or small letters. As regards the Greek capital letter lambda, or ‘Λ’, it must be stated that that letter is precisely not used with regard to a designation which is such that it could be considered to be commonplace.
42 It follows that the Board of Appeal made an error of assessment in finding, in essence, that the whole of the relevant public (and not only the part which speaks Greek) will perceive the symbol ‘Λ’ contained in the word element of the mark applied for as the Greek capital letter lambda.
43 As the applicant rightly submits, in the light of the presence of the Latin capital letters ‘L’ and ‘V’ in the word element of the mark applied for, the part of the relevant public which does not speak Greek will perceive that symbol as the Latin capital letter ‘A’ in a stylised form, given that the only difference between that symbol and that letter consists of the presence of a crossbar, or horizontal stroke, in the latter which does not appear in that symbol.
44 Moreover, it is also that perception of the symbol ‘Λ’ which the trade mark applicants seem to have had in mind at the time when they filed the application for registration and thereafter. In the application form, they described the word element of the mark applied for as ‘laava’. Furthermore, as the applicant has pointed out, the trade mark applicants use the term ‘laava’ to refer to the address of their website and to refer to ‘glass bottles containing mineral stones’ which they sell.
45 As EUIPO correctly submits, that error on the part of the Board of Appeal does not, however, entail the annulment of the contested decision, because the Board of Appeal also took into account the possibility that the symbol ‘Λ’ would be perceived by the relevant public as a stylised representation of the Latin capital letter ‘A’ and correctly concluded that a sufficient degree of similarity was also lacking in that case.
46 Since 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 paragraph 19 above), it is necessary to ascertain whether the Board of Appeal rightly found that there was no likelihood of confusion on the part of the section of the relevant public which does not speak Greek and will perceive the symbol ‘Λ’ as a stylised representation of the Latin capital letter ‘A’.
– The visual similarity
47 In paragraphs 35 and 36 of the contested decision, the Board of Appeal observed that the signs at issue were only slightly stylised and that that stylisation did not therefore contribute significantly towards the overall impression which they created. However, it drew attention to the upper part of the capital letter ‘A’ in the first earlier mark, which is represented partly in pink. According to the Board of Appeal, the relevant public would notice the combination, which was, in its view, unusual, of Greek and Latin letters in the sign applied for. It took the view that confusion between the Greek capital letter ‘Λ’ and the Latin capital letter ‘A’, potentially owing to a lack of familiarity with the Greek alphabet, would amount to sheer speculation. According to the Board of Appeal, it was plainly apparent that ‘Λ’ was not the same thing as ‘A’, including from the perspective of the part of the relevant public which did not know the Greek alphabet. In the Board of Appeal’s view, even if it were to be accepted that part of the relevant public would actually mistake the symbol ‘Λ’ for the letter ‘A’, there would still be several significant differences between the signs. The Board of Appeal pointed out, in particular, first, that the length of the word elements of the signs at issue was different, which was particularly relevant in the light of the fact that the earlier signs were short and, secondly, that the part of the relevant public which did not recognise the Greek capital letter lambda would notice that the element ‘Λ’ looked like the inverted Latin capital letter ‘V’, while the letter between the elements ‘Λ’ in the word element of the sign applied for was precisely a ‘V’. It found that, overall, there was therefore, at most, a low degree of visual similarity between the signs at issue.
48 The applicant disputes that assessment on the part of the Board of Appeal and submits that the signs at issue are visually similar to a high degree. It observes that the signs coincide in the sequence of letters ‘l’, ‘a’ and ‘v’ at the beginning of those signs, which, it submits, has a considerable influence, and that they differ in the third and in the last letter, ‘a’, of the sign applied for. However, it argues that that threefold repetition of the letter ‘a’ has only a limited impact. Furthermore, it contends that the font used in the mark applied for reproduces in part the font of the first earlier mark.
