JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
24 January 2024 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark SALVAJE – Earlier national word mark SALVANA – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – Genuine use of the earlier mark – Article 42(2) and (3) of Regulation No 207/2009 (now Article 47(2) and (3) of Regulation 2017/1001))
In Case T‑55/23,
Tiendanimal Comercio Electronico de Articulos para Mascotas, S.L, established in Malaga (Spain), represented by S. Correa Rodríguez, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by P. Villani 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
Salvana Tiernahrung GmbH, established in Klein Offenseth-Sparrieshoop (Germany), represented by K. Wagner and M. Kefferpütz, lawyers,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and U. Öberg, Judges,
Registrar: V. Di Bucci,
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, Tiendanimal Comercio Electronico de Articulos para Mascotas, S.L, seeks annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 November 2022 (Case R 2192/2021-5) (‘the contested decision’).
I. Background to the dispute
2 On 4 December 2015, the applicant filed an application for registration of an EU trade mark with EUIPO for the following figurative sign (‘the trade mark applied for’):
3 The goods and services in respect of which registration was sought are in Classes 31 and 35 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 31: ‘Foodstuffs for animals’;
– Class 35: ‘Wholesaling, retailing and sale via global computer networks of foodstuffs for animals, playthings for animals, goods and utensils for animal care and hygiene’.
4 The trade mark application was published in European Union Trade Marks Bulletin No 245/2015 of 28 December 2015.
5 On 23 March 2016, the intervener, Salvana Tiernahrung GmbH, 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.
6 The opposition was based on the earlier German word mark SALVANA (‘the earlier mark’), covering, inter alia, goods and services in Classes 5 and 31 and corresponding, for each of those classes, to the following description:
– Class 5: ‘Food supplements and food additives for animals to enhance feeding effect; Mineral preparations with vitamin and antibiotic additives for animal feeding; Dietetic animal feed; concentrated proteins for animals; Cod liver oil emulsions; Cod liver oil for animals’;
– Class 31: ‘Foodstuffs and fodder for animals; Mixed foodstuffs for animals; Lime for animal forage’.
7 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 Community trade mark (OJ 2009 L 78, p. 1) (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)).
8 Following the applicant’s request to that effect made on 13 May 2020, EUIPO on 25 May 2020 asked the intervener to provide proof of genuine use of the earlier mark relied on in support of the opposition. The intervener complied with that request within the prescribed period.
9 On 28 October 2021, the Opposition Division found that the intervener had furnished proof of genuine use of the earlier mark for the following goods:
– Class 5: ‘Food supplements and food additives for animals to enhance feeding effect’;
– Class 31: ‘Foodstuffs for animals’.
10 It was in those circumstances that, on 28 October 2021, the Opposition Division partially upheld the opposition, namely for the following goods and services:
– Class 31: ‘Foodstuffs for animals’;
– Class 35: ‘Wholesaling, retailing and sale via global computer networks of foodstuffs for animals and goods for animal care and hygiene’.
11 By contrast, in so far as the trade mark application also covered other services in Class 35, namely ‘wholesaling, retailing and sale via global computer networks of playthings for animals and utensils for animal care and hygiene’, the Opposition Division found that those services were dissimilar to the goods covered by the earlier mark. Consequently, it rejected the opposition in so far as it related to those services.
