JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 July 2023 (*)
(EU trade mark – Opposition proceedings – Application for EU word mark Terylene – Earlier EU word mark TERRALENE – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Genuine use of the earlier mark – Proof of genuine use)
In Case T‑325/22,
Nurel, SA, established in Zaragoza (Spain), represented by C. Anadón Giménez and J. Learte Álvarez, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
FKuR Property GmbH, established in Willich (Germany), represented by H. Timmann, lawyer,
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, G. De Baere and K. Kecsmár (Rapporteur), Judges,
Registrar: R. Ukelyte, Administrator,
having regard to the written part of the procedure,
further to the hearing on 15 March 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Nurel, SA, seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 30 March 2022 (Case R 1544/2021-4) (‘the contested decision’).
Background to the dispute
2 On 27 June 2019, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign Terylene.
3 The mark applied for covered, inter alia, goods in Class 1 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponding to the following description: ‘Unprocessed plastics’.
4 The application for registration was published in the European Union Trade Marks Bulletin No 2019/176 on 17 September 2019.
5 On 3 December 2019, the intervener, FKuR Property GmbH, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6 The opposition was based on the earlier EU word mark TERRALENE, covering, inter alia, ‘unprocessed plastics’ in Class 1.
7 The ground relied on in support of the opposition was that referred to 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).
8 Following the applicant’s request, the Opposition Division of EUIPO invited the intervener to furnish proof of genuine use of the earlier mark relied on in support of the opposition. The intervener complied with that request on 1 October 2020.
9 On 13 July 2021, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001.
10 On 9 September 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
11 By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was a likelihood of confusion on the part of the relevant public.
Forms of order sought
12 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs, including those relating to the proceedings before the Board of Appeal.
13 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs if an oral hearing is convened.
14 The intervener contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
15 The applicant relies, in essence, on three pleas in law, alleging (i) infringement of Article 8(1)(b) of Regulation 2017/1001, (ii) inadmissibility of the new proof of use of the earlier mark submitted before the Board of Appeal and (iii) insufficient proof of use of the earlier mark. It is appropriate to begin by examining the second plea, then the third plea and finally the first plea.
The second plea, relating to the inadmissibility of the new proof of use submitted before the Board of Appeal
16 The Board of Appeal found that the intervener had submitted to it new evidence of use of the earlier mark, including 52 invoices addressed to clients in Germany, Italy, Luxembourg and Sweden. Next, the Board of Appeal found that that evidence satisfied the conditions laid down in Article 27(4) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), in so far as it was relevant and supplemented the evidence submitted before the Cancellation Division, and that it was therefore admissible.
17 The applicant submits that the items of evidence of genuine use of the earlier mark, which were produced by the intervener for the first time before the Board of Appeal, are inadmissible under Article 27(4) of Delegated Regulation 2018/625. They do not constitute mere complementary or supplementary evidence, but substantial new evidence, the volume of which is greater than that of the evidence produced before the Opposition Division. Furthermore, the intervener provides no reason to justify that late submission. The applicant adds that, by finding that those additional items of evidence were admissible, the Board of Appeal infringed the principles of sound administration and legal certainty.
18 EUIPO and the intervener dispute those arguments.
19 Under Article 95(2) of Regulation 2017/1001, EUIPO may disregard evidence which is not submitted in due time by the parties concerned.
20 However, according to Article 27(4) of Delegated Regulation 2018/625, the Board of Appeal may accept evidence submitted for the first time before it only where that evidence satisfies two conditions: first it is ‘on the face of it, likely to be relevant for the outcome of the case’ and secondly, it ‘[has] not been produced in due time for valid reasons, in particular where [it is] merely supplementing relevant facts and evidence which had already been submitted in due time, or [is] filed to contest findings made or examined by the first instance of its own motion in the decision subject to appeal’.
21 That provision seeks to reconcile two potentially conflicting requirements. First, it is consistent with the principle of sound administration and the need to ensure the proper conduct and effectiveness of proceedings that the parties have an incentive to respect the time limits imposed on them by EUIPO when hearing a case. The fact that EUIPO may take into account facts and evidence produced by the parties outside the prescribed time limits only under certain conditions has such an incentive effect (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 47).
