JUDGMENT OF THE GENERAL COURT (First Chamber)
11 October 2023 (*)
(EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark PASCELMO – Earlier EU word mark PASCOE – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑435/22,
Pascoe pharmazeutische Präparate GmbH, established in Gießen (Germany), represented by M. Kinkeldey, S. Brandstätter, S. Clotten and C. Schmitt, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by M. Eberl, J. Ivanauskas and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Novartis Pharma AG, established in Basle (Switzerland),
THE GENERAL COURT (First Chamber),
composed of D. Spielmann, President, M. Brkan (Rapporteur) and T. Tóth, Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the written part of the procedure,
further to the hearing on 20 June 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Pascoe pharmazeutische Präparate GmbH, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 4 May 2022 (Case R 1890/2021-2) (‘the contested decision’).
Background to the dispute
2 On 19 December 2019, the intervener, Novartis Pharma AG, obtained international registration No 1516387 designating the European Union from the International Bureau of the World Intellectual Property Organization (WIPO). The mark which is covered by the international registration is the word sign PASCELMO.
3 The mark applied for covers goods in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Pharmaceutical preparations’.
4 On 22 June 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5 The opposition was based on the EU word mark PASCOE, which was registered on 20 September 2017 under the number 16 638 611 and covers goods in Class 5 corresponding to the following description: ‘Medicine; sanitary preparations for medical purposes; dietetic preparations adapted for medical use; food supplements for medical purposes; food supplements, not for medical purposes, with a base of proteins and/or fats and/or fatty acids, partly with added vitamins and/or minerals and/or trace elements and/or flavourings and/or sweeteners, either singly or in combination; food supplements, not for medical purposes, with a base of carbohydrates and/or fibres, partly with added vitamins and/or minerals and/or trace elements and/or flavourings and/or sweeteners, either singly or in combination; veterinary preparations; pharmaceuticals; dietary supplements and dietetic preparations’.
6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7 On 15 September 2021, the Opposition Division rejected the opposition on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
8 On 10 November 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9 By the contested decision, the Board of Appeal dismissed the appeal. First of all, it found that the goods concerned were aimed at the general public and at a public of professionals in the field of healthcare throughout the European Union, with the result that the likelihood of confusion had to be assessed from the point of view of the end consumer who had a higher-than-average level of attention. It pointed out that those goods were identical and that the signs PASCOE and PASCELMO were distinctive, because they did not have any meaning for most of the relevant public. Next, regarding the comparison of those signs, it stated that they were visually similar to a low degree and phonetically similar to a low or very low degree. From a conceptual standpoint, it stated that the comparison of the signs at issue was impossible for the part of the public for which they had no meaning and that those signs were not similar for the part of the public for which the earlier sign PASCOE had a meaning. Lastly, in view of the relevant public’s particularly high level of attention, the Board of Appeal found that the differences between those signs were sufficient for them to convey different overall impressions, with the result that it concluded that there was no likelihood of confusion.
Forms of order sought
10 The applicant claims, in essence, that the Court should:
– annul the contested decision;
– order EUIPO and the intervener to pay the costs.
11 EUIPO contends, in essence, that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
12 In support of the action, the applicant relies on two pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001 and, secondly, infringement of the first sentence of Article 94(1) of Regulation 2017/1001.
13 Since the second plea seeks a declaration that there has been infringement of the obligation to state reasons and the first plea relates to the substantive legality of the contested decision, it is appropriate to examine the second plea first.
The second plea, alleging infringement of the first sentence of Article 94(1) of Regulation 2017/1001
14 By its second plea, the applicant submits, in essence, that the Board of Appeal infringed its obligation to state reasons pursuant to the first sentence of Article 94(1) of Regulation 2017/1001 in so far as it defined the level of attention of the relevant public in a contradictory manner. The applicant does not dispute that the relevant public consists of the general public and of professionals and it does not call into question the Board of Appeal’s approach of assessing the likelihood of confusion from the point of view of the end consumer. However, it submits that the Board of Appeal found that the level of attention of the end consumer was ‘higher-than-average’ before concluding that it was ‘particularly high’. According to the applicant, a higher-than-average level of attention is lower than a particularly high level of attention and consequently the Board of Appeal’s assessment is contradictory.
