Language of document : ECLI:EU:T:2018:815

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

21 November 2018 (*)

(EU trade mark — Opposition proceedings — Application for EU figurative mark SEVENOAK — Earlier international figurative mark 7seven — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)

In Case T‑339/17,

Shenzhen Jiayz Photo Industrial Ltd, established in Shenzhen (China), represented by M. de Arpe Tejero, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, acting as Agent,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

Seven SpA, established in Leinì (Italy), represented by L. Trevisan, lawyer,

ACTION brought against the decision of the First Board of Appeal of EUIPO of 23 March 2017 (Case R 1326/2016-1), relating to opposition proceedings between Seven and Shenzhen Jiayz Photo Industrial,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 31 May 2017,

Having regard to the response of EUIPO lodged at the Court Registry on 28 September 2017,

having regard to the response of the intervener lodged at the Court Registry on 10 October 2017,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

 Background to the dispute

1        On 3 December 2014, the applicant, Shenzhen Jiayz Photo Industrial Ltd, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p 1)).

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

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3        The goods in respect of which registration was sought are in Class 9 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, inter alia, to the following description, relevant only in respect of the present dispute: ‘Optical lenses; bags adapted for carrying photographic apparatus’.

4        The trade mark application was published in the European Union Trade Marks Bulletin No 2015/2 of 5 January 2015.

5        On 31 March 2015, the intervener, Seven SpA, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on international registration No 1231145 designating the European Union, in respect of goods in Class 9 corresponding to the following description: ‘Optical apparatus and instruments, eyeglasses, sunglasses, spectacles, frames, goggles for sports; cases for photographic apparatus, for glasses’, for the figurative mark:

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7        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).

8        On 1 June 2016, the Opposition Division rejected the opposition for all the goods concerned.

9        The Opposition Division found that the goods were identical. Concerning bags adapted for carrying photographic apparatus, they were intended both for the general public and professionals. As regards optical lenses, they were directed at experts. Thus, also taking into account the fact that those goods were purchased occasionally, the level of attention of consumers varied from higher than average to high. The word ‘seven’ had no particular meaning in relation to the goods in question and therefore had normal distinctive character. Therefore, the earlier mark, for its part, also had normal distinctive character. None of the signs contained elements that could be considered to be more distinctive than other elements. The signs at issue, presented in very stylised writing, were visually dissimilar. They presented, however, an average degree of phonetic similarity for English-speaking consumers and a low degree of similarity for non-English-speaking consumers. Despite their differences, those signs were conceptually similar to an average degree for those who understood the word ‘seven’ and who perceived it in the mark applied for in spite of the stylisation of the letter ‘n’. For the relevant public who did not understand the word ‘seven’, the signs were not conceptually similar. Overall, notwithstanding the identity of the goods, there was no likelihood of confusion because the observant consumer would have noticed the differences between the signs at issue.

10      On 21 July 2016, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 58 to 60 of Regulation No 207/2009 (now Articles 66 to 68 of Regulation 2017/1001), against the decision of the Opposition Division.

11      By decision of 23 March 2017 (‘the contested decision’), the First Board of Appeal of EUIPO upheld the appeal brought by the intervener.

12      In particular, it was not disputed before the Board of Appeal that the goods covered respectively by the marks at issue were identical.

13      The Board of Appeal considered that the level of attention of the relevant public could vary from average to above average, as the goods in question were not exclusively sophisticated or expensive. Those products could be acquired not only by professionals, but also by the general public, who are normally informed and reasonably observant and circumspect.

14      It is apparent from paragraphs 21 and 35 of the contested decision that the overall impression conveyed by the earlier mark was, in essence, dominated by the word ‘seven’, which had, for the products in question, an average degree of inherent distinctiveness. However, according to paragraphs 36 and 44 of the contested decision that word was not negligible and would not have gone unnoticed in the overall impression created by the earlier mark.

15      As regards the visual comparison, the Board of Appeal considered that, notwithstanding the differences found, there was a certain degree of similarity between the signs at issue for the English-speaking part of the public because of the presence of the word ‘seven’ in those two signs.

16      As regards the phonetic comparison, the Board of Appeal held that, despite the differences between the two signs, due, in essence, to the low likelihood that the relevant public perceived the number 7, placed at the beginning of the earlier mark, and pronounced it, and to the presence of the element ‘oak’ at the end of the mark applied for, a certain similarity existed between the marks at issue.

17      Also, as regards the conceptual comparison, the Board of Appeal found that there was some similarity between the signs at issue for the English-speaking public and the public with a basic knowledge of English because of the common element ‘seven’. The presence of the element ‘oak’ did not confer on the mark applied for a conceptual content that was sufficiently different from that of the earlier mark so as to exclude any conceptual link between the marks at issue. For the part of the public which has no knowledge of English, and which therefore did not understand the word ‘seven’, the marks at issue would be meaningless.

18      The Board of Appeal found a certain overall similarity between the signs at issue because of the presence in both signs of the word element ‘seven’, which was not insignificant in the overall impression created by the earlier mark.

19      In conclusion, the Board of Appeal found that, given the similarities between the marks at issue and the identity of the goods concerned, there was, because of the principle of the interdependence of factors, a likelihood of confusion between the signs at issue, in particular for English-speaking consumers, even where they displayed a high level of attention for goods in the optics sector.

 Forms of order sought

20      The applicant claims that the Court should:

–        annul the contested decision;

–        order the registration of the mark applied for;

–        order EUIPO to pay the costs.

21      EUIPO contends that the Court should:

–        dismiss the application;

–        order the applicant to pay the costs.

22      The intervener contends that the Court should:

–        dismiss the application and uphold the contested decision;

–        order the applicant to pay the costs.