22 By preserving, nevertheless, the possibility, for the authority called upon to make a decision in a dispute, of taking into account facts and evidence submitted late by the parties, that interpretation is, at least in respect of opposition proceedings, likely to contribute to ensuring that marks whose use could later successfully be challenged by means of annulment or infringement proceedings are not registered. As the Court of Justice has previously held, reasons of legal certainty and sound administration speak in favour of that approach (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 48).
23 As regards the first condition set out in paragraph 20 above, the applicant accepts that the evidence produced for the first time before the Board of Appeal is relevant.
24 As regards the second condition referred to in paragraph 20 above, it should be recalled that supplementary evidence is characterised by a link with other evidence previously submitted in due time which it supplements (see, to that effect, judgments of 14 May 2019, Guiral Broto v EUIPO – Gastro & Soul (Café del Sol and CAFE DEL SOL), T‑89/18 and T‑90/18, not published, EU:T:2019:331, paragraph 42, and of 9 September 2020, Kludi v EUIPO – Adlon Brand (ADLON), T‑144/19, not published, EU:T:2020:404, paragraph 56).
25 In the present case, first, the intervener, on 1 October 2020, filed the following items of evidence with the Opposition Division of EUIPO:
– an affidavit from the intervener’s managing director dated 30 September 2020;
– five invoices addressed, between 2016 and 2019, to customers of the intervener in Germany, Italy, Luxembourg and Sweden for sales of 32.5 tonnes of unprocessed plastics with a value of approximately EUR 90 000, bearing the sign TERRALENE® followed by two characters and four digits;
– five safety data sheets in English, containing information about the products mentioned on the invoices;
– five printouts of the intervener’s website ‘www.fkur.com/produkte/terralene.html’, made using the WayBack Machine, showing entries for 2015, 2016, 2017 and 2019, containing the sign TERRALENE.
26 Next, the intervener produced before the Board of Appeal 52 invoices bearing the trade mark TERRALENE, issued between 2016 and 2019, addressed to customers in Germany, Italy, Luxembourg and Sweden, for unprocessed plastic and corresponding to a volume of 240.35 tonnes.
27 This evidence was intended to prove facts that had already been raised before the Opposition Division within the time limit. More specifically, the 52 invoices, as the intervener correctly observed, mainly serve to supplement the affidavit of its managing director, dated 30 September 2020, already submitted in due time before the Opposition Division, as well as the evidence already submitted, in particular the five invoices referred to in paragraph 25 above. In addition, the affidavit of the intervener’s managing director already lists all the sales covered by those 52 invoices.
28 Moreover, it must be stated that the 52 invoices were submitted in order to challenge the applicant’s argument before the Board of Appeal that the five invoices, submitted on 1 October 2020 before the Opposition Division, showed only token use of the earlier mark.
29 Furthermore, contrary to the applicant’s claim, the fact that the number of items of evidence submitted for the first time before the Board of Appeal is considerably greater than that of the items of evidence submitted before the Cancellation Division is not such as to make that evidence inadmissible.
30 There is nothing in Article 27(4) of Delegated Regulation 2018/625, in any other provision of that regulation or in Regulation 2017/1001 to indicate that evidence submitted for the first time before the Board of Appeal should be rejected where the number of such items of evidence or their volume exceeds a certain threshold. Thus, if that evidence satisfies the conditions laid down in Article 27(4) of Delegated Regulation 2018/625, the Board of Appeal may accept it (see, to that effect, judgment of 19 January 2022, Masterbuilders, Heiermann, Schmidtmann v EUIPO – Cirillo (POMODORO), T‑76/21, not published, EU:T:2022:16, paragraph 45).
31 It follows that the second condition, laid down in Article 27(4) of Delegated Regulation 2018/625, must be regarded as satisfied and that, therefore, the Board of Appeal was fully entitled to conclude that the evidence submitted for the first time before it was admissible.
32 Finally, as regards the argument concerning the principles of sound administration and legal certainty, it is sufficient to recall that Article 27(4) of Delegated Regulation 2018/625 specifically balances those general principles (see the case-law cited in paragraphs 21 and 22 above). Accordingly, the applicant does not put forward any argument, other than those already rejected above, that is capable of demonstrating that the Board of Appeal infringed those principles when it exercised the discretion granted to it by Article 27(4) of Delegated Regulation 2018/625.