15 EUIPO disputes the applicant’s arguments.
16 It must be borne in mind that the first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. It has two purposes: (i) to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights and (ii) to enable the Courts of the European Union to exercise their power to review the legality of the decision. It is not necessary for the reasoning to address all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 14 September 2022, Sushi&Food Factor v EUIPO (READY 4YOU), T‑367/21 and T‑432/21, not published, EU:T:2022:552, paragraph 47 and the case-law cited).
17 Furthermore, it must be borne in mind that a claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the decision are inaccurate, the latter plea being a matter to be reviewed by the Court when it examines the substance of that decision (see, to that effect, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 67, and of 23 September 2015, Mechadyne International v OHIM (FlexValve), T‑588/14, not published, EU:T:2015:676, paragraph 59).
18 It is apparent from the case-law that the terms ‘high’ and ‘heightened’ and the expression ‘higher-than-average’ are used as synonyms. Both a ‘high level of attention’ and a ‘higher-than-average level of attention’ indicate a heightened level of attention on the part of the public (see judgment of 2 March 2022, UGA Nutraceuticals v EUIPO – Vitae Health Innovation (VITADHA), T‑149/21, not published, EU:T:2022:103, paragraphs 27 and 28 and the case-law cited).
19 In the present case, it must be pointed out that, in the contested decision, the Board of Appeal found, first, that the likelihood of confusion had to be assessed from the point of view of the end consumer or non-professional public which had a higher-than-average level of attention and, secondly, that the relevant public would display a ‘particularly high’ level of attention.
20 The Board of Appeal’s assessment that the end consumer or the non-professional public has a higher-than-average level of attention must not be read in isolation. In the contested decision, the Board of Appeal also found that the level of attention of the end consumer was heightened in accordance with the settled case-law relating to goods in Class 5 (see judgment of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN), T‑331/09, EU:T:2010:520, paragraph 26 and the case-law cited).
21 In that regard, it must be pointed out, first, that a heightened level of attention is, in any event, higher than an average level of attention and is therefore at least higher than average. Secondly, a particularly high level of attention is necessarily higher than an average level of attention and is, by definition, higher than average.
22 Although EUIPO acknowledged, at the hearing, that there was some divergence between the Board of Appeal’s assessments that the level of attention of the end consumer is ‘higher-than-average’ and ‘particularly high’, those assessments are not, contrary to what the applicant claims, contradictory, since the level of attention of that public is, in any event, higher than an average level of attention.
23 It follows from the foregoing that there is no contradiction in the Board of Appeal’s reasoning relating to the level of attention of the relevant public. The second plea in law must therefore be rejected.
The first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
24 The applicant submits that there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. It disputes, in essence, the Board of Appeal’s assessments regarding the level of attention of the relevant public, the similarity of the signs and the global assessment of the likelihood of confusion.
25 EUIPO disputes the applicant’s arguments.
26 Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
27 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).
28 For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
29 In the present case, since the applicant does not dispute that the goods concerned are identical and that the distinctiveness of the earlier mark must be regarded as normal, it is necessary to examine only its arguments relating to the relevant public’s level of attention, the comparison between the signs at issue and the likelihood of confusion.
The relevant public’s level of attention
30 The Board of Appeal found that the relevant territory was that of the European Union and that the goods concerned were aimed at the general public and at a professional public with specific professional knowledge or expertise in the field of healthcare for human beings. It found that the level of attention of the professional public in the medical field was high and, since the goods at issue affected the state of health, that the level of attention was heightened for the general public.
