JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
31 January 2024 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark Feed. – Earlier EU figurative mark The Feed. – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑26/23,
Feed SA, established in Paris (France), represented by V. Bouchara and A. Maier, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by M. Eberl and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
The Feed.com, Inc., established in Broomfield, Colorado (United States), represented by J. Lacker, lawyer,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse (Rapporteur) and B. Ricziová, Judges,
Registrar: R. Ūkelytė, Administrator,
having regard to the written part of the procedure,
further to the hearing on 11 October 2023,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Feed SA, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 3 November 2022 (Case R 552/2022-5) (‘the contested decision’).
Background to the dispute
2 On 17 July 2019, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3 The mark applied for covered goods and services in Classes 29, 30, 32 and 43 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, for each of those classes, to the following description:
– Class 29: ‘Meal replacement bars based on nuts, pulses, walnuts, oil seeds, fruits, powders and beverages based on milk and milk substitutes, pulses, oil seeds; Liquid, solid or powdered meal replacements based on fruit, vegetables, milk and milk substitutes, mushrooms, pulses, cereals, nuts, walnuts, oil seeds; Freeze-dried meals, namely freeze-dried vegetables, Freeze-dried fruit, mushrooms, freeze-dried; Non-medicinal meal replacements based on fruit, vegetables, milk and milk substitutes, mushrooms, pulses, cereals, nuts, oil seeds, walnuts’;
– Class 30: ‘Meal replacement bars, powders and drinks; Liquid, solid or powdered meal replacements; Freeze-dried dishes with flour as the main ingredient; Non-medicated meal replacements based on chocolate, cereals, coffee, tea, food flavourings, starch, starch, aromatic preparations for food, spices, flour, yeast; Meal replacement bars, powders and beverages based on chocolate, cereals, coffee, tea, food flavourings, starch, starch, aromatic preparations for food, spices, flour, yeast; Liquid, solid or powdered meal replacements based on chocolate, cereals, coffee, tea, food flavourings, starch, starch, aromatic preparations for food, spices, flour, yeast’;
– Class 32: ‘Concentrates and powders for the preparation of non-alcoholic beverages; Concentrates for making fruit drinks; Preparations for making beverages; Energy drinks; Nutritionally fortified beverages’;
– Class 43: ‘Meal planning services in digital form, accessible through the internet; Meal replacement preparation’.
4 On 5 February 2020, Participant Sports LLC, the predecessor in law to the intervener, The Feed.com, Inc., filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
5 The opposition was based on the following trade marks:
– the EU figurative mark reproduced below, which was registered on 25 January 2020 under number 18 081 211 and covers goods and services in Classes 9, 18, 21, 25, 35, 39 and 42 corresponding, in respect of the services in Class 35, to the following description: ‘Computerized online ordering services and online retail store services of and connected with the sale of meal replacement foods, nutritional bars, gels, energy foods, coffee, energy drinks, energy drink powders, energy drink mixes, drink mixes, protein, nutritional supplements and beverages, mixes, supplements and beverages, beverages (in powdered or dried form), chamois cream, shaving cream, embrocation cream, pain relieving and recovery lotion, sunscreen, cook books, sports bottles, clothing, hats, foam rollers, therapy rollers, therapeutic rollers, sleeves for therapeutic rollers, carrying cases for therapeutic rollers, salt stick dispensers, and vitamins; online retail store services in connection with meal replacement foods, nutritional bars, gels, energy foods, coffee, energy drinks, energy drink powders, energy drink mixes, drink mixes, protein, nutritional supplements and beverages, mixes, supplements and beverages, beverages (in powdered or dried form), chamois cream, shaving cream, embrocation cream, pain relieving and recovery lotion, sunscreen, cook books, sports bottles, clothing, hats, foam rollers, therapy rollers, therapeutic rollers, sleeves for therapeutic rollers, carrying cases for therapeutic rollers, salt stick dispensers, and vitamins; sales of meal replacement foods, nutritional bars, gels, energy foods, coffee, energy drinks, energy drink powders, energy drink mixes, drink mixes, protein, nutritional supplements and beverages, mixes, supplements and beverages, beverages (in powdered or dried form), chamois cream, shaving cream, embrocation cream, pain relieving and recovery lotion, sunscreen, cook books, sports bottles, clothing, hats, foam rollers, therapy rollers, therapeutic rollers, sleeves for therapeutic rollers, carrying cases for therapeutic rollers, salt stick dispensers, and vitamins; computerized online ordering services; subscription based sales of food; subscription based sales