49 EUIPO disputes the applicant’s arguments.
50 In the present case, it is true that, as is pointed out by the applicant, the sequence of letters ‘l’, ‘a’ and ‘v’ constitutes the initial part of the earlier marks, as is the case with the sequence of capital letters ‘L’, ‘Λ’, ‘Λ’ and ‘V’ in the mark applied for. According to the case-law, that initial part of the marks may indeed be capable of attracting the attention of the relevant public more than the following parts. However, as the Board of Appeal also pointed out in paragraph 43 of the contested decision, that consideration cannot apply in every case and cannot, in any event, call into question the principle that the assessment of the similarity of the signs must take account of the overall impression which they create (see judgment of 10 March 2016, credentis v OHIM – Aldi Karlslunde (Curodont), T‑53/15, not published, EU:T:2016:136, paragraph 35 and the case-law cited).
51 Accordingly, as the Board of Appeal also pointed out, in essence, in paragraph 36 of the contested decision, it is apparent from the case-law that the shorter the sign, the better the public is able to perceive the differences between the signs at issue, such differences being capable of leading to different overall impressions (see judgment of 28 September 2016, The Art Company B & S v EUIPO – G-Star Raw (THE ART OF RAW), T‑593/15, not published, EU:T:2016:572, paragraph 28 and the case-law cited). Given that the earlier signs are short signs consisting of three letters each, the relevant public is therefore able to perceive the differences between them and the sign applied for, including in so far as those differences stem rather from the final part of the signs at issue. As the Board of Appeal and EUIPO correctly stated, the word element of the sign applied for is noticeably longer than the earlier marks, almost twice as long.
52 Next, it must be pointed out that it is true that the fonts used in order to represent the word elements in the sign applied for and in the first earlier mark are very similar. However, first, it must be stated that the letters in the word element of the first earlier mark are elongated vertically in a clearly perceptible manner, whereas the word element of the sign applied for is represented in a standard font. Secondly, as the Board of Appeal correctly pointed out in paragraph 35 of the contested decision, the upper part of the letter ‘A’ in the word element of the first earlier mark, which is represented in pink, constitutes a difference between that earlier mark and the sign applied for which will immediately be noticed by the relevant public.
53 Furthermore, the Board of Appeal and EUIPO are right in stressing, in essence, that the part of the relevant public which recognises the Latin capital letter ‘A’ in the symbol ‘Λ’ will nevertheless notice that it is not a Latin capital letter ‘A’, but rather a stylised version. The intellectual effort which must be made by that part of the relevant public in order to make that association shows that a difference exists.
54 Lastly, EUIPO is also right in observing that the use of a double letter ‘a’ is rather unusual in part of the relevant territory, whereas such a double letter ‘a’ will clearly be perceived as being different from a single letter ‘a’ by the speakers of a language in which such a double vowel is known.
55 In the light of the foregoing, the Board of Appeal did not therefore err in finding that, overall, from a visual standpoint, the differences between the signs at issue offset the similarities between them, with the result that there is, at most, a low degree of visual similarity.
– The phonetic similarity
56 As regards the phonetic similarity, the Board of Appeal found, in paragraphs 37 and 38 of the contested decision, that, for the part of the relevant public which recognised the Greek capital letter lambda in the sign applied for, that sign would be perceived as being difficult to pronounce overall. In that case, it found that there would be only a low degree of phonetic similarity. As regards the part of the relevant public which perceived the symbol Λ’ as a stylised version of the capital letter ‘A’ and therefore perceived the word element of the mark applied for as ‘laava’, the Board of Appeal found, in paragraph 38 of the contested decision, that that part of the public would perceive the signs at issue as being, at most, phonetically similar to a low degree. It stated that the ‘a’ sound would be longer than in the earlier marks and was repeated at the end of the word. Moreover, it observed that the signs differ in their number of syllables and their rhythm.
57 The applicant submits that the pronunciation of the signs at issue coincides in the sound of the group of letters ‘lav’. It argues that it differs in the sound of the third letter ‘a’ in the sign applied for. It contends that, for part of the relevant public, for example that which is Spanish speaking, the repetition of the letter ‘a’ in the middle of the sign applied for would have no impact on the pronunciation. It submits that the addition of a phoneme ‘a’ at the end of the sign applied for does not prevail over the phonetic similarities created by the three letters, ‘lav’, which they have in common. The applicant argues that, although the earlier marks consist of one syllable and the mark applied for may be pronounced as two syllables, the second syllable in the sign applied for could, in the light of the fact that it constitutes a repetition of the sound of the preceding vowel, be omitted when it is pronounced. In any event, it submits that the beginnings of the signs at issue, which those signs have in common, are much more relevant for the purposes of the phonetic comparison. It contends that, consequently, the signs at issue are phonetically similar to, at least, an average, or even a high, degree.