33 Consequently, it follows from the foregoing that the second plea must be rejected as unfounded.
The third plea, regarding insufficient proof of use
34 The Board of Appeal concluded that genuine use of the earlier mark had been shown for the goods at issue.
35 As regards the place of use, the Board of Appeal found that the invoices produced showed sales of the goods at issue, under the earlier mark, in the European Union and essentially in Germany, Italy, Luxembourg and Sweden. In addition, the safety data sheets, filed with the Opposition Division, concerned the compliance of the goods at issue with EU rules.
36 As regards the duration of use, the Board of Appeal observed that the evidence, with the exception of the two safety data sheets, dating from 2012 and 2013, fell within the relevant period, namely from 27 June 2014 to 26 June 2019.
37 As regards the extent of use of the earlier mark, the Board of Appeal found that the invoices produced and the affidavit of the intervener’s managing director, dated 30 September 2020, established that the quantities of the goods at issue, sold under the earlier mark, were sufficient to dispel token use.
38 As regards the nature of the use of the earlier mark, the Board of Appeal noted that its use in various forms, all including the word element ‘terralene’, did not alter its distinctive character. Furthermore, the Board of Appeal found that that mark was used for the goods at issue.
39 The applicant disputes that the items of evidence produced by the intervener before the Opposition Division were sufficient to prove genuine use of the earlier mark for the goods at issue. First, the applicant submits that the affidavit of the intervener’s managing director, dated 30 September 2020, is not verifiable and does not come from an independent source. Secondly, according to the applicant, the safety data sheets cannot be used to confirm the extent of use. Thirdly, in order to prove genuine use, copies of internet pages must be accompanied, according to the applicant, by other documents, such as the number of visits by customers or of orders. Fourthly, the applicant submits that the invoices show only occasional use, which becomes obvious in comparison with data considered sufficient in other proceedings before EUIPO in which proof of use in relation to unprocessed plastics was examined. Moreover, the sales quantities resulting from those invoices represent, according to the applicant, a very small share of the plastic market.
40 EUIPO and the intervener dispute those arguments.
41 For the purposes of interpreting the concept of genuine use, account must be taken of the fact that the rationale for the requirement that the earlier mark must have been put to genuine use if it is to be capable of being used in opposition to an EU trade mark application is to restrict the number of conflicts between two marks, unless there is good commercial justification for the lack of genuine use of the earlier mark deriving from an actual function of the mark on the market. However, the purpose of those provisions is not to assess commercial success or to review the economic strategy of an undertaking, nor is it intended to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 38).
42 It can be said that there is genuine use of a mark where it is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or those services, but genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
43 In assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (judgment of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 40; see also, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
44 The turnover and the volume of sales of the product under the earlier trade mark cannot be assessed in absolute terms but must be looked at in conjunction with other relevant factors, such as the volume of business, production or marketing capacity or the degree of diversification of the undertaking using the trade mark and the characteristics of the goods or services on the relevant market. As a result, use of the earlier mark need not always be quantitatively significant in order to be deemed genuine (judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 36, and of 8 July 2004, VITAFRUIT, T‑203/02, EU:T:2004:225, paragraph 42).
45 Thus, although the probative value of an item of evidence is limited to the extent that, individually, it does not show with certainty whether, and how, the goods concerned were placed on the market, and although that item of evidence is therefore not in itself decisive, it may nevertheless be taken into account in the global assessment as to whether the use of the mark at issue is genuine. That is the case, for example, where that item of evidence is accompanied by other evidence (judgment of 6 March 2014, Anapurna v OHIM – Annapurna (ANNAPURNA), T‑71/13, not published, EU:T:2014:105, paragraph 45).
46 It is in the light of those considerations that the applicant’s arguments, contesting the sufficiency of the evidence adduced by the intervener to establish genuine use of the earlier trade mark for the goods at issue, must be assessed.