of beverages (in powdered or dried form); subscription based food order fulfillment services namely retail services connected with the sale of subscription boxes containing food; retail services connected with the sale of subscription boxes containing food; clerical and administrative services for the taking and processing of subscription based food orders; subscription based beverage (in powdered or dried form) order fulfillment services namely retail services connected with the sale of subscription boxes containing beverage (in powdered or dried form); retail services connected with the sale of subscription boxes containing beverages (in powdered or dried form); clerical and administrative services for the taking and processing of subscription based beverages (in powdered or dried form) orders; automatic placement and retail services connected with the sale of subscription boxes containing meal replacement foods, nutritional bars, gels, energy foods, coffee, energy drinks, energy drink powders, energy drink mixes, drink mixes, protein, nutritional supplements and beverages, beverages (in powdered or dried form), chamois cream, shaving cream, embrocation cream, pain relieving and recovery lotion, sunscreen, cook books, sports bottles, clothing, hats, foam rollers, therapy rollers, therapeutic rollers, sleeves for therapeutic rollers, carrying cases for therapeutic rollers, salt stick dispensers, and vitamins; subscription services for meal replacement foods, nutritional bars, gels, energy foods, coffee, energy drinks, energy drink powders, energy drink mixes, drink mixes, protein, nutritional supplements and beverages, beverages (in powdered or dried form), chamois cream, shaving cream, embrocation cream, pain relieving and recovery lotion, sunscreen, cook books, sports bottles, clothing, hats, foam rollers, therapy rollers, therapeutic rollers, sleeves for therapeutic rollers, carrying cases for therapeutic rollers, salt stick dispensers, and vitamins; providing consumer product information relating to food or drink products’;
– the EU word mark THE FEED, which was registered on 9 June 2014 under number 12 392 651 and covers, inter alia, services in Classes 35 and 39.
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 2 February 2022, the Opposition Division upheld the opposition and rejected the trade mark application in its entirety.
8 On 1 April 2022, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9 By the contested decision, the Board of Appeal dismissed the appeal. More specifically, it found that a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, had been established, taking into account, inter alia, the similarity of the goods and services covered, respectively, by the EU figurative mark The Feed. and by the mark applied for and the fact that those marks were visually and phonetically similar to a high degree and were conceptually identical.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO and the intervener to pay the costs, including the costs of the proceedings before EUIPO.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in the event that an oral hearing is convened.
12 The intervener contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
13 In support of its action, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001, in that the Board of Appeal erred in finding that there was a likelihood of confusion between the marks at issue.
14 EUIPO and the intervener dispute the applicant’s line of argument.
15 As a preliminary point, it should be noted that, although the applicant refers to the EU word mark THE FEED, the Board of Appeal did not examine whether there was a likelihood of confusion with regard to that mark. Therefore, the applicant’s arguments in that regard must be rejected as ineffective.
16 Next, it should be borne in mind that, under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
17 The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
The relevant public
18 The Board of Appeal found that the relevant public consisted, inter alia, of the general public in the European Union, whose level of attention was average, as regards the goods in Classes 29, 30 and 32 covered by the mark applied for, and high, as regards the services in Class 43 covered by that mark. The applicant does not dispute that assessment.
19 Furthermore, the Board of Appeal found that the relevant territory was the European Union, in so far as the opposition was based on an EU trade mark. The applicant does not dispute that assessment either.
Comparison of the goods and services at issue
20 In assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
21 In the present case, first, the Board of Appeal found, in paragraph 32 of the contested decision, that the goods in Classes 29, 30 and 32 covered by the mark applied for were similar to an average degree to some of the services in Class 35 covered by the earlier mark.
22 Second, the Board of Appeal found, in paragraph 35 of the contested decision, that the services in Class 43 covered by the mark applied for were complementary to some of the services in Class 35 covered by the earlier mark. It concluded that those services were similar to a low degree.