31 The applicant submits that the level of attention of the end consumer applied by the Board of Appeal is too high. According to the applicant, in view of the broad scope of the mark applied for, which covers all kinds of pharmaceutical preparations, the level of attention is only average. It argues that ‘pharmaceutical preparations’ encompass all sorts of pharmaceutical preparations, including products issued with or without a prescription, general and specific products and stronger or weaker products and that they thus also cover lozenges sold in drugstores. For that type of goods, the level of attention of the relevant public cannot, in its view, be higher than that which that public displays as regards foodstuffs.
32 EUIPO disputes those arguments.
33 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).
34 It is apparent from the case-law, first, that medical professionals have a high level of attention when prescribing medicines. Secondly, with regard to end consumers, it is apparent from the case-law that, in cases where pharmaceutical products are sold without a prescription, it must be assumed that those goods will be of concern to consumers who are deemed to be reasonably well informed, observant and circumspect, since those goods affect their state of health, and that those consumers are less likely to confuse different versions of such goods. Furthermore, even assuming that a medical prescription is mandatory, consumers are likely to have a high level of attention when the goods in question are prescribed, in the light of the fact that those goods are pharmaceutical products. Thus medicines, whether or not issued on prescription, can be regarded as receiving a heightened level of attention on the part of consumers who are reasonably well informed and reasonably observant and circumspect (see judgment of 15 December 2010, TOLPOSAN, T‑331/09, EU:T:2010:520, paragraph 26 and the case-law cited).
35 That finding applies even where pharmaceutical preparations are available to consumers over the counter, since those goods relate to their health (see, to that effect, judgment of 15 March 2012, Cadila Healthcare v OHIM – Novartis (ZYDUS), T‑288/08, not published, EU:T:2012:124, paragraph 36).
36 The same is true of dietetic products in general and of dietary supplements, which are not strictly speaking medicines, but nevertheless constitute goods in the field of health, since in general they are intended to improve health and may be regarded as products to which consumers who are reasonably well informed and reasonably observant and circumspect pay a heightened level of attention (judgment of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 28).
37 In the present case, as regards the applicant’s argument that the goods concerned are all kinds of pharmaceutical preparations, encompassing, inter alia, lozenges sold by means of self-service, it must be stated that the goods concerned, namely pharmaceutical preparations, although they are capable of covering a large range of goods, are goods in Class 5. As is apparent from the case-law which has been referred to in the preceding paragraphs, the general public’s attention with regard to that type of goods is heightened, even if they are sold by means of self-service.
38 Consequently, it must be held that, in the light of the goods concerned, the Board of Appeal was right in finding, in paragraphs 17 and 18 of the contested decision, that the end consumer was likely to display a heightened level of attention.
The comparison of the signs
39 The applicant does not dispute the Board of Appeal’s assessment relating to the conceptual similarity of the signs at issue, but complains that it made errors in the assessment of the visual and phonetic similarity of those signs.
40 The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
– The visual comparison of the signs at issue
41 The Board of Appeal found that there was a low degree of visual similarity between the earlier mark PASCOE and the mark applied for PASCELMO. It found, first of all, that the signs at issue coincided in their first four letters, namely the letters ‘p’, ‘a’, ‘s’ and ‘c’, and that they differed with regard to the remaining letters in those signs. Next, it pointed out that the difference in length, since the earlier mark comprised six letters and the mark applied for comprised eight letters, and the difference in the endings of the signs at issue would not escape the consumer’s attention. Lastly, it stated that the fact that the parts of those signs which differed contained letters in common, namely the letters ‘o’ and ‘e’, was rather immaterial given that those letters were placed in a different position and in reverse order and given that they were, moreover, next to each other in the earlier mark, whereas they were separated by two other letters in the mark applied for.