 Law

 Admissibility

 Admissibility of the applicant’s second head of claim

23      By its second head of claim, the applicant asks the Court to order the registration of the mark applied for. Such a claim, therefore, requests the Court to issue a direction to that effect to EUIPO.

24      It is clear from settled case-law that, in an action before the EU judicature against the decision of a Board of Appeal of EUIPO, EUIPO is required, under Article 65(6) of Regulation No 207/2009 (now, Article 72(6) of Regulation 2017/1001), to take the measures necessary to comply with judgments of the EU judicature. It is therefore not for the General Court to issue directions to EUIPO, but for EUIPO to draw the appropriate inferences from the operative part and grounds of the judgments of the EU judicature (see judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 20 and the case-law cited, and judgment of 5 May 2017, Globo Media v EUIPO — Globo Comunicação e Participações (GLOBO MEDIA), T‑262/16, not published, EU:T:2017:315, paragraph 13). Therefore, as argued, in essence, by the intervener, the applicant’s claim requesting the Court to order the registration of the mark applied for is inadmissible.

 Admissibility of certain evidence adduced for the first time before the Court

25      It must be borne in mind that the purpose an action before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 65 of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001). It follows that the Court cannot re-evaluate the factual circumstances in the light of evidence adduced for the first time before it. The legality of a decision of a Board of Appeal of EUIPO must be assessed in the light of the information available to that Board of Appeal when it adopted that decision (judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraphs 136 to 138; see, also, judgment of 26 July 2017, Staatliche Porzellan-Manufaktur Meissen v EUIPO, C‑471/16 P, not published, EU:C:2017:602, paragraphs 24 and 25 and the case-law cited).

26      As EUIPO points out in its reply, the graphs presented in paragraph 41 of the application, included as Annex A3, are not in the administrative file for the proceedings before EUIPO. They are therefore submitted for the first time before the Court.

27      Consequently, that evidence must be declared inadmissible.

 Substance

28      As a preliminary point, it should be noted that, in its first head of claim, the intervener contends that the Court should dismiss the action and confirm the contested decision. Since ‘confirming’ the contested decision is tantamount to dismissing the action, the intervener’s first head of claim must be regarded as seeking, in essence, the dismissal of the action (see, to that effect, judgment of 9 March 2018, Recordati Orphan Drugs v EUIPO — Laboratorios Normon (NORMOSANG), T‑103/17, not published, EU:T:2018:126, paragraph 31 and the case-law cited).

29      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.

30      Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, an earlier 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 mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.

31      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

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

33      It follows that, where the signs at issue are different, a necessary condition for the existence of a likelihood of confusion is not met; it must therefore be ruled out, regardless of the degree of similarity between the goods or services and the degree of distinctiveness of the earlier mark. Even if the goods or services are identical or highly similar and the earlier mark is highly distinctive, those circumstances do not make up for the fact that the essential requirement relating to the similarity of the signs is not met. On the other hand, where the signs are similar, even to a low degree, the existence of a likelihood of confusion cannot be a priori ruled out, since a low degree of similarity of the signs is likely to be offset by the identity or strong similarity of the goods or services and by the high distinctive character of the earlier mark (judgment of 21 February 2018, Laboratoire Nuxe v EUIPO — Camille and Tariot (NYouX), T‑179/17, not published, EU:T:2018:89, paragraphs 27 and 28).

 The goods in question

34      The Board of Appeal was right to find that the goods in question were identical, and that, moreover, is not disputed by the parties.

 The relevant public and its level of attention

35      The applicant maintains that the Board of Appeal did not correctly assess the level of attention of the relevant public. Optical lenses used in cameras with interchangeable optical lenses are products whose purchase is infrequent and requires a high level of attention, even by the average consumer, who needs the assistance of an expert, having regard to the importance of that choice when purchasing a camera. Cameras with interchangeable optical lenses have lost out in popularity to smartphones, with the consequence that the average consumer has turned to cameras with more complex and expensive optical lenses. Therefore, the applicant argues that the level of attention of those consumers is above average. As regards bags adapted for carrying photographic apparatus, their purchase, which is also infrequent, is preceded by a careful examination by consumers because they must be perfectly adapted to the characteristics of the camera chosen.

36      EUIPO and the intervener dispute the applicant’s arguments.

37      In that regard, it must be recalled that where the protection of the earlier trade mark extends to the entirety of the European Union, as is the case here, 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, and as the Board of Appeal correctly stated at paragraph 16 of the contested decision, in order 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 No 207/2009 exists in only part of the European Union (judgment of 21 March 2011, Visti Beheer v OHIM — Meister (GOLD MEISTER), T‑372/09, not published, EU:T:2011:97, paragraph 20, and the case-law cited).

38      It follows that the Board of Appeal could, in principle, focus its examination on the English-speaking public, which follows, inter alia, from paragraphs 33, 38 and 48 of the contested decision (see, to that effect, judgment of 25 April 2018, Perfumes y Aromas Artesanales v EUIPO — Aromas Selective (Aa AROMAS artesanales), T‑426/16, not published, EU:T:2018:223, paragraph 46).

39      Moreover, according to the case-law, the relevant public consists of persons likely to use both the goods covered by the earlier mark and those covered by the mark applied for (judgment of 13 March 2018, Kiosked v EUIPO — VRT (K), T‑824/16, EU:T:2018:133, paragraph 38).

40      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).

41      It must also be recalled that, with regard to the assessment of the likelihood of confusion, the public having the lowest level of attention must be taken into consideration (judgment of 23 October 2017, Tetra Pharm (1997) v EUIPO — Sebapharma (SeboCalm), T‑441/16, not published, EU:T:2017:747, paragraph 32).