12 On 22 December 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
13 By the contested decision, the Board of Appeal dismissed the appeal on the ground that, first, the Opposition Division was entitled to find that the intervener had furnished proof of genuine use of the earlier mark and, second, there was a likelihood of confusion between the marks at issue. At the end of its analysis concerning the genuine use of the earlier mark, the Board of Appeal concluded that the evidence produced by the intervener showed that that trade mark had been used for the goods referred to in paragraph 9 above. With regard to the question relating to the likelihood of confusion, the Board of Appeal essentially considered, inter alia, that the goods and services covered by the mark applied for were identical or similar to those covered by the earlier mark. The relevant territory is Germany and the relevant public for the goods and services at issue consists of both the general public, whose level of attention is average, and professionals, whose level of attention is higher than average. According to the Board of Appeal, for the purposes of the global assessment of the marks at issue, it is necessary to take into account the inherent distinctiveness of the earlier mark. According to the Board of Appeal, the word element ‘salvaje’, present in the mark applied for, has average distinctive character, whereas the figurative element consisting of the head of a wolf or Husky dog is less distinctive than that word element. The elements making up the mark applied for are co-dominant. Visually and phonetically, the two marks are similar to an average degree, whereas the result of the conceptual comparison is neutral. Lastly, in the context of the global assessment of the likelihood of confusion, the Board of Appeal found that, having regard to the similarities between the signs at issue and taking into account the identity and similarity of the goods and services at issue, such a likelihood existed on the part of the relevant public.
II. Forms of order sought
14 The applicant claims, in essence, that the Court should:
– annul the contested decision;
– annul the decision of the Opposition Division of 28 October 2021 in so far as EUIPO rejected the application for registration of an EU trade mark in respect of the goods referred to in paragraph 10 above;
– allow registration of the mark applied for in respect of all the goods and services referred to in the application for registration;
– order EUIPO and the intervener to pay the costs.
15 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.
16 The intervener contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs;
– in the alternative, refer the case back to the Board of Appeal.
III. Law
A. Law applicable ratione temporis
17 It is apparent from the contested decision, in particular from paragraphs 17, 57 and 123 thereof, that the Board of Appeal, inter alia, applied certain provisions of Regulation 2017/1001.
18 In that regard, it should be noted that, given the date on which the application for registration at issue was filed, namely 4 December 2015, which is decisive for the purposes 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).
19 Consequently, as regards the substantive rules, the references made by the Board of Appeal in the contested decision, by the applicant in the arguments put forward and by EUIPO to Article 8(1)(b) of Regulation 2017/1001, must be understood as referring to Article 8(1)(b) of Regulation No 207/2009, the wording of which is identical. Similarly, the references to Article 47(2) and (3) of Regulation 2017/1001 must be read as referring to Article 42(2) and (3) of Regulation No 207/2009, the wording of which is similar.
20 On the other hand, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001 and of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1).
B. The interpretation of the applicant’s heads of claim and the Court’s jurisdiction to hear and determine them
21 As regards the first head of claim seeking the revocation, by the Court, of the contested decision, it should be noted that, in accordance with Article 72(3) of Regulation 2017/1001, the Court may annul or alter the decisions of the Boards of Appeal. The revocation of a decision taken by EUIPO is, for its part, provided for by Article 103 of Regulation 2017/1001, which provides that the body which adopted a decision may revoke it under certain conditions (see, to that effect, judgment of 26 June 2018, Jumbo Africa v EUIPO – ProSiebenSat.1 Licensing (JUMBO), T‑78/17, not published, EU:T:2018:383, paragraph 13).
22 First of all, although the first head of claim in the application seeks to have the Court revoke the contested decision, it is nevertheless apparent from the grounds of the application that the purpose of the action is, in essence, merely to obtain the annulment of the contested decision. Similarly, it must be stated that the conditions for the application of Article 103 of Regulation 2017/1001 are not mentioned at all in the application and that the legal term ‘revoke’, used in that head of claim, does not correspond to any of the terms used in Article 72(3) of Regulation 2017/1001. Accordingly, it must be held that the first head of claim seeks the annulment of the contested decision.
