JUDGMENT OF THE GENERAL COURT (Second Chamber)
9 November 2022 (*)
(EU trade mark – Opposition proceedings – Application for EU word mark WELLMONDE – Earlier national word mark WELL AND WELL – Relative ground for refusal – No likelihood of confusion – No similarity between the signs – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
In Case T‑601/21,
Pharmadom, established in Boulogne-Billancourt (France), represented by M.‑P. Dauquaire, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by N. Lamsters and J. Crespo Carrillo, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Wellstat Therapeutics Corp., established in Rockville, Maryland (United States), represented by M. Graf, lawyer,
THE GENERAL COURT (Second Chamber),
composed, at the time of the deliberations, of V. Tomljenović, President, P. Škvařilová-Pelzl (Rapporteur) and I. Nõmm, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
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
1 By its action based on Article 263 TFEU, the applicant, Pharmadom, seeks annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 June 2021 (Case R 1776/2020‑5) (‘the contested decision’).
Background to the dispute
2 On 12 December 2016, the intervener, Wellstat Therapeutics Corp., filed an application with EUIPO for registration of an EU trade mark in respect of the word sign WELLMONDE.
3 The mark applied for designated the goods and services in, inter alia, after the restriction made during the proceedings before EUIPO, Classes 5 and 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponding, for each of those classes, to the following description:
– Class 5: ‘Pharmaceutical preparations for treatment in the areas of oncology, haematology, neurology, dermatology, metabolic disorders, neurometabolic disorders and mitochondrial disorders, all of the foregoing goods excluding pharmaceutical preparations and substances for the treatment of depression; Biological agents for treatment in the areas of oncology, anti-virals, infectious diseases and mitochondrial disorders; Pharmaceuticals, medical and veterinary preparations, all of the foregoing goods excluding pharmaceutical preparations and substances for the treatment of depression; Sanitary preparations for medical purposes; Dietetic food and substances adapted for medical or veterinary use, food for babies; Dietary supplements for humans and animals; Plasters, materials for dressings; Materials for stopping teeth, dental wax; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides’;
– Class 42: ‘Pharmaceutical and biological research and development services; Scientific and technological services and research and design relating thereto; Industrial analysis and research services; Design and development of computer hardware and software’.
4 On 10 April 2017, the applicant 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 earlier French word mark WELL AND WELL, covering, inter alia, goods and services in Classes 5 and 44 and corresponding, for each of those classes, to the following description:
– Class 5: ‘Pharmaceuticals; pharmaceutical preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical use; appetite suppressants for medical purposes; food for babies; dietary supplements; disinfectants; materials for dressings; plasters; medicines for human purposes; preparations for pharmaceutical purposes; lotions for pharmaceutical purposes; pharmaceuticals for body care; vaccines; disinfectants; preparations for destroying vermin; fungicides; herbicides’;
– Class 44: ‘Health care; medical assistance; advise and information relating to parapharmaceuticals; pharmaceutical assistance; pharmacy services; pharmacy advice; pharmaceutical services; pharmacists’ services; telepharmacy services; parapharmaceutical services; parapharmaceutical consultancy’.
6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (now 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 29 June 2020, the Opposition Division rejected the opposition.
8 On 29 August 2020, 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 on the ground that there was no likelihood of confusion. It found, in essence, that the relevant territory was that of France, on account of the fact that the earlier mark was a French mark, that the relevant public consisted of both the general public and health professionals and that the level of attention of that public when purchasing the goods and services at issue would vary from above average to high. As regards those goods and services, the Board of Appeal assumed, for reasons of procedural economy, that they were all identical. According to the Board of Appeal, the outcome of the decision should be the same irrespective of whether the goods and services at issue are found to be identical rather than highly similar or similar.
10 As regards the degree of inherent distinctive character of the earlier mark, the Board of Appeal found, in essence, that it was average, at least for the part of the relevant public which would not understand the meaning of the basic English word ‘well’.
11 As regards the analysis of the marks at issue, the Board of Appeal examined the dominant and distinctive elements of the marks at issue. It observed that, as regards pure word marks, they did not contain elements which could be considered to be visually dominant. Furthermore, it found, in essence, that no element would be more distinctive than any other element in the earlier mark, whereas, in the mark applied for and in relation to the part of the relevant public which would understand the basic English word ‘well’, the French word ‘monde’ might possibly appear, for the large part of the relevant public which would identify it within that mark, as the most distinctive element.
12 As regards the comparison of the signs, the Board of Appeal found that there was only a low degree of visual and phonetic similarity between the marks at issue.