42      Provided that those lenses are integrated or intended to be integrated in the cameras intended for professionals, the public concerned is considered to have a high degree of attention (see, to that effect, judgment of 13 March 2018, K, T‑824/16, EU:T:2018:133, paragraph 43).

43      As regards photographic lenses with an interchangeable camera body with lenses of different focal lengths, apertures and other properties, it is necessary to uphold the Board of Appeal’s finding, in paragraph 14 of the contested decision, that those are goods purchased not only by professionals but also by the general public, which has an interest in photography, so that its level of attention is average. The applicant has put forward no evidence to show that those consumers were particularly attentive when purchasing such goods. In any event, paragraph 48 of the contested decision also relies on a high level of attention for goods in the optical field.

44      As regards bags adapted for carrying photographic apparatus, they are directed not only at professionals, but also at the general public. As stated by the Board of Appeal in paragraph 14 of the contested decision, those goods may range from the simple to the more sophisticated. While the purchase of a bag for a top-of-the-range camera will be preceded by a detailed examination on the part of consumers that will not be the case for the purchase of other bags for photographic apparatus, although consumers will ensure that the bag is suitable for that camera. Thus, the level of attention of those consumers is deemed to be average. As argued in essence by the intervener, the applicant has not provided any evidence to show that that verification implies a higher level of attention than that displayed by consumers, for example, when buying clothes, which are everyday consumer goods and which are often purchased after being tried on. However, it has been held that the level of attention of consumers when purchasing clothes is also average (see, to that effect, judgments of 9 February 2017, zero v EUIPO — Hemming (ZIRO), T‑106/16, not published, EU:T:2017:67, paragraph 20, and of 20 June 2018, Anabi Blanga v EUIPO — Polo/Lauren (HPC POLO), T‑657/17, not published, EU:T:2018:358, paragraphs 6 and 21).

45      Moreover, in its response of 5 November 2015 to the opposition, the applicant argued, and therefore accepted, that the public concerned by the goods in question will display an average level of attention.

46      Thus, the assessment in paragraph 14 of the contested decision must be confirmed.

 The comparison of the signs

47      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the marks at issue, be based on the overall impression given by those marks, 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; judgment of 16 December 2015, Rotkäppchen-Mumm Sektkellereien v OHIM — Ruiz Moncayo (RED RIDING HOOD), T‑128/15, not published, EU:T:2015:977, paragraph 23).

48      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. As is apparent from the case-law, the visual, phonetic and conceptual aspects are relevant in that regard (see judgment of 23 October 2002, Matratzen Concord v OHIM — Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30 and the case-law cited).

–       The distinctive and dominant elements of the earlier mark

49      The applicant criticises, first, the findings made in paragraphs 23 to 28 of the contested decision, concerning the inherent distinctive character of the word ‘seven’, and, secondly, those in paragraphs 21 and 35 of that decision, which concern the position of that word in the earlier mark.

50      First, the applicant submits, in essence, that the word ‘seven’ designates a number, therefore it has a very weak distinctive character, as is confirmed by the large number of marks registered in most EU countries which are constituted of that number or which contain it.

51      EUIPO and the intervener dispute the applicant’s arguments.

52      In that regard, it is clear from the wording of Article 4 of Regulation No 207/2009 that numbers may be registered as EU trade marks. However, in order to be registered, any sign must meet the conditions laid down by Article 7 of Regulation No 207/2009, under which signs are not to be registered if they cannot fulfil the function of indicating to the consumer the commercial origin of the goods and services covered by the application for registration. Accordingly, a number may be registered as an EU trademark only if it is distinctive in relation to the goods and services covered by the application for registration and is not merely a description (judgment of 22 May 2012, Sport Eybl & Sports Experts v OHIM —Seven(SEVEN SUMMITS), T‑179/11, not published, EU:T:2012:254, paragraph 54).

53      Thus, in order to assess the inherent distinctiveness of the word ‘seven’ or of the number 7, it is necessary to analyse those elements in relation to the goods in question, in order to examine to what extent they are able to assist in identifying those goods as coming from a particular undertaking, and thus to distinguish them from those of other undertakings (see, to that effect, judgments of 26 July 2017, Continental Reifen Deutschland v Compagnie générale des établissements Michelin, C‑84/16 P, not published, EU:C:2017:596, paragraph 73, and of 22 May 2012, SEVEN SUMMITS, T‑179/11, not published, EU:T:2012:254, paragraph 55).

54      The Court has already held that if the number chosen, whether presented wholly in words or in its numerical form, does not indicate the quantity, weight, serial number or other specific characteristics of the goods or services concerned, it cannot automatically be concluded that the mark at issue is not distinctive or that it has a very low distinctive character (judgment of 22 May 2012, SEVEN SUMMITS, T‑179/11, not published, EU:T:2012:254, paragraph 56).

55      In the present case, the applicant has not established that the word ‘seven’ had a particular meaning in relation to the goods concerned, or had a connection with those goods, or that it was commonly used in the sector concerned. Whilst the applicant also argues that the alleged weak distinctive character of the word ‘seven’ is confirmed by the large number of marks registered in most EU countries which are constituted by that number or which contain it, suffice it to note that it has not adduced any evidence of this. In any event, it is clear from the case-law that in order for that claim to be relevant, the applicant should have demonstrated significant similarities as regards not only the presence of the word ‘seven’ in the earlier marks, but also the position, typeface, ornamental presentation, any special font of a particular letter of that word, and, if that be the case, the presence of verbal or figurative additional elements before or after that word or number. Furthermore, the marks at issue must refer to the same goods or services (see, to that effect, judgment of 21 February 2013, Seven for all mankind v Seven, C‑655/11 P, not published, EU:C:2013:94, paragraph 49).