23 Next, as regards the second head of claim, it must be held that the applicant seeks annulment of the decision of the Opposition Division of 28 October 2021 in so far as EUIPO rejected its application for registration of an EU trade mark in respect of the goods referred to in paragraph 10 above. However, in accordance with Article 72(3) of Regulation 2017/1001, actions may be brought before the General Court only against decisions of the Boards of Appeal of EUIPO (judgment of 26 April 2023, Pinar Kuruyemiş Gida Ve Ihtiyaç Maddeleri Sanayi Ticaret v EUIPO – Yadex International (pinar KURUYEMIŞ), T‑147/22, not published, EU:T:2023:213, paragraph 22). The second head of claim must therefore be rejected, since the Court does not have the power to annul a decision of the Opposition Division.
24 Lastly, the third head of claim, by which the applicant requests the Court to grant registration of the mark applied for in respect of all the goods and services referred to in its application of 4 December 2015, amounts to asking the Court to order EUIPO to register that mark (see, to that effect, judgment of 6 April 2022, Biogena v EUIPO – Alter Farmacia (NUTRIFEM AGNUBALANCE), T‑370/21, not published, EU:T:2022:215, paragraph 20).
25 In the context of the review based on Article 263 TFEU and Article 72(3) of Regulation 2017/1001, the Court has no jurisdiction to issue directions to EUIPO (see, to that effect, judgment of 6 April 2022, NUTRIFEM AGNUBALANCE, T‑370/21, not published, EU:T:2022:215, paragraph 21 and the case-law cited). It follows that the applicant’s third head of claim, by which it asks the Court, in essence, to give directions to EUIPO, must be rejected as having been brought before a court which has no jurisdiction to hear it.
26 It is therefore only with regard to the first head of claim in the application that the Court is in a position to address the merits of the action.
C. Substance
27 It is apparent from the broad logic of the application that the applicant relies on two pleas in law alleging, first, infringement of Article 8(1)(b) of Regulation No 207/2009 and, second, infringement of Article 42(2) and (3) of that regulation.
28 The Court considers it appropriate to deal with the action by examining the second plea in law first.
1. The second plea, alleging infringement of Article 42(2) and (3) of Regulation No 207/2009
29 In the context of the second plea, the applicant complains that the Board of Appeal erred in finding that the evidence produced before it by the intervener was sufficient to establish genuine use of the earlier mark. It submits that the evidence produced by the intervener shows use of that mark in a form which alters its distinctive character and points out in that regard that, according to the documentation submitted by the intervener before the Board of Appeal, that mark had been used in the following form:
30 The capital letter ‘s’ in the shape represented in paragraph 29 above, placed inside a square, is, according to the applicant, visually much bigger than the rest and occupies a central, or even predominant, position in the sign. The earlier sign is ‘characterised by the presence of the figurative element’, represented in paragraph 29 above, and gives the impression that consumers are in front of another trade mark.
31 EUIPO and the intervener dispute those arguments.
32 In that regard, it should be recalled that, under Article 42(2) and (3) of Regulation No 207/2009, an applicant for registration of an EU trade mark against which a notice of opposition has been filed may require proof that the earlier national mark, relied on in support of that opposition, has been put to genuine use during the five years preceding the date on which the application was published.
33 Furthermore, under Article 10(3) of Delegated Regulation 2018/625, evidence of use must concern the place, time, extent and nature of use of the earlier mark for the goods or services in respect of which it is registered and on which the opposition is based.
34 According to settled case-law, it follows from the provisions referred to in paragraphs 32 and 33 above, read also in the light of recital 10 in the preamble to Regulation No 207/2009, that the ratio legis for the requirement that the earlier mark must have been put to genuine use if it is to be capable of being used in opposition to a Community trade mark application is to restrict the number of conflicts between two marks, where there is no good commercial justification deriving from the active functioning of the mark on the market. On the other hand, those provisions are not intended to give rise to an assessment of an undertaking’s commercial success or a review of its economic strategy; nor are they intended to restrict trade-mark protection to cases where large-scale commercial use has been made of the marks (see judgment of 9 December 2014, Inter-Union Technohandel v OHIM – Gumersport Mediterranea de Distribuciones (PROFLEX), T‑278/12, EU:T:2014:1045, paragraph 26 and the case-law cited).