13 Conceptually, the Board of Appeal found that each of the marks at issue, taken as a whole, would have no precise meaning for the relevant public. For the part of the relevant public which understand the English word ‘well’, they have a certain degree of conceptual similarity, but which relates to a weakly distinctive element, because it alludes to the intended purpose of the goods or services at issue. Furthermore, for the large part of the relevant public which would identify the French word ‘monde’ in the mark applied for, it would help to differentiate the marks at issue conceptually.
14 As regards the likelihood of confusion, the Board of Appeal concluded that, taking into account all the relevant factors, despite the assumption that the goods and services at issue were identical, the similarities between the signs at issue were not sufficient, in the present case, to counteract their differences and to make them similar to the extent that a likelihood of confusion arose.
15 The Board of Appeal took the view that the previous decisions of EUIPO cited by the applicant were not capable of altering its findings.
Forms of order sought
16 The applicant claims that the Court should annul the contested decision.
17 EUIPO and the intervener contend that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
18 Given the date on which the application for registration at issue was filed, namely 12 December 2016, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). Consequently, in the present case, in so far as the substantive rules are concerned, the references made by the Board of Appeal in the contested decision, by the applicant in the arguments raised, by the intervener and by EUIPO in their written pleadings, to Article 8(1)(b) of Regulation No 207/2009 should be understood as referring to Article 8(1)(b) of Regulation 2017/1001, the wording of which is substantively identical.
19 In support of its action, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009. The applicant submits, in essence, that, contrary to what the Board of Appeal found, the element ‘well’ had a ‘perfectly’ distinctive character, even for the part of the relevant public which understands basic English. There is therefore no need to distinguish between the part of the relevant public which understands the word ‘well’ and that which does not understand that word. The applicant submits that the repetition of the word ‘well’ in the earlier mark reinforces its distinctive character. As regards the sign WELLMONDE, the applicant also submits that the Board of Appeal erred in finding that the relevant public would perceive it in its entirety. According to the applicant, the Board of Appeal should have found that the relevant public would dissect the sign applied for into ‘well’ and ‘monde’. Consequently, that sign has similarities with the earlier sign, which also contains the word ‘well’.
20 Having regard to the word element ‘well’ in the marks at issue, there is a visual, phonetic and conceptual similarity between them. The relevant public is, moreover, likely to take the view that the mark WELLMONDE is a sub-brand filed for a special line of goods. It follows that the Board of Appeal should have concluded that there was a likelihood of confusion in the present case.
21 EUIPO, supported by the intervener, disputes the applicant’s arguments.
22 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if because of its identity with, or similarity to an 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.
23 The risk that the public might 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).
24 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, account being taken, in particular, of 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).
25 As a preliminary point, it should be noted that the Board of Appeal, in paragraph 25 of the contested decision, did not compare the goods and services at issue, but proceeded on the assumption that they are identical. The present plea therefore involves determining whether the Board of Appeal could, without making an error of assessment, rule out the possibility of a likelihood of confusion even if the goods and services at issue were identical.
26 Furthermore, as regards the relevant public, it is necessary to confirm its definition, stemming from paragraphs 17, 21 and 22 of the contested decision and not disputed by the applicant, according to which that public consists of both the general public and health professionals in France, whose level of attention varies from above average to high.
The comparison of the signs
The distinctiveness and dominance of the elements comprising the signs at issue
27 As regards the element ‘well’, the Board of Appeal found, in paragraphs 34 and 35 of the contested decision, that that element did not, in principle, have any meaning for part of the relevant public, but that, for the other part of that public, namely the part of the relevant public with a basic knowledge of English, that element would be understood as corresponding to the adverb or adjective ‘bien’ in French, which would give it a low degree of distinctiveness, in so far as it refers to the concept of ‘well-being’ in relation to the goods and services in question, concerning the physical well-being of the person and would thus have a certain descriptive character as regards the intended purpose of the goods and services. By contrast, for the other part of the relevant public which does not understand that element, it has average distinctive character.
28 As regards the mark applied for, the Board of Appeal found, in paragraph 36 of the contested decision, that that mark, taken as a whole, was meaningless in French. Furthermore, it found, in paragraph 38 of the contested decision, that even if a large part of the relevant public would perceive the French word ‘monde’ in the mark applied for, that word would not be dissected into two but perceived in its entirety, especially by the part of the relevant public which does not understand the basic English word ‘well’.
29 The applicant claims that the element ‘well’ is of average distinctiveness for the relevant public, regardless of whether or not that public knows basic English. It submits that, even if a significant part of the relevant public might understand the basic English word ‘well’, that word will nevertheless not be perceived as being descriptive of the goods and services at issue and its degree of distinctiveness will remain average and not weak. It follows that the relevant public would dissect the mark applied for into two elements, namely ‘well’ and ‘monde’, contrary to the findings of the Board of Appeal.