58 EUIPO disputes the applicant’s arguments.
59 In the present case, the Board of Appeal was right in finding that, for the part of the relevant public which perceives the word element of the mark applied for as ‘laava’, that word element consists of two syllables, whereas the word element of the earlier marks contains only one syllable. Contrary to what the applicant claims, the double vowel ‘a’ in the word element of the mark applied for does have an impact on the pronunciation of that element for that part of the relevant public. For speakers of languages in which such a double vowel ‘a’ is used, like, for example, Danish and Dutch, that double vowel ‘a’ is usually pronounced differently from a single vowel ‘a’ situated in the same place in that word element. Likewise, speakers of other languages in which such a double vowel ‘a’ is unknown will also pronounce the double vowel ‘a’ differently from a single vowel ‘a’. They will pronounce it either as an ‘a’ which is longer than usual or as two ‘a’s with a short pause between the two (‘a’ ‘a’).
60 The applicant is also wrong in submitting that the third letter ‘a’ in the word element of the mark applied for might not be pronounced by part of the relevant public. On the contrary, the part of the relevant public which understands the word element of the mark applied for as ‘laava’ will indeed pronounce the final letter ‘a’ and will therefore pronounce the word element as two syllables, namely ‘laa’ ‘va’.
61 Since the earlier signs are pronounced as one syllable, ‘lav’, which therefore differs from the first syllable in the word element of the mark applied for, it is also not correct to claim, as the applicant has done, that the initial parts of the signs at issue correspond phonetically.
62 It follows that the Board of Appeal was fully entitled to find that, overall, in the light of the different number of syllables and rhythm, the signs at issue were phonetically similar only to a low degree.
– The conceptual similarity
63 In paragraph 39 of the contested decision, the Board of Appeal found that the sign applied for could be regarded as conveying a concept only if the symbol ‘Λ’ were to be read as the Latin capital letter ‘A’. It took the view that, in that case, that sign would be understood as a reference to the concept of ‘lava’. However, according to the Board of Appeal, it was not a given that the relevant public would associate a clear meaning with the earlier signs. It found that, consequently, a conceptual comparison was either impossible or would lead to a finding of dissimilarity.
64 In essence, the applicant agrees with that assessment on the part of the Board of Appeal as regards certain parts of the relevant public, but adds that not only the word element ‘laava’ in the sign applied for, but also the word element ‘lav’ in the earlier signs could, in the mind of certain parts of the relevant public, evoke an association with the concept of ‘lava’. It also stresses that the mineral stones contained in the ‘glass bottles containing mineral stones’, which are covered by the mark applied for, may have a volcanic origin. According to the applicant, for the part of the relevant public which makes the conceptual link between the words ‘laava’ and ‘lav’, on the one hand, and the concept of ‘lava’, on the other, the signs at issue have some conceptual similarities.
65 EUIPO agrees with the Board of Appeal’s assessments.
66 In the present case, contrary to what the applicant claims, it cannot be held that the relevant public, when faced with the earlier marks and their word element ‘lav’ on their own, would make an association with the concept of ‘lava’. Although that association is quite obvious as regards the word element of the mark applied for, in particular for speakers of languages in which that concept is referred to by the word ‘lava’, the group of three letters ‘lav’ is too short to evoke that concept. Furthermore, the word ‘lav’ exists in Danish and means ‘low’. As the applicant rightly submits, for English speakers, ‘lav’ could be understood rather as an abbreviation of the word ‘lavatory’ or ‘toilet’. Overall, the Board of Appeal was therefore right in finding that the conceptual comparison was either impossible or led to a finding of dissimilarity.
The likelihood of confusion
67 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).