42 The applicant disputes the Board of Appeal’s assessments regarding the visual comparison of the signs at issue. It submits that they are visually similar to at least an average degree. It argues that there is a visual ‘overlap’ in those signs, because they begin with the same letters, namely the four letters ‘p’, ‘a’, ‘s’ and ‘c’, to which the consumer pays more attention since they are situated at the beginning of the signs. Furthermore, it takes the view that that overlap is reinforced by the highly similar endings ‘o’ and ‘oe’. It submits that the fact that the signs at issue are autonomous word marks which do not contain any additional terms and figurative element and that they consist only of one single word reinforces the predominance of the overlaps situated at the beginning and ending of those signs. Furthermore, it disputes the Board of Appeal’s assessment that the consumer will perceive the differences at first glance and takes the view that that line of argument amounts to claiming that the slight difference arising from the letters ‘e’, ‘l’ and ‘m’ in the middle of the mark applied for offsets the similarity of those signs, even though both signs have no conceptual meaning.
43 EUIPO disputes the applicant’s arguments.
44 It must be borne in mind that it is true that it is apparent from the case-law that the consumer is deemed generally to pay greater attention to the beginning of a mark than to its end, as the first part of a mark normally has a greater impact, both visually and phonetically, than the final part (see judgment of 4 May 2022, Bodegas Beronia v EUIPO – Bodegas Carlos Serres (ALEGRA DE BERONIA), T‑298/21, not published, EU:T:2022:275, paragraph 45 and the case-law cited).
45 However, that consideration cannot apply in all cases and cannot, in any event, cast doubt on the principle that the assessment of the similarity of the marks must take into account the overall impression which they create. Likewise, there is no basis for the proposition that the average consumer who is reasonably well informed and reasonably observant and circumspect will systematically disregard the second part of the word element of a mark to the point of remembering only the first part (see judgment of 4 May 2022, ALEGRA DE BERONIA, T‑298/21, not published, EU:T:2022:275, paragraphs 46 and 47 and the case-law cited).
46 Furthermore, it is apparent from the case-law, in respect of word marks which are relatively short, that the central elements are as important as the elements at the beginning and end of the sign (judgment of 20 April 2005, Krüger v OHIM – Calpis (CALPICO), T‑273/02, EU:T:2005:134, paragraph 39).
47 In the present case, it must be pointed out that the signs at issue each consist of a single word element, namely ‘PASCOE’ with regard to the earlier mark and ‘PASCELMO’ with regard to the mark applied for. Furthermore, those marks have their first four letters in common, namely the letters ‘p’, ‘a’, ‘s’ and ‘c’.
48 Contrary to what the applicant claims, the importance of those first four identical letters at the beginning of the two marks at issue is not reinforced by the fact that both of those marks consist solely of a single word element. The examination of the similarity of those marks must take into account the overall impression which they create.
49 In that regard, it must be stated, as the Board of Appeal found, that there are a number of visual differences between the signs at issue. First, they differ in terms of length, because the earlier mark consists of six letters and the mark applied for consists of eight letters. Secondly, those signs do not have the same ending. Thirdly, although the letters ‘o’ and ‘e’ are present in both of the signs at issue, those letters do not occupy the same position and are placed in reverse order, which reduces their visual impact. Fourthly, the mark applied for contains the two additional letters, ‘l’ and ‘m’, in the central part of that mark.
50 However, the differences referred to above are particularly important because the word elements under comparison are short, since they only consist of six and eight letters, with the result that the additional letters, ‘l’ and ‘m’, in the centre of the mark applied for have an undeniable influence on the impression created by that mark.
51 It must be stated, as the Board of Appeal found in paragraph 26 of the contested decision, that the difference in length of the signs at issue, due to the additional letters, ‘l’ and ‘m’, in the mark applied for and the difference in the endings of those signs, will not escape the consumer’s attention and will contribute to the overall impression created by the mark applied for.