30 It should be noted at the outset that although, according to the case-law cited in paragraph 24 above, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details, the fact remains that, when perceiving a word sign, that consumer will break it down into word elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (see judgment of 21 December 2021, Dr. Spiller v EUIPO – Rausch (Alpenrausch Dr. Spiller), T‑6/20, not published, EU:T:2021:920, paragraph 98 and the case-law cited).
31 For the purposes 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 for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or 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 or services for which the mark has been registered (see judgment of 21 December 2021, Alpenrausch Dr. Spiller, T‑6/20, not published, EU:T:2021:920, paragraph 99 and the case-law cited).
32 In that respect, it should be recalled that the Court has already held that a relevant audience of health professionals is able to understand the meaning of the word ‘well’ in so far as they have, in general, a good knowledge of English and can, in any event, easily understand the meaning of certain words which are very common in everyday language (see, to that effect, judgment of 11 April 2019, Pharmadom v EUIPO – Objectif Pharma (WS wellpharma shop), T‑403/18, not published, EU:T:2019:248, paragraph 36).
33 Similarly, the Court also found that consumers in the general public, with a basic linguistic knowledge of the English language, would understand the word ‘well’ to refer to the concept of ‘well-being’ in relation to products concerning the physical well-being of the individual (see, to that effect, judgment of 11 April 2019, WS wellpharma shop, T‑403/18, not published, EU:T:2019:248, paragraph 37 and the case-law cited).
34 In the light of the case-law cited in paragraphs 30 to 33 above, the Board of Appeal was right to find, in the circumstances of the present case, that, for part of the relevant public, namely health professionals and the part of the general public which understands basic English, the distinctiveness of the element ‘well’ is weak, whereas, for the part of the general public which does not understand basic English, it is of average distinctiveness. Therefore, contrary to what the applicant claims, in essence, the Board of Appeal was justified, in the present case, in finding, in paragraph 38 of the contested decision, that, within the mark applied for, the element ‘well’ is less distinctive than the element ‘monde’ for the part of the relevant public which understands basic English.
35 Furthermore, the mere fact that the Board of Appeal stated, in paragraph 38 of the contested decision, that the mark applied for, considered as a whole, has no precise meaning for the relevant public does not mean that it refused to consider that that public, or at least a part of it, could break it down into word elements which, to it, suggest a concrete meaning or resemble words which it would know, in accordance with the case-law cited in paragraph 30 above. On the contrary, it is apparent from paragraphs 36, 38 and 42 of the contested decision that the Board of Appeal found, in the present case, that the part of the relevant public which understands basic English would be able to identify the English word ‘well’ in both of the marks at issue and that a large part of the relevant public would recognise the French word ‘monde’ within the mark applied for. Thus, in the contested decision, the Board of Appeal, after recalling the case-law principles cited in paragraph 30 above, did not fail to consider that part of the relevant public might recognise the mark applied for as the combination of the words ‘well’ and ‘monde’ or, at the very least, dissect that mark into those two elements according to its understanding of one or the other of those elements.
36 The Board of Appeal therefore did not make an error of assessment in breaking down and analysing the elements that might be the most distinctive in the signs at issue. Accordingly, the arguments put forward by the applicant against those assessments must be rejected as unfounded.
The visual comparison
37 In the present case, the signs to be compared are the earlier sign WELL AND WELL and the sign applied for WELLMONDE.
38 In that regard, the Board of Appeal found, in paragraph 39 of the contested decision, that, notwithstanding the coincidence, in both of the signs at issue, of the sequence of the letters ‘w’, ‘e’, ‘l’, ‘l’, those signs had, ultimately, a low degree of visual similarity. The Board of Appeal found, in that regard, first, that the element ‘well’ was an independent word in the earlier mark, whereas, in the sign applied for, it forms part of the element ‘wellmonde’. Secondly, it noted that the signs at issue differed in the repetition of the common element ‘well’, by the presence of the coordinating conjunction ‘and’ in the earlier sign and by the sequence of the letters ‘m’, ‘o’, ‘n’, ‘d’, ‘e’, in the sign applied for, which have no respective equivalents in the marks at issue.
39 Thirdly, it found, in paragraph 40 of the contested decision, that the signs differed in their structure, given that the earlier mark consisted of relatively short elements, whereas the sign applied for contained only one single long word.