56      It must therefore be held that the word ‘seven’ has a normal level of distinctiveness in relation to the goods concerned.

57      As regards the assessment of the distinctive character of the word ‘seven’, the applicant relies on an earlier decision in which EUIPO found a low inherent distinctiveness in respect of the mark concerned. In that regard, it should be noted that EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law. Although, in the light of the principles of equal treatment and of sound administration, EUIPO must take into account the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way or not, the way in which those principles are applied must, however, be consistent with respect for legality (see, to that effect, judgment of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 75). It was held in paragraph 56 above that the word ‘seven’ was to be regarded as having normal distinctiveness in relation to the goods concerned.

58      Secondly, the applicant submits that, contrary to what was held by the Board of Appeal in paragraphs 21 and 35 of the contested decision, the earlier mark is not substantially dominated by the word ‘seven’. The number 7, placed at the start of that mark and partially detached from the word ‘seven’, is perfectly identifiable in the impression produced by that mark.

59      According to EUIPO, the Board of Appeal’s findings are consistent with the analysis of the Court in relation to a similar sign which was the subject of the case which gave rise to the judgment of 6 October 2011, Seven v OHIM — Seven for all mankind (SEVEN FOR ALL MANKIND) (T‑176/10, not published, EU:T:2011:577, paragraphs 31 and 34), in which it held that that number rested on the contours of the letter ‘s’ to the point where it is almost indistinguishable from it, although the importance of the word element ‘seven’ in the overall impression of the earlier mark could not be overlooked. As for the intervener, it contends, in essence, that, in so far as virtually all consumers understand the word ‘seven’, they would not pay much attention to the number 7 and would not pronounce it. Therefore, the word ‘seven’ dominates the overall impression created by the earlier mark.

60      In that regard, it should be recalled that the existence of a similarity between two marks does not presuppose that their common component forms the dominant element within the overall impression created by the mark applied for. According to established case-law, in order to assess the similarity of two marks, it is necessary to consider each of the marks as a whole, although that does not rule out the possibility that the overall impression created in the mind of the relevant public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components. However, 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. It is sufficient in that regard for the common component not to be negligible (see judgment of 2 September 2010, Calvin Klein Trademark Trust v OHIM, C‑254/09 P, EU:C:2010:488, paragraph 56 and the case-law cited).

61      Accordingly, the mere fact that one element of a composite mark formed of two elements plays a more important role than the other does not automatically mean that the comparison between the marks at issue can be limited to considering the former element (see judgments of 10 October 2012, Bimbo v OHIM — Panrico (BIMBO DOUGHNUTS), T‑569/10, not published, EU:T:2012:535, paragraph 78, and of 26 May 2016, Aldi Einkauf v EUIPO — Dyado Liben (Casale Fresco), T‑254/15, not published, EU:T:2016:319, paragraph 35).

62      In the present case, the earlier figurative mark is a composite sign, consisting of the number 7 and the word element ‘seven’ reproduced in a slightly stylised font. The number 7, placed at the beginning of the sign, contains a small black star in the upper left and is slightly hidden by the contours of the letter ‘s’. It must therefore be held that the figurative elements of the sign are limited to an unoriginal font and a small decorative element. Those figurative elements, because of their essentially ornamental function, are of less importance than the word element ‘seven’ which will attract more attention from the relevant public and will be more easily remembered by it, as the Court has already established in respect of a similar figurative sign (judgment of 6 October 2011, SEVEN FOR ALL MANKIND, T‑176/10, not published, EU:T:2011:577, paragraphs 31 and 34).

63      It must therefore be accepted, as follows from paragraphs 36 and 44 of the contested decision, that the word ‘seven’ is not insignificant in the overall impression produced by the earlier mark. It cannot, however, be considered that it occupies, as the intervener states and as follows, in essence, from paragraphs 21 and 35 of the contested decision, a dominant position within the earlier mark, whereas the number 7 only contributes marginally to the overall impression created by that mark. According to settled case-law, the consumer generally pays greater attention to the beginning of a mark than to the end and the word placed at the beginning of a sign is likely to have a greater impact than the rest of the sign (see, to that effect, judgment of 15 July 2015, The Smiley Company v OHIM — The Swatch Group Management Services (HAPPY TIME), T‑352/14, not published, EU:T:2015:491, paragraph 36 and the case-law cited). However, the number 7 is placed at the beginning of the earlier mark and is much more detached, and therefore observable in the overall impression given by that mark, than the number 7 in the earlier mark at issue in the case giving rise to the judgment of 6 October 2011, SEVEN FOR ALL MANKIND (T‑176/10, not published, EU:T:2011:577). It therefore plays a significant role in the overall impression produced by the earlier mark and cannot therefore be disregarded. It follows that the two elements ‘7’ and ‘seven’ have an independent distinctive role within the earlier mark, neither of them being dominant in the overall impression created by the mark. Both should therefore be taken into consideration in the comparison of the marks at issue.