52 Contrary to what the applicant claims, that assessment on the part of the Board of Appeal results from a taking into account of the overall impression created by the signs at issue. The fact that the first four letters ‘p’, ‘a’, ‘s’ and ‘c’, which are at the beginning of the two signs at issue, are identical is offset by the differences which were found to exist in their central and final parts.
53 Consequently, the applicant’s argument that the differences arising from the letters ‘e’, ‘l’ and ‘m’ in the central part of the mark applied for which were found to exist by the Board of Appeal do not offset the visual similarity of the signs at issue is based on a misreading of the contested decision. In stating, in paragraph 26 of the contested decision, that those signs would be ‘perceived at first glance, without any extra effort’, the Board of Appeal wished to point out that those signs contained differences in terms of length and ending which influenced the overall impression created by them.
54 It follows from the foregoing that the applicant has not established that the Board of Appeal made an error of assessment in finding that the signs at issue were visually similar to a low degree.
– The phonetic comparison
55 The Board of Appeal found that the signs at issue were phonetically similar to a low degree as regards the English-speaking and German-speaking publics and phonetically similar to a very low degree for the other consumers comprising the relevant public. As regards, in the first place, consumers who understand, in particular, Dutch, Spanish, Italian, Polish, Portuguese and French, the Board of Appeal found that the pronunciation of the letter ‘c’ differed and that the signs at issue coincided at most in their first syllable. As regards, in the second place, the English-speaking public and part of the German-speaking public, the Board of Appeal found that, for that public, the last letter, ‘e’, of the earlier mark was silent and that that mark would be pronounced as only two syllables. For that public, the Board of Appeal pointed out that the signs at issue could coincide in the sound of the letters ‘p’, ‘a’, ‘s’ and ‘c’ at the beginning of those signs and in the sound of the last letter, ‘o’, but it found that, in any event, those signs had a different number of syllables, a different vowel sequence and a different rhythm and intonation.
56 The applicant disputes the Board of Appeal’s assessments and submits that the signs at issue are phonetically similar to at least an average degree. It focuses its arguments on the assessment of the phonetic similarity with regard to the English-speaking and German-speaking publics. In that regard, it submits that, given the Board of Appeal’s finding that those signs may coincide in the sound of the letters ‘p’, ‘a’, ‘s’ and ‘c’ at the beginning of those signs and of the last letter, ‘o’, the Board of Appeal erred in finding that there was a low degree of phonetic similarity, since the consumer attaches more importance to the beginning of a mark. The applicant also submits that the different number of syllables, different vowel sequence and different rhythm and intonation pointed out by the Board of Appeal, are not relevant for the purpose of assessing the phonetic similarity of those signs.
57 EUIPO disputes the applicant’s arguments.
58 It is important to point out at the outset that it is sufficient, in order for registration of a trade mark to be refused, that a likelihood of confusion exists only for part of the relevant public (see, to that effect, judgment of 18 September 2012, Scandic Distilleries v OHIM – Bürgerbräu, Röhm & Söhne (BÜRGER), T‑460/11, not published, EU:T:2012:432, paragraph 52 and the case-law cited). Consequently, since the applicant focused its arguments on the assessment of the phonetic similarity with regard to the English-speaking and German-speaking publics, the examination of the phonetic comparison will relate only to those publics.
59 In the present case, as regards the English-speaking and German-speaking publics, it must be held that, although the signs at issue coincide in their initial syllable, ‘pas’, and in the sound of their last letter, ‘o’, the fact remains, as the Board of Appeal found, that those signs contain differences.
60 First, the signs at issue have a different number of syllables, because the earlier mark consists of two syllables whereas the mark applied for has three syllables. Secondly, only the first syllable in those signs is identical, as the other syllables will be pronounced differently. The earlier mark contains only a second syllable, which is pronounced as [ko], whereas the mark applied for continues with the syllable pronounced as [kel], which may also be pronounced as [sel], and the syllable formed by the letters ‘m’ and ‘o’. Thirdly, those differences and the difference in length between those signs confer a different rhythm and intonation on them.