40 That assessment is irreproachable. Although the applicant takes the view that the signs at issue are visually similar on account of the common element ‘well’, the fact remains that they nevertheless have significant visual differences, as referred to by the Board of Appeal in paragraphs 39 and 40 of the contested decision and referred to in paragraphs 38 and 39 above. Despite its length, the mark applied for is easily read and will be remembered in its entirety by the relevant public. That applies both to the part of the relevant public which will understand the basic English word ‘well’ and/or the French word ‘monde’ and to the part of the relevant public which will not understand either of those words. It should be added that, for a significant part of the relevant public which understands basic English, the element on which the marks at issue coincide will be distinctive to a low degree because of its descriptive character of the intended purpose of the goods and services at issue. Consequently, there is a low degree of visual similarity between the marks at issue.
Phonetic comparison
41 The Board of Appeal found, in paragraph 41 of the contested decision, that, phonetically, the pronunciation of the signs at issue coincided in the pronunciation of the letters ‘w’, ‘e’, ‘l’, ‘l’, in accordance with the usual French pronunciation rules. It stated, however, that the marks were distinguished by the additional elements, namely that the earlier sign would be pronounced ‘well-and-well’, whereas the sign applied for would be pronounced as ‘well-mon-de’. It recalled that the element ‘well’, which appeared in the signs at issue, was an element with a low degree of distinctiveness for at least part of the public. In the light of those considerations, it concluded that the marks at issue had only a low level of phonetic similarity.
42 In that regard, the applicant’s arguments alleging, in essence, the dominant role of the element ‘well’ in the pronunciation of the marks at issue must also be rejected. The repetition of the word ‘well’ and the presence of the element ‘and’ give the earlier mark a rhythm and characteristic sound which are different from those of the sign applied for. In that respect, it must be held, as observed by EUIPO, that, even if part of the relevant public were able to pronounce the word ‘and’ in an abbreviated way with the result that the earlier sign would be pronounced ‘well-n-well’, that would not diminish the overall rhythm and sound differences between the signs at issue. Similarly, it must be held that, even if part of the relevant public does not understand the basic English word ‘well’, that does not imply that that word would be pronounced differently by that part of that public. The understanding does not necessarily change the pronunciation. By contrast, account must be taken of the fact that, for that significant part of the relevant public, the signs at issue coincide on an element which, as the Board of Appeal correctly pointed out, is distinctive to a low degree on account of its descriptive character of the intended purpose of the goods and services at issue.
43 As regards the sign applied for WELLMONDE, it must be added that the fact that the relevant public recognises the French word ‘monde’ in that sign and that part of the relevant public which understands basic English, will perceive that the word ‘well’ in the marks at issue has no significant effect on the phonetic differences between those marks. Accordingly, the Board of Appeal did not make an error of assessment in finding that the signs at issue were phonetically similar to a low degree.
The conceptual comparison
44 The Board of Appeal found, in paragraph 42 of the contested decision, that the signs at issue, considered as a whole, had no meaning. That being so, it pointed out that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its details, the fact remains that, when perceiving a word sign, he or she would dissect it into word elements which, to him or her, suggested a concrete meaning or which resembled words known to him or her. It therefore found, in paragraph 43 of the contested decision, that, for the part of the relevant public which did not understand the word ‘well’, the signs were not conceptually similar. By contrast, for the part of the relevant public which understood the word ‘well’, the signs at issue had, according to the Board of Appeal, a certain degree of similarity, while pointing out that that element was distinctive to a low degree. It also found that the signs at issue were partially conceptually different for the public which would identify the French word ‘monde’ in the mark applied for, given that that element appeared only in that mark.
45 In the present case, it is necessary to confirm the Board of Appeal’s analysis that, for the part of the relevant public which understands basic English, there is a certain degree of conceptual similarity between the signs at issue, but which is mitigated by the fact that the word ‘well’ has a weak distinctive character because it is descriptive of the intended purpose of the goods and services at issue, as has been stated in paragraph 34 above.
46 As regards the other part of that public which does not have that knowledge or understanding of the elements contained in the signs at issue, those elements will not be conceptually comparable since neither of the two, considered as a whole, will have any meaning. Where none of the signs in question has any meaning taken as a whole, it must be found that a conceptual comparison is not possible (see, to that effect, judgments of 21 September 2017, Novartis v EUIPO – Meda (Zymara), T‑214/15, not published, EU:T:2017:637, paragraph 149, and of 5 October 2017, Forest Pharma v EUIPO – Ipsen Pharma (COLINEB), T‑36/17, not published, EU:T:2017:690, paragraph 96). The Board of Appeal was therefore right to find that the marks at issue, considered as a whole, were not conceptually similar for the part of the relevant public which would not dissect the signs at issue.