23 The applicant submits that not only do the marks at issue cover different classes of goods and services, but also that the categories of the goods and services themselves covered by their respective designations are different overall. In that regard, the applicant claims, in particular, first, that even though the services covered by the earlier mark in Classes 35, 39 and 42 may have an indirect connection with food and drinks, the fact remains that the activities covered by the earlier mark must be regarded as logistical services for the implementation of an online sales platform, the delivery of products and related software. It adds that the mark applied for covers, for its part, foodstuffs, which are a very specific category of consumer goods produced by entities specialising in that particular sector. Second, it submits that the services covered by the earlier mark target only consumers in the United States and that that mark has never been used directly for food or drinks.
24 First, it must be borne in mind that the services in Class 35 covered by the earlier mark include, inter alia, online retail store services relating to meal replacements, energy foods, nutritional bars, gels, preparations, supplements and beverages. As regards the goods in Classes 29 and 30 covered by the mark applied for, those goods include various meal replacements presented in different forms such as bars, powders and beverages which contain ingredients of animal or plant origin. The goods in Class 32 covered by the mark applied for include concentrates and powders for the preparation of non-alcoholic, fruit or nutritionally fortified beverages, energy drinks and preparations for making beverages.
25 At the outset, it should be noted that the principles applicable to the comparison of the goods also apply to the comparison between the goods and services. It is true that, by their very nature, goods are generally different from services, but it nevertheless remains the case that they can be complementary or that the services may have the same purpose or use as the goods, and thus compete with each other. It follows that, in certain circumstances, goods and services may be found to be similar (see judgment of 7 September 2016, Victor International v EUIPO – Ovejero Jiménez and Becerra Guibert (VICTOR), T‑204/14, not published, EU:T:2016:448, paragraph 105 and the case-law cited).
26 In the present case, in the light of the factors referred to in paragraph 24 above, it must be held that the services covered by the earlier mark in Class 35 have an indirect connection with the goods covered by the mark applied for. Even though it is true that the nature of the goods and services at issue is different, the fact remains that those goods and services have the same purpose, in so far as they are aimed at human consumption and are intended to satisfy nutritional needs and may be aimed at the same relevant public.
27 Furthermore, as the Board of Appeal pointed out, goods and services such as those at issue may also be regarded as similar given that they are complementary and that the provision of services is generally offered in the same places as those in which the goods are offered for sale.
28 It is apparent from the case-law that goods or services which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that customers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (judgments of 1 March 2005, Sergio Rossi v OHIM – SISSI Rossi (SISSI ROSSI), T‑169/03, EU:T:2005:72, paragraph 60; of 15 March 2006, Eurodrive Services and Distribution v OHIM – Gómez Frías (euroMASTER), T‑31/04, not published, EU:T:2006:81, paragraph 35; and of 17 June 2008, El Corte Inglés v OHIM – Abril Sánchez and Ricote Saugar (BoomerangTV), T‑420/03, EU:T:2008:203, paragraph 98).
29 In that regard, it should be noted that there is a close connection between the services and the goods at issue, in so far as those goods are indispensable to the provision of those services, which are retail- and subscription-based services. That close connection is therefore a sign of the existence of a complementary relationship between the goods and services at issue.
30 Furthermore, it must be borne in mind that, according to settled case-law, there is a similarity between goods and the retail services which relate to those goods (judgments of 5 July 2012, Comercial Losan v OHIM – McDonald’s International Property (Mc. Baby), T‑466/09, not published, EU:T:2012:346, paragraph 24, and of 16 October 2013, El Corte Inglés v OHIM – Sohawon (fRee YOUR STYLe.), T‑282/12, not published, EU:T:2013:533, paragraph 37; see also, to that effect, judgment of 24 September 2008, Oakley v OHIM – Venticinque (O STORE), T‑116/06, EU:T:2008:399, paragraphs 42 to 58).
31 In the present case, it must be stated that the services in Class 35 covered by the earlier mark overlap with the goods in Classes 29, 30 and 32 covered by the mark applied for. Therefore, there is a similarity between the retail services covered by the earlier mark and the goods covered by the mark applied for, namely food and drinks.