68 In paragraphs 43 to 45 of the contested decision, the Board of Appeal found that, even though the goods at issue were identical, a low degree of similarity between the signs could be found to exist only in the event that the symbol ‘Λ’ was read as the Latin capital letter ‘A’. Given that, in the present case, the relevant public displayed a high level of attention, the Board of Appeal found that there was no likelihood of confusion. It took the view that the fact that the sign applied for constituted an unusual combination of Greek letters (or symbols, if the Greek letters were not recognised as such) and Latin letters and that the earlier signs were short would enable the relevant public to identify immediately the differences between the signs. Overall, it found that there was therefore no likelihood of confusion between the marks at issue.
69 According to the applicant, the goods at issue are identical and the distinctive character of the earlier marks is average. It submits that there is an average to high degree of visual and phonetic similarity. It argues that, for part of the relevant public, there are some conceptual similarities. It contends that the earlier marks are short signs and that the third and fifth letters, ‘A’, in the sign applied for do not create any perceptible difference. It submits that, even in short marks, some differences will be insufficient if they do not result in a visual difference capable of distinguishing the signs. It argues that, on account of the coincidences between the signs at issue, it is highly likely that the relevant public will assume that the goods in question come from the same undertaking or from economically linked undertakings. It contends that there is therefore a likelihood of confusion or, at the very least, a likelihood that the relevant public will perceive the mark applied for as a sub-brand of the earlier marks, at least on the part of the section of the relevant public which understands the symbol ‘Λ’ as the Latin capital letter ‘A’, which is sufficient for registration of the mark applied for to be refused.
70 EUIPO disputes the applicant’s arguments.
71 In the present case, it is apparent from the foregoing that the relevant public consists of the general public and of professional consumers who, contrary to what the applicant claims, display a higher than average level of attention when purchasing ‘glass bottles containing mineral stones’ (see paragraphs 24 to 33 above). It is also apparent from the foregoing that a likelihood of confusion on the part of the section of the relevant public – in principle, that in the whole of the European Union – which does not recognise the Greek capital letter lambda in the symbol ‘Λ’, which is contained three times in the sign applied for, is sufficient for the application for registration to be rejected (see paragraphs 19 and 46 above). In addition, it has been pointed out that the goods at issue are identical (see paragraph 34 above) and that, contrary to what the applicant claims, there is, at most, a low degree of visual (see paragraphs 50 to 55 above) and phonetic (see paragraphs 59 to 62 above) similarity between the signs at issue, whereas a conceptual comparison between those signs is either impossible or leads to a finding of dissimilarity (see paragraph 66 above), including for that part of the relevant public which perceives the word element of the mark applied for as being ‘laava’. Furthermore, as the applicant also acknowledges, the Board of Appeal was right in finding, in paragraph 32 of the contested decision, that the distinctiveness of the earlier marks was average.
72 In addition, given that the earlier marks are short signs consisting of three letters each, which can actually be visualised in their entirety at a glance, the Board of Appeal was right in finding that the relevant public immediately identified the differences between those signs and the mark applied for (see also paragraph 51 above).
73 In that regard, although it is true, as the applicant submits, that it is apparent from the case-law that, even in short trade marks, some differences will be insufficient if they do not result in a visual difference capable of distinguishing the signs (see judgment of 10 October 2019, Biasotto v EUIPO – Oofos (OOF), T‑453/18, not published, EU:T:2019:733, paragraph 34 and the case-law cited), it must, however, be held that, in the present case, in the light in particular of the considerations set out above as regards the visual (see paragraphs 50 to 55 above) and phonetic (see paragraphs 59 to 62 above) similarity between the signs at issue, the aspects of dissimilarity between them are sufficiently significant to enable the relevant public, which displays a higher than average level of attention, to distinguish between the marks at issue.
74 Consequently, the Board of Appeal was fully entitled to find that, overall, there was no likelihood of confusion between the marks at issue.