61 Furthermore, in accordance with the case-law cited in paragraph 46 above, the difference arising from the sound ‘elm’, which is in the central part of the mark applied for, is particularly important because the signs at issue are short.
62 Those considerations are not called into question by the judgments of 4 March 2010, Mundipharma v OHIM – ALK-Abelló (AVANZALENE) (T‑477/08, not published, EU:T:2010:72), and of 3 June 2015, Pensa Pharma v OHIM – Ferring and Farmaceutisk Laboratorium Ferring (PENSA PHARMA and pensa) (T‑544/12 and T‑546/12, not published, EU:T:2015:355), on which the applicant relies. In that regard, it must be noted that, although the Court held in those judgments that a different number of syllables could lead to an average degree of phonetic similarity, the applicant has not substantiated its claims that those cases are similar to the present case.
63 Furthermore, it must be stated, as observed by EUIPO, that the present case differs from the cases referred to above. First, in contrast to the signs at issue in the judgment of 3 June 2015, PENSA PHARMA and pensa (T‑544/12 and T‑546/12, not published, EU:T:2015:355), the last syllable in the earlier mark is not identical to that in the mark applied for, since the earlier mark ends in the syllable ‘ko’ and the mark applied for ends in the syllable ‘mo’. Secondly, unlike the signs at issue in the judgment of 4 March 2010, AVANZALENE (T‑477/08, not published, EU:T:2010:72), the earlier mark is not fully included in the mark applied for.
64 Consequently, the Board of Appeal was right, on the basis of the overall impression created by the signs at issue, in finding that there were differences between them which outweighed the elements of similarity and in concluding that there was a low degree of phonetic similarity for the English-speaking and German-speaking publics.
The likelihood of confusion
65 The Board of Appeal found that there was no likelihood of confusion as a result of a global assessment which took into account the low degree of visual similarity and the low or very low degree of phonetic similarity between the signs at issue, the lack of any conceptual similarity and the level of attention of the relevant public. It found that the differences between those signs were sufficient for those signs to convey different overall impressions, with the result that, notwithstanding the fact that the goods concerned were identical, there was no likelihood of confusion on the part of the relevant public.
66 The applicant disputes the Board of Appeal’s assessment. According to the applicant, there is a likelihood of confusion in the light of the average degree of visual and phonetic similarity between the signs at issue and the average or at most higher-than-average level of attention of the relevant public.
67 EUIPO disputes the applicant’s arguments.
68 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).
69 First, it must be borne in mind that the applicant does not dispute the Board of Appeal’s assessments that, on the one hand, the distinctiveness of the earlier mark must be regarded as normal and, on the other hand, the goods concerned are identical.
70 Secondly, as regards the level of attention of the relevant public, it is apparent from paragraph 38 above that the Board of Appeal was right in finding that the end consumer was likely to display a heightened level of attention, since the goods concerned, which are in Class 5, affected human health.
71 Thirdly, it is apparent from paragraphs 54 and 64 above that the Board of Appeal was right in finding that the signs at issue were visually similar only to a low degree and phonetically similar only to a low or very low degree. The Board of Appeal’s assessments regarding the conceptual similarity have not been disputed.
72 Consequently, it must be pointed out that, following a global assessment and in the light of all of the factors referred to above, the Board of Appeal was right in concluding that the differences between the signs at issue were sufficient for those signs to convey different overall impressions, with the result that, notwithstanding the fact that the goods concerned were identical, there was no likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, on the part of the relevant public.
73 In view of all of the foregoing considerations, the first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected. As a result, the action must be dismissed in its entirety.
Costs
74 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.
75 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders Pascoe pharmazeutische Präparate GmbH to pay the costs.
Delivered in open court in Luxembourg on 11 October 2023.
V. Di Bucci | | S. Papasavvas |