32 Furthermore, it must be pointed out that the services covered by the earlier mark constitute one of the possible distribution channels of the goods covered by the mark applied for. That fact therefore reinforces their similarity (see, to that effect, judgment of 16 October 2013, fRee YOUR STYLe., T‑282/12, not published, EU:T:2013:533, paragraph 38).
33 Therefore, it must be held that the Board of Appeal was right to find, in paragraph 32 of the contested decision, that the goods in Classes 29, 30 and 32 covered by the mark applied for were similar to an average degree to the online retail store services relating to food and drinks in Class 35 covered by the earlier mark.
34 In addition, the services in Class 35 covered by the earlier mark also include subscription-based sales of food, subscription-based sales of beverages (in powdered or freeze-dried form), subscription-based food order fulfilment services, namely retail services connected with the sale of subscription boxes containing food and providing consumer product information relating to food or drink products.
35 The services in Class 43 covered by the mark applied for include meal planning services in digital form, accessible through the internet, and meal replacement preparation services.
36 In that regard, it should first be noted that the services at issue have in common the goods supplied in that context, namely meals, meal replacements and diet plans. The Board of Appeal was therefore entitled to find that those services belonged to the same field of commerce. Next, it is true that, as the Board of Appeal stated, undertakings which generally provide meal planning, meal preparation and meal replacement preparation services also offer services such as grocery and shopping list generation for users, the direct sale of goods or the provision of consumer product information. Consumers are therefore likely, as is apparent from the case-law referred to in paragraph 28 above, to assume that responsibility for the provision of the services in Class 43 lies with the same undertaking as that responsible for the subscription-based sales of food in Class 35.
37 Lastly, it must be stated that, in the present case, those services may be aimed at the same relevant public and be sold through the same distribution channels.
38 In those circumstances, the Board of Appeal was right to find that the services in Class 43 covered by the mark applied for and those in Class 35 covered by the earlier mark had a low degree of similarity.
39 The applicant’s argument must therefore be rejected.
40 Second, as regards the applicant’s argument that the earlier mark is aimed only at consumers in the United States and that it has never been used directly for food or drinks, it is apparent from the case-law that, in order to assess the similarity of the goods at issue, the group of goods protected by the marks at issue must be taken into account, and not the goods actually marketed subject to those marks (see, to that effect, judgment of 16 June 2010, Kureha v OHIM – Sanofi-Aventis (KREMEZIN), T‑487/08, not published, EU:T:2010:237, paragraph 71).
41 Consequently, that argument must be rejected.
42 In those circumstances, the Board of Appeal was correct in finding that the goods in Classes 29, 30 and 32 covered by the mark applied for were similar to an average degree to the services in Class 35 covered by the earlier mark and that, as regards the services in Class 43, those services were similar to a low degree to the services in Class 35 covered by the earlier mark, irrespective of the applicant’s line of argument relating to the services in Classes 39 and 42 covered by the earlier mark.
The comparison of the signs at issue
43 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 distinctive elements of the marks at issue
44 It should be borne in mind that, for the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services covered by that mark as coming from a particular undertaking, and thus to distinguish those goods and services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods and services covered by that mark (see, to that effect, judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM – Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 47 and the case-law cited).
45 In the present case, the Board of Appeal found, in paragraphs 45 to 47 of the contested decision, that, both in the earlier mark and in the mark applied for, for the non-English-speaking part of the relevant public, the word ‘feed’ would be perceived as meaningless and therefore had a normal degree of distinctiveness. By contrast, for the English-speaking part of the relevant public, the word ‘feed’ would be understood as meaning ‘the act or an instance of feeding’. According to the Board of Appeal, for that part of the relevant public, the word ‘feed’ described or alluded to the characteristics of the goods and services concerned, with the result that it was weakly distinctive.
46 The applicant submits that the word ‘feed’ is weakly distinctive in so far as it directly describes the nature and characteristic of the goods and services at issue. According to the applicant, the word ‘feed’ is a basic English word derived from the word ‘food’ which is very commonly used in the European Union, including in Member States where English is not the official language, and that, consequently, that word will not be perceived as meaningless by non-English-speaking consumers.