–       Visual similarity

64      First, the applicant submits that, in paragraphs 33 and 34 of the contested decision, the Board of Appeal mixed visual, phonetic and conceptual analysis. The existence of some conceptual similarity between the word ‘seven’, at the beginning of the mark applied for, and the number 7, placed at the beginning of the earlier mark, does not eradicate the differences in their visual representation. Thus, the respective beginnings of the marks at issue are not visually similar. Secondly, the Board of Appeal applied different criteria for the purpose of assessing the signs at issue, in so far as it stated that the number 7 appearing at the start of the earlier mark was barely recognisable (paragraph 35 of the contested decision), while concluding that the letter ‘n’ in the mark applied for, although very stylised, was perfectly identifiable (paragraph 21 of the contested decision). As the Board of Appeal considers that the number 7 is not perceived by the relevant public, it should then have reached the same conclusion in respect of the letter ‘n’ in the mark applied for, and should have compared ‘seven’ with ‘seve oak’ or ‘seve ork’. In any event, the applicant submits that the number 7, placed at the beginning of the earlier mark is clearly perceptible and that the marks at issue must be assessed globally. Thirdly, the applicant also claims the existence of other visual differences between the marks at issue. The letters in the earlier mark are joined to each other, whereas they are much narrower and slimmer in appearance in the sign applied for. The letter ‘s’ in the earlier mark does not have its usual curves, whereas in the mark applied for, the letter ‘e’ is depicted as rounded, without the right angles usually characterising that letter when written in upper case. Furthermore, each mark contains elements which are absent in the other mark. Thus, the earlier trade mark contains a star within the number 7, whilst the sign applied for includes the letters ‘o’ and ‘a’ or ‘r’ and ‘k’ and the representation of a target. Therefore, the marks at issue differ considerably both in their beginnings and in their overall visual impression.

65      EUIPO and the intervener consider, in essence, that the contested decision does not demonstrate any mixing of different aspects of the comparison of the signs. Paragraph 33 of that decision merely describes the sign applied for and its perception by the relevant English-speaking public, that description being equally applicable to the overall comparison of the signs and not just their visual comparison. That analysis is consistent with the judgments of 21 January 2016, Rod Leichtmetallräder v OHIM — Rodi TR (ROD) (T‑75/15, not published, EU:T:2016:26, paragraph 32); of 19 April 2016, Spirig Pharma v EUIPO (Daylong) (T‑261/15, not published, EU:T:2016:220, paragraph 37 to 39); and of 9 February 2017, ZIRO (T‑106/16, not published, EU:T:2017:67, paragraph 30), according to which consumers will try to identify the letter that the figurative element mostly represents, in particular if it ends in a word which has a meaning for those consumers.

66      The Court has previously held in the judgments of 6 October 2011, SEVEN FOR ALL MANKIND (T‑176/10, not published, EU:T:2011:577, paragraph 42), and of 8 May 2012, Tsakiris-Mallas v OHIM — Seven (7 Seven Fashion Shoes) (T‑244/10, not published, EU:T:2012:219, paragraph 51), that the presence of the common element ‘seven’ at the beginning of the marks at issue in those cases meant that it could not be denied that there was a certain degree of visual similarity between those marks.

67      The applicant also overstated the weight given by the Board of Appeal to the fact that the word ‘seven’ appeared at the beginning of the earlier mark. As follows from paragraphs 36 and 44 of the contested decision, the Board of Appeal was rather of the opinion that the presence of the word ‘seven’ in both signs, which cannot be overlooked in the overall impression that they produce, creates a certain similarity between those signs. That is particularly so since the letter ‘n’ in the mark applied for could be regarded as purely decorative or as serving to separate the elements ‘seven’ and ‘oak’. The letter ‘o’ in the form of a target-lens is descriptive of the goods covered, therefore it has no relevant impact on the perception of the consumer. Furthermore, the stylisation of the last two letters of the mark applied for is not particularly distinctive.

68      As a preliminary point, it should be noted that the mark applied for is also a composite figurative mark. Its letters ‘s’, ‘e’, ‘v’ and ‘e’ are slightly stylised and clearly recognisable. However, there is some doubt as to the symbol placed visually in the middle of the mark applied for. It may be a letter ‘n’, the ends of which underline, on the left, the letters ‘s’, ‘e’, ‘v’ and ‘e’ and, on the right, the letter ‘o’ and the start of the penultimate letter, that symbol may also be read as ‘n’ and ‘l’ written in capital letters and sharing a vertical line in the middle. It could also represent a separation of the first four and last three letters. Whilst the letter ‘o’ is also clearly recognisable, it has the appearance of four embedded circles. The penultimate letter may be read as ‘a’ or as ‘r’. As to the last letter, which is also stylised, it is undoubtedly a ‘k’.

69      It is true, as EUIPO submits, that when confronted with a mark constituted of characters with an alphanumeric appearance, consumers will try to identify those characters in such a way that the sign results in a word or a combination of words which have meaning for them (see, to that effect, judgment of 9 February 2017, ZIRO, T‑106/16, not published, EU:T:2017:67, paragraph 31). That conclusion is, however, without prejudice to the possibility of perception, by the consumers in question, of specific graphic features of the sign in question. Consequently, it is necessary to reject the applicant’s argument based on the confusion between the visual, aural and conceptual assessments.

70      As the Board of Appeal based its analysis on an English-speaking public, the majority of that public will see in the mark applied for the word ‘SEVENOAK’, namely, the juxtaposition of a word for a number and a word for a tree. However, even that public will be uncertain as to the identity of several letters and therefore as to the proper way to read the mark. The identification of the letters ‘n’ and ‘a’ will arouse the curiosity of the relevant public, with the result that they will pay considerable attention to those letters. Particularly since the letter ‘n’ is the largest letter within the mark applied for and it underlines most of the mark. Even if it is accepted that some consumers will recognise in the letter ‘o’ the shape of a camera lens, in such a way that it is descriptive of a part of the goods concerned and has a weak distinctive character, it is not, because of its position in the sign and its dimension, negligible in the overall impression that those consumers will have of that sign (see, to that effect, judgment of 13 June 2006, Inex v OHIM — Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 32). The styling of the letter ‘o’, therefore, cannot be disregarded in the comparison of the marks in question. Thus, the particular features of the writing of the letters ‘n’, ‘l’, ‘o’, ‘a’ and ‘k’ will offset the existence of a sequence of letters at the beginning of the mark, which would probably be read by the majority of the English-speaking public as ‘seven’. Therefore, it is not possible to identify in the mark applied for an element which is more distinctive than the others, or even dominant.