47 As a preliminary point, it must be borne in mind that the applicant sets out its arguments solely in relation to the evidence produced by the intervener before the Opposition Division. In that regard, it must be held that the applicant’s arguments are ineffective, in so far as they do not take into account the 52 invoices, produced before the Board of Appeal, upon which the said Board also relies.
48 That being so, it must first be emphasised that, with regard to the affidavit of the intervener’s managing director, as the Board of Appeal rightly observed, the probative value of that evidence was supported by the other documents lodged by the intervener on 1 October 2020 and referred to in paragraph 25 above. Consequently, the applicant’s arguments based on the case-law finding that such a declaration could not, on its own, constitute sufficient proof of genuine use (judgment of 9 December 2014, Inter-Union Technohandel v OHIM – Gumersport Mediterranea de Distribuciones (PROFLEX), T‑278/12, EU:T:2014:1045, paragraph 54) cannot succeed.
49 In the second place, as regards the safety data sheets and the copies of the internet pages, it suffices to note that the Board of Appeal relied principally on the invoices produced by the intervener and that that other evidence was mentioned by the Board of Appeal only as additional evidence. In any event, those sheets, as well as the online promotional activities referring to the earlier mark, constitute relevant evidence capable of demonstrating the nature and extent of use of that mark in the context of a global assessment of all the evidence submitted. While it is true that some of those sheets predate the relevant period, others do not. They show that the goods covered by the earlier mark comply with EU rules and are therefore such as to demonstrate, in the context of the global assessment, that that mark has been put to continuous and genuine use. That finding is reinforced by the fact that references in the data sheets coincide with those mentioned on the invoices produced by the intervener.
50 In the third place, as regards the invoices, it should be noted that the applicant’s arguments concern only the five invoices produced by the intervener before the Opposition Division, in so far as the applicant starts from the premiss that the invoices produced before the Board of Appeal are inadmissible. In the present case, contrary to what the applicant claims, all the invoices submitted by the intervener show a non-token volume of sales and genuine use of the earlier mark. It should be noted that, as is apparent from paragraphs 17 and 75 of the contested decision, the proprietor of the earlier mark has sufficiently established that it had sold more than 500 tonnes of unprocessed plastics during the period between 2016 and 2019. More specifically, according to the affidavit of the intervener’s managing director, dated 30 September 2020, between 2016 and 2019 those sales had been made in Belgium, the Czech Republic, Denmark, Germany, Greece, Spain, France, Italy, Luxembourg, the Netherlands, Austria, Poland, Portugal, Slovenia, Finland and Sweden. According to that affidavit, the value of sales for the period from January 2016 to June 2019 was approximately EUR 1.4 million. It should be added that the applicant has not submitted any evidence to call into question the veracity or probative value of that information.
51 Lastly, the applicant disputes the extent of the sales made under the earlier mark, placing them in the context, on the one hand, of other proceedings before EUIPO in which proof of the use of plastic products was examined and, on the other, of data concerning the volume of plastic production in the European Union, according to the organisation Plastics Europe.
52 As regards the relevance of the sales values considered sufficient to establish genuine use by EUIPO in other cases concerning plastic products, it suffices to recall that the decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation as interpreted by the Courts of the European Union and not on the basis of a previous decision-making practice (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
53 As regards the data concerning the volume of plastic production in the European Union, cited by the applicant in order to demonstrate that the sales made under the earlier mark were insufficient, it should be noted that the data submitted by the applicant lack clarity and precision. It is not clear whether they concern the goods at issue, namely unprocessed plastics, or, as the intervener has pointed out, finished products and intermediate products. The applicant’s argument based on that data is therefore not such as to call into question the Board of Appeal’s finding.
54 Therefore, taking into account all the evidence submitted, the Board of Appeal was entitled to find that genuine use of the earlier mark had been proved to the requisite legal standard for the goods at issue, namely unprocessed plastics.
55 Consequently, it follows from the foregoing that the third plea must be rejected as unfounded.
The first plea, concerning infringement of Article 8(1)(b) of Regulation 2017/1001
56 As regards the relevant public, the Board of Appeal found that it consisted of business consumers whose level of attention varied from average to high and that the relevant territory was that of the European Union as a whole. Next, the Board of Appeal noted that it was common ground between the parties that the goods at issue were identical.