47 As regards the word ‘the’ present only in the earlier mark, the applicant submits that that word is as important, if not more, than the word ‘feed’, in so far as consumers tend to focus their attention on the beginning of the marks given that they read from left to right.
48 In that regard, it is irrelevant that the meaning of the word ‘feed’ is understood by the relevant public, in so far as, contrary to what the applicant claims, that fact will not influence the overall perception of the earlier mark.
49 Accordingly, if the relevant public, whether English-speaking or non-English-speaking, understands the meaning of the word ‘feed’, that element, whether it forms part of the mark applied for or the earlier mark, will, as the applicant submits, be weakly distinctive, given that it will be perceived as alluding to the goods and services at issue. If the relevant public does not understand the meaning of the word ‘feed’, then that element, whether it forms part of the mark applied for or the earlier mark, will have a normal degree of distinctiveness.
50 In both cases, the word ‘the’, which is a component of the earlier mark, will be recognised by the relevant public as the definite article commonly used in English that simply announces the word that follows, with the result that that element can have only a weak distinctive character.
51 Although, admittedly, as the applicant submits, the beginning of a mark may be more likely to catch the consumer’s attention than the components which follow, that does not apply in all cases (see, to that effect, judgment of 9 December 2020, Almea v EUIPO – Sanacorp Pharmahandel (Almea), T‑190/20, not published, EU:T:2020:597, paragraph 35 and the case-law cited).
52 In the present case, nothing in the meaning, arrangement or stylisation of the word ‘the’ is capable of attracting the attention of the relevant public. Thus, contrary to what the applicant claims, the word ‘the’, which is a component of the earlier mark, will not attract the attention of the relevant public more than the word ‘feed’ which follows it.
53 Therefore, as regards the earlier mark, the word ‘feed’ will have either a weak distinctive character or a normal distinctive character depending on whether or not the relevant public will understand its meaning, the word ‘the’ will retain a weak distinctive character in all circumstances and the full stop, which is only a punctuation mark, will attract little attention from the relevant public. As regards the mark applied for, it contains, as the Board of Appeal observed, the word ‘feed’ in a similar font. The same findings therefore apply to that mark.
54 In those circumstances, there is no reason to call into question the Board of Appeal’s assessment concerning the distinctive character of the various components of the marks at issue.
Visual similarity
55 The Board of Appeal found, in essence, that the marks at issue had a high degree of visual similarity. It observed that, although the mark applied for differed from the earlier mark in the absence of the English word ‘the’, those two marks nevertheless shared two important elements, namely the word element ‘feed’ and the punctuation mark.
56 The applicant submits that the marks at issue are not visually similar. It argues that the marks at issue have different lengths and overall structures. It adds that the mark applied for consists of one word of four letters followed by a punctuation mark, and stylised in a thin black font, whereas the earlier mark is composed of two words of three and four letters, thus a total of seven letters, followed by a full stop and stylised in a bold black font.
57 First of all, it should be noted that the mark applied for reproduces, in a similar and fairly standard font, the earlier mark, with the exception of the word ‘the’. As regards that word, it will be understood as a simple definite article by the relevant public, since it has little impact on the visual comparison.
58 Next, it must be stated that the marks at issue are composed of seven letters in the case of the earlier mark and four letters in the case of the mark applied for, four of which are in common and placed in the same order. The punctuation mark is also common to the marks at issue.
59 Accordingly, the only difference lies in the initial part of the marks at issue. In that regard, although it is true, as the applicant submits, that, according to the case-law, the relevant public will generally pay greater attention to the beginnings of marks than to their endings, that does not mean, as is apparent from the case-law cited in paragraph 51 above, that the other elements or the other parts are irrelevant and that those marks cannot be regarded as visually similar. In the present case, since the other letters and the punctuation mark of the marks at issue are identical and placed in the same order, the difference created by the different first letters of the marks at issue is not sufficient to offset the visual similarity resulting from the presence of the other letters in common.
60 The word element ‘feed’ is the most important element of the marks at issue, with the result that the presence of the article ‘the’ in the earlier mark is not such as to significantly alter the perception of that mark.