75 The second plea must therefore be rejected.
The first plea, alleging infringement of the right to be heard
76 By its first plea in law, alleging infringement of the right to be heard, according to the second sentence of Article 94(1) of Regulation 2017/1001, the applicant complains that the Board of Appeal relied on the consideration that the element ‘Λ’ in the mark applied for would be understood by the relevant public as the capital letter lambda of the Greek alphabet. It submits that throughout the proceedings before EUIPO, the trade mark applicants and the applicant took the view that that element would be understood as the stylised capital letter ‘A’ of the Latin alphabet and that the Opposition Division also relied on that understanding. The applicant argues that, if it had been invited to set out its view on that consideration on the part of the Board of Appeal, it would have had the opportunity to submit arguments in order to rebut it.
77 EUIPO disputes the applicant’s arguments.
78 The second sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.
79 In accordance with that provision, a Board of Appeal of EUIPO may base its decision only on matters of fact or of law on which the parties have been able to set out their views. That provision lays down, in EU trade mark law, the general principle of protection of the rights of the defence, according to which a person whose interests are appreciably affected by a decision taken by a public authority must be given the opportunity effectively to make his or her point of view known. The right to be heard extends to all the factual and legal material which forms the basis of the decision, but not to the final position which the authority intends to adopt (see judgment of 17 October 2018, Golden Balls v EUIPO – Les Éditions P. Amaury (GOLDEN BALLS), T‑8/17, not published, EU:T:2018:692, paragraph 58 and the case-law cited).
80 However, it is apparent from settled case-law that the rights of the defence, which include the right to be heard (see paragraph 79 above), are infringed by reason of a procedural irregularity only in so far as the irregularity has actually had an effect on the ability of the undertakings concerned to defend themselves. Accordingly, non-compliance with rules in force, the purpose of which is to protect the rights of the defence, such as that laying down the right to be heard, can vitiate the administrative proceedings only if it is shown that the latter could have had a different outcome if the rules had been observed (judgments of 12 May 2009, Jurado Hermanos v OHIM (JURADO), T‑410/07, EU:T:2009:153, paragraph 32; of 6 September 2013, Eurocool Logistik v OHIM – Lenger (EUROCOOL), T‑599/10, not published, EU:T:2013:399, paragraph 51; and of 16 June 2021, Fidia farmaceutici v EUIPO – Ioulia and Irene Tseti Pharmaceutical Laboratories (HYAL), T‑215/20, not published, EU:T:2021:371, paragraph 84).
81 However, as EUIPO correctly submits, in the present case, the Board of Appeal did not rely solely on the assumption that the element ‘Λ’ in the mark applied for would be understood by the relevant public as the capital letter lambda in the Greek alphabet. It also, in point of fact, examined the other possibility, according to which the relevant public would understand that symbol as the stylised capital letter ‘A’ in the Latin alphabet, and found that the similarities between the signs at issue were not sufficient to conclude that there was a likelihood of confusion in either of those cases.
82 Since it is apparent from the considerations set out above as regards the second plea in law (see, in particular, paragraphs 45 and 46 and 71 to 74 above), that the Board of Appeal was fully entitled to find that there was no likelihood of confusion between the marks at issue, including on the part of the section of the relevant public which perceived the symbol ‘Λ’ as a stylised representation of the Latin capital letter ‘A’, it must be held that any failure on the part of the Board of Appeal to comply with the applicant’s right to be heard as regards the relevant public’s understanding of that symbol, even if there were such a failure in this instance, did not, in any event, have any bearing on the outcome in the present case.
83 Consequently, it cannot be held that the Board of Appeal infringed the applicant’s right to be heard.
84 It follows that the first plea also cannot succeed.
85 In the light of all of the foregoing considerations, since none of the pleas relied on by the applicant in support of the form of order sought by it is to be upheld, the action must be dismissed in its entirety, without it being necessary to rule on the admissibility of Annex A.5, by which the applicant seeks to challenge the Board of Appeal’s erroneous finding that, in essence, the whole of the relevant public (and not only the part which speaks Greek) will perceive the symbol ‘Λ’ contained in the word element of the mark applied for as the Greek capital letter lambda (see paragraphs 40 to 42 above).
Costs
86 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.
87 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 (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Gürok Turizm ve Madencilik Anonim Sirketi to pay the costs.
Costeira | Kancheva | Tichy-Fisslberger |
Delivered in open court in Luxembourg on 13 September 2023.
V. Di Bucci | | S. Papasavvas |