71      It follows that it must be held that the signs at issue share the word element ‘seven’, which is an indication of their visual similarity.

72      However, the signs at issue differ in several respects.

73      First, while the mark applied for is represented in eight grey letters which are not joined, with a slim, vertical appearance, underlined in part by the ends of the letter ‘n’, the letters ‘a’ and ‘k’, descending partly to the level of that underlining, the earlier mark is composed of six bold letters with black outlines, white on the inside, aligned at the bottom and interconnected with regard to the element ‘seven’, which slightly conceals the number 7, placed in first position. In addition, the number 7 and the letters ‘s’, ‘e’ and ‘n’ are presented in such a way that they share several parallel lines. Although neither of the fonts of the marks at issue can on its own be regarded as exceptional or particularly distinctive, they are nevertheless very different from one another.

74      Secondly, whilst the mark applied for is represented in capital letters, the earlier mark is represented in lower-case letters, except, perhaps, the letter ‘s’, which is slightly larger than the other letters.

75      Thirdly, the mark applied for does not include the number 7, which appears at the beginning of the earlier mark. However, it includes the letter ‘n’, which is much more stylised than the ‘n’ in the earlier mark, and the ending ‘oak’, which does not appear in the earlier mark.

76      Although the relevant consumers will probably not perceive all those differences, since they only rarely have the chance to make a direct comparison between the different marks but must rely on the imperfect picture of them that that they have retained (see, to that effect, judgments of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26, and of 31 January 2012, Spar v OHIM — Spa Group Europe (SPA GROUP), T‑378/09, not published, EU:T:2012:34, paragraph 20), the overall visual impression of the two marks that the relevant consumers retain will nevertheless be very different despite the presence of the word ‘seven’ in those two marks, as the applicant, in essence, submits.

77      That conclusion is not affected by the argument that it follows from the judgments of 6 October 2011, SEVEN FOR ALL MANKIND (T‑176/10, not published, EU:T:2011:577, paragraph 42), and of 8 May 2012, 7 Seven Fashion Shoes (T‑244/10, not published, EU:T:2012:219, paragraph 51) that the presence of the common element ‘seven’ at the beginning of the marks at issue in those cases meant that it could not be denied that there was a certain degree of visual similarity between those marks, so that such a similarity must exist between the marks at issue in the present case. Although the word ‘seven’ is placed at the beginning of the mark applied for, it has already been found in paragraph 63 above, that the relevant consumers will clearly notice the presence at the beginning of the earlier mark of the number 7. Moreover, the factual situation in the cases which have just been cited is different to that in the present case. In the judgment of 6 October 2011, SEVEN FOR ALL MANKIND (T‑176/10, not published, EU:T:2011:577), the number 7 at the beginning of the earlier mark was concealed to a greater extent behind the letter ‘s’ than in the present case. As regards the mark applied for, it was a word mark. Its holder could therefore use it under different graphic representations (see, to that effect, judgment of 14 April 2010, Laboratorios Byly v OHIM — Ginis (BILLY’S Products), T‑514/08, not published, EU:T:2010:143, paragraph 34), so that the figurative elements of the earlier figurative mark have, in the assessment of the likelihood of confusion between the signs at issue, only a secondary importance in relation to the word element of the earlier mark. As regards the judgment of 8 May 2012, 7 Seven Fashion Shoes (T‑244/10, not published, EU:T:2012:219), the number 7 at the beginning of the first earlier mark in that case was also more hidden behind the letter ‘s’ than in the present case. Furthermore, unlike the situation in the case which gave rise to that judgment, it is not possible, in the present case, to identify in the mark applied for an element which is more distinctive than the others.

78      Nor is the conclusion in paragraph 76 above called into question by the case-law, according to which, where a mark is composed of word and figurative elements, the word element of the mark is, in principle, more distinctive than the figurative element, because the average consumer will more readily refer to the goods in question by quoting the mark’s name rather than describing its figurative element (judgment of 9 September 2008, Honda Motor Europe v OHIM — Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 30) and by the fact that those figurative elements of the mark applied for, because of their essentially ornamental function, are of less importance than the word element ‘seven’ (see paragraphs 62 and 63 above). Several figurative elements of the mark applied for go well beyond their ornamental function, since they have a direct impact on the identification of the letters which compose the mark, and therefore on its word component. Thus, it has been held, in particular in paragraph 70 above, that the identification of the letters ‘n’ and ‘a’ arouses curiosity on the part of the relevant public, with the result that those letters strongly attract that public’s attention, and that all the more so as the letter ‘n’ was the largest letter within the mark applied for and as it underlined most of that mark. It was concluded, in the same paragraph, that the particular features of the writing of the letters ‘n’, ‘l’, ‘o’, ‘a’ and ‘k’ offset the existence of a sequence of letters at the beginning of the mark, which would probably be read by the majority of English-speaking public as ‘seven’, so that it was not possible to identify, within the mark applied for, an element that is more distinctive than the others, or even dominant.

79      It follows that the Board of Appeal made an error of assessment in finding, in paragraph 36 of the contested decision, that there was a certain degree of similarity between the marks at issue. Those marks are visually dissimilar.

–       Phonetic similarity

80      The applicant submits, as regards the relevant English-speaking public, that although the number 7 in the earlier mark might not actually be pronounced, that was not because it might be difficult to perceive, but because that public would see it rather as a reference to the word ‘seven’. In any event, the presence of the letters ‘o’, ‘a’ and ‘k’ or ‘o’, ‘r’ and ‘k’ in the mark applied for ensure a different phonetic perception.