47 It is also necessary to uphold the Board of Appeal’s finding that the signs at issue were partially conceptually different for the public which would identify the French word ‘monde’ in the mark applied for, given that that element appeared only in that mark. It should be noted in that respect that where one of the conflicting marks has meaning from the perspective of the relevant public and the other mark does not, it must be found that the marks in question are conceptually different (see, to that effect, judgment of 19 September 2017, RP Technik v EUIPO – Tecnomarmi (RP ROYAL PALLADIUM), T‑768/15, not published, EU:T:2017:630, paragraphs 88 and 89).
48 Moreover, it must also be observed that the applicant does not directly call into question the analysis described above, but rather confines itself to asserting the distinctive and dominant character of the element ‘well’. However, even for the part of the relevant public which does not know basic English and which would identify the French word ‘monde’ in the mark applied for and thus dissect the mark into two elements, it is not obvious that the element ‘well’ is more distinctive or predominant. The word ‘monde’, which would not have a precise and obvious meaning in relation to the goods and services at issue, would retain an average distinctiveness, in the same way as the element ‘well’, and its first position in the sign would not give it a clear predominance, since the element ‘monde’ constitutes the largest part of the sign, the length of which remains reasonable for it to be considered as a whole by the part of the public at issue here.
49 Accordingly, the arguments put forward by the applicant challenging the Board of Appeal’s assessments concerning the conceptual comparison of the marks at issue must be rejected as unfounded.
The inherent distinctiveness of the earlier mark
50 The Board of Appeal found, in essence, in paragraph 38 of the contested decision, that the inherent distinctiveness of the earlier mark was average, at least for the part of the relevant public which would not understand the meaning of the English word ‘well’, and therefore did not rule out the possibility that it was weak for the part of the relevant public that would understand the basic English words ‘well’ and ‘and’.
51 That analysis must be confirmed in the light of the fact that the word element ‘well’ has a weak distinctive character for the part of the relevant public which understands English, as has been stated in paragraph 34 above, and that the element ‘and’ is a basic English word which the relevant public will understand as a simple link word between the repeated elements ‘well’. For the part of the relevant public which does not understand English, the earlier sign has an average distinctive character in so far as, for that public, it has no meaning.
The overall assessment of the likelihood of confusion
52 A global assessment of the likelihood of confusion implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between these goods or services. Accordingly, a lesser degree of similarity between these goods or services may be offset by a greater 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).
53 The Board of Appeal found, in paragraphs 49 and 50 of the contested decision, that there was no likelihood of confusion because, taking into account all the other factors in the present case, the similarities were not sufficient to counteract the differences between the marks at issue to such a degree as to give rise to such a likelihood. According to the Board of Appeal, those differences would not go unnoticed. It also noted that the level of attention of the relevant public was high.
54 The applicant submits, in essence, that the Board of Appeal failed to take account of the distinctive and dominant character of the word ‘well’ in the marks at issue.
55 EUIPO supported by the intervener disputes the applicant’s arguments.
56 It should be borne in mind that the signs at issue coincide only in the word element ‘well’. That word has, for the significant part of the relevant public which understand basic English, a weak distinctive character in respect of the goods and services at issue. Similarly, for the part of the relevant public which does not understand the meaning of that word, the overall impression created by the signs at issue is markedly different owing to the presence of the element ‘monde’ in the sign applied for, which will be identified as the corresponding French word by a large part of the relevant public, and the repetition of the word ‘well’ and the word element ‘and’ in the earlier mark, the inherent distinctiveness of which varies from low to average.
57 Furthermore, it should be borne in mind that the relevant public has a level of attention varying from above average to high.
58 It follows that, in the light of the visual, phonetic and conceptual differences between the signs at issue, the applicant’s arguments must be rejected. The relevant public, displaying a level of attention varying from above average to high in relation to the goods and services at issue, is not likely to associate the sign applied for with the earlier sign in such a way that the sign applied for would be perceived as a sub-brand of the earlier mark, filed for a special line of goods.
59 Despite the assumption made by the Board of Appeal that the goods and services at issue are identical and notwithstanding the principles of interdependence and imperfect recollection, there is no likelihood of confusion in the circumstances of the present case.
60 In the light of the foregoing, it must be held that the Board of Appeal did not make an error of assessment in finding that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.
61 In the light of the foregoing, the applicant’s single plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
62 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.
63 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders Pharmadom to pay the costs.
Tomljenović | Škvařilová-Pelzl | Nõmm |
Delivered in open court in Luxembourg on 9 November 2022.
E. Coulon | | M. van der Woude |