61 Lastly, contrary to the applicant’s claims, the graphic representation of the letters in a slightly different font may easily go unnoticed by the relevant public. Accordingly, it must be held that that graphic representation is likely to have a limited impact and will not attract the attention of the relevant public.
62 In those circumstances, it must be held that the Board of Appeal was right to find that there was a high degree of visual similarity between the marks at issue.
Phonetic similarity
63 The Board of Appeal found that the pronunciation of the word element ‘feed’ was identical in the two marks at issue and that the additional syllable ‘the’ included in the earlier mark had a very limited impact. Consequently, it found that those marks were highly similar phonetically.
64 The applicant submits that the mark applied for contains only one syllable, whereas the earlier mark contains two. It adds that, since the marks at issue are of different lengths and differ considerably in their first syllables, there are significant phonetic differences between them.
65 In the present case, first, it should be noted that the difference, which consists of the definite article ‘the’, is at the beginning of the earlier mark. As the Board of Appeal found, in essence and correctly, in paragraph 48 of the contested decision, without being challenged by the applicant, that definite article, which is used to highlight the common noun which follows it, will have a limited impact on the phonetic impression produced by the earlier mark.
66 Second, it must be stated that, although the marks at issue contain a different number of syllables, namely one and two respectively, that does not automatically preclude a finding of a high degree of similarity between them. Those marks coincide in four out of seven letters and all the identical letters are clearly audible when those marks are pronounced. Therefore, it must be held that those differences are not sufficient to counteract the phonetic similarity of the marks at issue.
67 In those circumstances, it must be held that the Board of Appeal was correct in finding that the marks at issue were phonetically similar to a high degree.
Conceptual similarity
68 The Board of Appeal found that, in so far as the word element ‘feed’ was present in the marks at issue, those marks were conceptually identical.
69 The applicant submits that even if the marks at issue have the word element ‘feed’ in common, they have different overall meanings. Accordingly, the mark applied for contains only the word ‘feed’ and would be perceived as a verb, whereas the earlier mark contains the word ‘feed’ preceded by the definite article ‘the’ and would be perceived as a noun.
70 Without it being necessary to consider whether, in the earlier mark, the word ‘feed’ will be perceived as a verb or as a common noun, it must be held that, as is apparent from paragraph 49 above, the part of the relevant public which will understand that word will understand that single word or the combination of the English words ‘the’ and ‘feed’ as referring to a characteristic of the goods and services at issue, namely that they relate to food and drinks. Accordingly, for the relevant public who will understand the word ‘feed’, the marks at issue will be conceptually similar at least to a high degree. As regards the part of the relevant public which will not understand the word ‘feed’, the marks at issue will not be conceptually comparable, given that the word ‘feed’ does not convey any concept.
71 In those circumstances, the applicant’s argument that the marks at issue are conceptually different must be rejected.
The distinctiveness of the earlier mark
72 As is apparent from recital 11 of Regulation 2017/1001, the assessment of the likelihood of confusion depends on numerous elements, in particular the public’s recognition of the trade mark on the market in question. The more distinctive the trade mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24; of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18; and of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 20).
73 The Board of Appeal found that, as regards the part of the relevant public which does not understand the word ‘feed’, the earlier mark has a normal degree of inherent distinctiveness and that, as regards the part of the relevant public which understands that word, the earlier mark has a weak degree of inherent distinctiveness. In addition, it stated that earlier registered marks were presumed to have at least a minimum degree of inherent distinctiveness, in accordance with the case-law resulting from the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314).
74 The applicant claims, first of all, that the earlier mark does not have a reputation. Next, it submits that the earlier mark has, at most, a very weak degree of distinctiveness, claiming, in particular, that it is very weakly distinctive with regard to the goods and services at issue and that the words ‘the’ and ‘feed’ have a descriptive meaning.