81      EUIPO and the intervener dispute the applicant’s arguments.

82      In that regard, it was concluded in paragraph 70 above that the majority of that public will see in the mark applied for the word ‘SEVENOAK’. Whilst it is apparent from paragraph 63 above that the number 7 is clearly perceptible in the overall impression given by the earlier mark and that it plays a significant role in the overall impression produced by that earlier mark, it does not follow that English-speaking consumers will pronounce the word element ‘seven’ separately. Thus, as the applicant also seems to agree, the repetition of the same concept will mean that those consumers will pronounce the word ‘seven’ only once.

83      In those circumstances, it must be held, as did the Board of Appeal, that the marks at issue have in common the word element ‘seven’, which, pronounced identically in both signs, can create a certain similarity between them, which is not offset by the presence of the letters ‘o’, ‘a’ and ‘k’ at the end of the mark applied for.

–       The conceptual similarity

84      The applicant argues that the English-speaking public would understand the meaning of the word ‘oak’, which designates a type of tree. Thus, according to the applicant, whilst the earlier mark refers to a number, the mark applied for refers to the concept of seven trees.

85      EUIPO and the intervener dispute the applicant’s arguments.

86      In that regard, the word element ‘seven’ in the earlier mark will be understood by the relevant public as referring to the concept of the number 7. It follows that the marks at issue have in common, from a conceptual point of view, the semantic content of the word element ‘seven’. That similarity cannot be ruled out by the presence of the word ‘oak’ in the mark applied for which will be understood by the relevant public as referring to a type of tree (see paragraph 70 above). The term ‘sevenoak’, considered as a whole, does not convey any meaning which may be grasped immediately and without further clarification. However, although the applicant takes the view that the mark applied for refers to seven trees or seven oak trees, it is clear that it contains grammatical errors, in that there is no space between the two elements and no letter ‘s’ marking the plural at the end of the sign applied for. Those errors create a discontinuity between the words ‘seven’ and ‘oak’ and make it is unlikely that consumers would understand the concept relied on by the applicant.

87      Consequently, the contested decision must be upheld in so far as it acknowledged, in paragraph 41 thereof, some conceptual similarity between the marks at issue as regards the English-speaking public.

–       Overall assessment of the similarity of the signs

88      The applicant submits, in essence, that as the goods concerned are purchased following a visual inspection or advice from a specialised seller, the visual aspect is more important in the assessment of the similarity between the marks at issue than the phonetic and conceptual aspects, so that they are not similar overall.

89      On the one hand, EUIPO and the intervener consider that the Board of Appeal correctly concluded that there is some overall similarity between the marks at issue. On the other hand, the applicant did not put forward convincing arguments in support of its claim that the visual aspect of the sign plays a greater role when purchasing the goods in question. It was not established that optical lenses were purchased by way of self-service. The applicant admits that it is possible that consumers would seek the opinion of a specialist when purchasing the goods in question, which necessarily involves verbal communication.

90      In that regard, admittedly the visual, phonetic and conceptual aspects of the signs at issue do not always have the same weight. It is appropriate to examine the objective conditions under which the marks may be present on the market. The extent of the similarity or difference between the signs may depend, in particular, on the inherent qualities of the marks or the conditions under which the goods or services covered by the marks at issue are marketed. If the goods covered by the marks at issue are usually sold in self-service stores, where consumers choose the goods themselves, and must therefore rely primarily on the image of the trade mark applied to the goods, the visual similarity between the signs will as a general rule be more important. If, on the other hand, the goods covered are primarily sold orally, greater weight will usually be attributed to any phonetic similarity between the signs (see judgment of 21 February 2013, Esge v OHIM — De’Longhi Benelux (KMIX), T‑444/10, not published, EU:T:2013:89, paragraph 36 and the case-law cited).

91      The degree of phonetic similarity between two marks is of less importance in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives visually the mark designating those goods (judgment of 21 February 2013, KMIX, T‑444/10, not published, EU:T:2013:89, paragraph 37 and the case-law cited).

92      In the present case, there is nothing to suggest that the applicant’s arguments on the channels and methods for marketing the goods concerned are incorrect. The goods covered by the signs at issue can in fact be purchased both in specialised shops and in supermarkets and on the internet and, when making the purchase, customers may be assisted by qualified sales personnel.

93      Therefore, even though the purchase of the goods at issue may be made on an oral recommendation or following advice given orally, the marks at issue will generally be perceived visually prior to purchase. Furthermore, that oral communication will take place, where necessary, with qualified sales personnel who are capable of informing customers about the various brands (see, to that effect, judgment of 21 February 2013, KMIX, T‑444/10, not published, EU:T:2013:89, paragraph 38, and of 7 March 2018, Equivalenza Manufactory v EUIPO — ITM Entreprises (BLACK LABEL BY EQUIVALENZA), T‑6/17, not published, EU:T:2018:119, paragraph 51). That type of oral recommendation cannot therefore be treated in the same way as an oral request for the product within the meaning of the case-law referred to in paragraph 90 above, or within the meaning of the judgment of 7 October 2015, Panrico v OHIM — HDN Development (Krispy Kreme DOUGHNUTS) (T‑534/13, not published, EU:T:2015:751, paragraph 55). Such an oral request may include, inter alia, an order in a restaurant or bar.

94      Although the intervener claims that the applicant has not established that optical lenses were purchased over the counter, it is clear from its action against the Opposition Division’s decision that it submitted, and therefore accepted, that optical lenses could be bought over the counter.