57 Those findings are not challenged by the applicant.
58 As regards the similarity of the signs at issue, the Board of Appeal found that they were visually and aurally similar to an average degree and were conceptually neutral or not similar.
59 In the light of all those elements and of the normal degree of distinctiveness of the earlier mark, the Board of Appeal concluded that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
60 The applicant disputes that finding and submits that the prefix ‘terra’ in the earlier mark could immediately be understood by part of the relevant public as meaning ‘earth’ or ‘ground’ and could thus suggest that the goods covered by the earlier mark are environmentally respectful. According to the applicant, such a meaning is lacking in the contested mark and, consequently, the signs at issue are perfectly distinguishable. It adds that their endings in ‘ene’, although similar, are irrelevant to the comparison of the signs, since they are usually used for trade marks covering chemical and, in particular, plastic products.
61 Furthermore, the applicant claims that the differences in the mechanical and thermal properties of the goods covered by the contested mark, in relation to the goods covered by the earlier mark, make confusion between the goods covered by the trade mark TERRALENE and those covered by the trade mark Terylene unlikely, especially in view of the fact that their customers belong to the category of professionals.
62 EUIPO contends that the applicant’s arguments are ineffective and in any event, as the intervener submits, are unfounded.
63 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 is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
64 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).
65 The global assessment of the likelihood of confusion must, in so far as concerns the visual, aural 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 that 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).
66 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
67 It is in the light of those considerations that an assessment must be made regarding the applicant’s arguments that the Board of Appeal’s analysis of the likelihood of confusion is erroneous.
68 As a preliminary point, it should be noted that the applicant does not put forward any arguments to challenge the Board of Appeal’s assessment of the relevant public or the fact that the goods at issue are identical. Nor does it criticise the Board of Appeal’s analysis concerning the visual, aural and conceptual comparison of the signs at issue. However, the applicant calls into question the Board of Appeal’s finding as to the normal degree of distinctiveness of the earlier mark and the global assessment of the likelihood of confusion.
69 First, as regards the applicant’s argument that the prefix ‘terra’ in the earlier mark could be perceived as having a meaning, the Board of Appeal was entitled to find that that prefix did not convey any meaning for the goods at issue and that that mark therefore had an average degree of distinctiveness. Moreover, the applicant has not shown that the earlier mark as a whole has a specific meaning for the relevant public.
70 Furthermore, and as EUIPO held, the conceptual difference, which concerns only part of the earlier mark, cannot neutralise the similarities between the signs at issue, nor can it call into question the global assessment of the likelihood of confusion.
71 In that regard, as EUIPO correctly submits, the Board of Appeal accepted that for part of the relevant public the prefix ‘terra’ in the earlier mark could be perceived as having a meaning. However, the fact remains that another part of the relevant public will not understand it, which the applicant does not dispute. Consequently, the applicant's arguments cannot call into question the existence of a likelihood of confusion for that part of the public which will not understand the prefix ‘terra’, given that, pursuant to settled case-law, 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, 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).
72 Secondly, as regards the applicant’s argument that the fact that the endings in ‘ene’ of the marks at issue are identical is irrelevant, since they are common in the sector concerned, suffice it to note that, in accordance with the case-law cited in paragraph 65 above, the global assessment of the likelihood of confusion must relate to the signs as a whole.
73 Thirdly, it is necessary to reject the applicant’s argument disputing the global assessment of the likelihood of confusion carried out by the Board of Appeal, which relies both on the fact that the customers of the marks at issue are professionals and that the goods at issue differ in their mechanical and thermal properties.
74 In that regard, according to settled case-law, if the level of attention of the relevant public varies from average to high, as in the present case, the public with the lowest level of attention must be taken into consideration (see judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraphs 27 and 28 and the case-law cited). The applicant’s arguments concerning the professional public are therefore ineffective. Furthermore, it must be held that the goods covered by the marks at issue are identical, without any specification of their mechanical and thermal qualities.
75 Consequently, it follows from the foregoing that the first plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
Costs
76 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.
77 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Nurel, SA to pay the costs.
Delivered in open court in Luxembourg on 12 July 2023.
V. Di Bucci | | S. Papasavvas |