75 In that regard, it must be borne in mind that the question whether an earlier mark possesses at least the minimum degree of distinctiveness required for its registration cannot be examined in the context of opposition proceedings, the subject matter of which is limited to the examination of the relative grounds for refusal of registration of the mark applied for provided for in Article 8 of Regulation No 207/2009. The validity of an earlier mark cannot be called into question in proceedings for registration of an EU trade mark (see, to that effect, judgment of 24 September 2015, Primagaz v OHIM – Reeh (PRIMA KLIMA), T‑195/14, not published, EU:T:2015:681, paragraphs 95 and 96 and the case-law cited).
76 In the light of the foregoing, in the present case, the Board of Appeal was justified in relying, as it did in paragraph 61 of the contested decision, on the case-law arising from paragraphs 40 to 47 of the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314) (see, to that effect, judgment of 12 May 2016, Red Lemon v EUIPO – Lidl Stiftung (ABTRONIC), T‑643/14, not published, EU:T:2016:294, paragraph 57 and the case-law cited). In any event, the Board of Appeal was entitled to find that the earlier mark had a minimum of inherent distinctiveness merely because it had been registered.
77 Consequently, the minimum degree of distinctiveness of the earlier mark must be taken into account and the applicant’s arguments in that regard must be rejected.
The global assessment of the likelihood of confusion
78 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).
79 In the present case, the Board of Appeal found that the likelihood of confusion was established, taking into account, in essence, the similarity of the goods and services at issue, the conceptual identity of the marks at issue and the high degree of visual and phonetic similarity between those marks. It also stated that that finding could not be called into question by the higher level of attention of the public with regard to some of the services in Class 43, such as meal planning services.
80 The applicant claims that the Board of Appeal erred in finding that there was a likelihood of confusion. It submits in that regard that the differences between the marks at issue produce a different overall impression and that there will be no risk that the relevant public might believe that the goods and services at issue have the same origin.
81 First of all, it should be borne in mind that the goods in Classes 29, 30 and 32 are similar to an average degree to the services in Class 35 covered by the earlier mark and that, as regards the services in Class 43, those services are similar to a low degree to the services in Class 35 covered by the earlier mark.
82 As regards the similarity of the marks at issue, it must be held that, as stated in paragraphs 62 and 67 above, the Board of Appeal did not make an error of assessment in finding that the earlier mark had a high degree of visual and phonetic similarity with the mark applied for. As regards the conceptual comparison of the marks at issue, it should be borne in mind that, as is apparent from paragraph 70 above, they are, for part of the relevant public, conceptually similar at least to a high degree, whereas, for another part of that public, they are not comparable.
83 Therefore, even if there is a low degree of similarity between the services in Class 35 and those in Class 43, the level of attention of the relevant public in relation to the latter is high and the earlier mark is weakly distinctive with regard to the part of the public that understands the word ‘feed’, it must be held that, in so far as the mark applied for reproduces almost exactly two elements of the earlier mark, there will be a likelihood of confusion on the part of that public, which will have to rely on its imperfect recollection. The relevant public may reasonably believe that the services at issue come, if not from the same undertaking, from economically linked undertakings.
84 The same applies, a fortiori, to the goods in Classes 29, 30 and 32 which are similar to an average degree to the services in Class 35 and for which the level of attention of the relevant public will be average.
85 Contrary to what the applicant claims, the fact that the earlier mark, unlike the mark applied for, contains the word ‘the’ does not enable it to produce an overall impression so different from that of the mark applied for that it would enable the relevant public to know that the goods and services at issue come from two different undertakings.
86 Therefore, in the light of the interdependence between the similarity of the goods and services and the similarity of the marks, it must be held, in the context of a global assessment, that the Board of Appeal was correct in finding that there was a likelihood of confusion between the marks at issue, despite the fact that the earlier mark has a weak degree of distinctiveness with regard to the part of the public that understands the word ‘feed’ and that the level of attention of that public is high for the services in Class 43 covered by the mark applied for.
87 It follows from the foregoing that the applicant’s single plea must be rejected and that the action must therefore be dismissed in its entirety.
Costs
88 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.
89 Since a hearing has taken place and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1. Dismisses the action;
2. Orders Feed SA to pay the costs.
Kowalik-Bańczyk | Hesse | Ricziová |
Delivered in open court in Luxembourg on 31 January 2024.
V. Di Bucci | | S. Papasavvas |