95      It follows, as the applicant submits, that in the present case the visual aspect plays a greater role in the assessment of the similarity of the marks at issue. In those circumstances, the differences in the respective visual perception of the marks outweigh the similarities found at the phonetic and conceptual levels, so that the relevant public will not have the impression that the marks are similar.

96      Furthermore, whilst the intervener considers, in essence, referring to the judgments of 22 May 2012, SEVEN SUMMITS (T‑179/11, not published, EU:T:2012:254, paragraphs 26 and 36), and of 8 June 2017, Groupe Léa Nature v EUIPO — Debonair Trading Internacional (SO’BiO ētic) (T‑341/13 RENV, not published, EU:T:2017:381, paragraph 44), that the similarity between the marks at issue results also from the fact that the first element in the earlier mark is fully included in the mark applied for and is also at the beginning of that mark, it is sufficient to point out that it has already been concluded, in paragraphs 62 and 63 above, that the relevant public will clearly notice in the earlier mark that there is a number 7 before the word ‘seven’.

 The existence of a likelihood of confusion

97      The applicant argues that taking into account the rather high level of attention of the relevant public, the visual examination of the goods or the consultation of sales personnel prior to purchase, all the differences between the signs at issue offset the presence in both of the word ‘seven’, so that there is no likelihood of confusion between the marks at issue despite the identity of the goods in question.

98      According to EUIPO and the intervener, as regards the assessment of the likelihood of confusion, the fact that the relevant public is more attentive to the identity of the producer or supplier of goods that it wishes to buy, does not mean that it will examine the brand before it in any detail or that it will carefully compare it to another mark. Even the relevant public only rarely has the chance to make a direct comparison between the various marks but must rely on the imperfect picture of them that it has retained, as is apparent from the judgment of 16 December 2010, Longevity Health Products v OHIM — Gruppo Lepetit (RESVEROL) (T‑363/09, not published, EU:T:2010:538, paragraph 33). In the present case, the presence of the word ‘seven’ in both marks, creating a similarity at all levels, could lead the public to believe that the identical goods that those marks designate come from the same undertaking.

99      In addition, under the principle of interdependence of relevant factors in the context of the assessment of the existence of confusion, differences in the comparison of the marks are offset by the identity of the goods in question.

100    In that regard, although it is correct that under the principle of interdependence of relevant factors, in particular the similarity between the trade marks and between the goods or services covered, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (see paragraphs 31 to 33 above), the Court of Justice has held that, for the purposes of applying Article 8(l)(b) of Regulation No 207/2009, the likelihood of confusion presupposes both that the mark applied for and the earlier mark are identical or similar, and that the goods or services covered in the application for registration are identical or similar to those in respect of which the earlier mark was registered. Those conditions are cumulative (see judgment of 13 September 2007, II Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 48 and the case-law cited).

101    It was concluded in paragraph 95 above that, in so far as the visual aspect played, in the present case, a greater role in the assessment of the similarity of the marks at issue, the differences in the respective visual perception of the marks outweighed the similarities found at the phonetic and conceptual levels, so that the relevant public would not have had the impression that the marks were similar.

102    Therefore, in the absence of a minimum degree of similarity, the principle of interdependence does not apply in the present overall assessment of the likelihood of confusion (see, to that effect, judgment of 13 September 2007, Il Ponte Finanziaria v OHIM, C‑234/06 P, EU:C:2007:514, paragraph 49 to 51).

103    Thus, contrary to the finding of the Board of Appeal, there is no likelihood of confusion between the marks at issue.

104    Even if it were to be held, contrary to what was held in paragraph 79 above, that the marks at issue are similar to a low degree, it can be concluded — having regard to the predominance of the visual aspect in the present case and the very many differences found which would not escape, in their entirety, the relevant public which is reasonably well informed and reasonably observant and circumspect — that there is only a very low degree of overall similarity.

105    Despite the low degree of similarity which may exist between the marks in question by reason of the common element ‘seven’, the differentiating elements between the marks are such that the relevant public will not be misled as to the commercial origin of the goods in question (see, to that effect, judgment of 17 April 2018, Şölen Çikolata Gıda Sanayi ve Ticaret v EUIPO — Zaharieva (BOBO cornet), T‑648/16, not published, EU:T:2018:194, paragraphs 96 and 97). The identity between the goods at issue is offset by a very low degree of similarity between the signs at issue (judgment of 28 November 2017, Laboratorios Ern v EUIPO — Sharma (NRIM Life Sciences), T‑909/16, not published, EU:T:2017:843, paragraph 46).

106    It follows that the contested decision must be annulled and the action dismissed as to the remainder.

 Costs

107    Under Article 134 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. Where there is more than one unsuccessful party the Court is to decide how the costs are to be shared. Where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.

108    Since EUIPO and the intervener have been unsuccessful in their main heads of claim, first, EUIPO must be ordered to bear its own costs and to pay eight tenths of the costs incurred by the applicant, secondly, the intervener must be ordered to bear its own costs and to pay a tenth of the costs incurred by the applicant and, thirdly, the applicant must be ordered to bear a tenth of its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber),

hereby:

1.      Annuls the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 March 2017 (Case R 1326/2016-1);

2.      Dismisses the action as to the remainder;

3.      Orders EUIPO to bear, in addition to its own costs, eight tenths of the costs incurred by Shenzhen Jiayz Photo Industrial Ltd;

4.      Orders Seven SpA to bear, in addition to its own costs, a tenth of the costs incurred by Shenzhen Jiayz Photo Industrial;


5.      Orders Shenzhen Jiayz Photo Industrial to bear a tenth of its own costs.


Kanninen

Schwarcz

Iliopoulos

Delivered in open court in Luxembourg on 21 November 2018.


E. Coulon

 

      H. Kanninen

Registrar

 

President


*      Language of the case: English.