35 There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services, but genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark. Moreover, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see judgment of 9 December 2014, PROFLEX, T‑278/12, EU:T:2014:1045, paragraph 27 and the case-law cited).
36 In assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 9 December 2014, PROFLEX, T‑278/12, EU:T:2014:1045, paragraph 28 and the case-law cited).
37 As to the extent of the use to which the earlier trade mark has been put, account must be taken, in particular, of the commercial volume of the overall use, as well as the length of time for which the mark was used and the frequency of use (see judgment of 9 December 2014, PROFLEX, T‑278/12, EU:T:2014:1045, paragraph 29 and the case-law cited).
38 In order to determine whether use of an earlier trade mark is genuine, an overall assessment must be carried out which takes account of all the relevant factors in the particular case. That assessment entails a degree of interdependence between the factors taken into account. Thus, the fact that commercial volume achieved under the mark was not high may be offset by the fact that use of the mark was extensive or very regular, and vice versa (see judgment of 9 December 2014, PROFLEX, T‑278/12, EU:T:2014:1045, paragraph 30 and the case-law cited).
39 Genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of effective and sufficient use of the trade mark on the market concerned (see judgment of 9 December 2014, PROFLEX, T‑278/12, EU:T:2014:1045, paragraph 31 and the case-law cited).
40 The present plea in law must be examined in the light of those considerations.
41 As a preliminary point, it should be noted that the applicant does not put forward any argument against the Board of Appeal’s findings that the evidence submitted by the intervener was sufficient to satisfy the requirements relating to the time, place and extent of use of the earlier mark (see in particular paragraphs 26 to 40 of the contested decision). Similarly, it does not put forward any argument to call into question the Board of Appeal’s findings that the evidence in the file submitted by the intervener was sufficient to show that that mark was used for the goods in Classes 5 and 31, referred to in paragraph 6 above (see in particular paragraphs 52 to 55 of the contested decision). In the absence of any evidence in the Court’s file which would enable a conclusion to be reached other than that reached by the Board of Appeal as regards the time, place, extent of use and use as a trade mark, the Board of Appeal’s findings relating to those paragraphs must be upheld.
42 However, this does not apply to the calculation of the relevant period of use in the present case. In that regard, it must be held that the Board of Appeal made an error of assessment, which is the consequence of an error of law on its part.
43 As a result of the application of Article 47(2) and (3) of Regulation 2017/1001, the Board of Appeal concluded, in paragraph 18 of the contested decision, that the relevant period of use in the present case was that calculated by counting back from the filing date of the mark applied for, namely that between 4 December 2010 and 3 December 2015 inclusive. Indeed, if Article 47(2) and (3) of Regulation 2017/1001 were applicable in the present case, that finding of the Board of Appeal would have been correct.
44 It is the case, however, that the calculation of the relevant period of use in the present case must be carried out in accordance with Article 42(2) and (3) of Regulation No 207/2009, since, as stated in paragraphs 18 and 19 above, the substantive provisions of Regulation No 207/2009 must be taken into account. Under Article 42(2) and (3) of that regulation, the relevant period of use must be calculated by counting back from the date of publication of the trade mark application, namely 28 December 2015, and not from the filing date of the mark applied for, as would have been the case if Article 47(2) and (3) of Regulation 2017/1001 were applicable. Since the application for an EU trade mark filed by the intervener was published on 28 December 2015 (see paragraph 4 above), the five-year period referred to in Article 42(2) and (3) of Regulation No 207/2009 therefore runs from 28 December 2010 to 27 December 2015 inclusive and not from 4 December 2010 to 3 December 2015.
45 In that regard, leaving aside the fact that the applicant has not called into question the Board of Appeal’s error of assessment in determining the relevant period, it must be held that that error has no bearing on the merits of the contested decision.
46 According to the case-law, it is sufficient that a trade mark has been put to genuine use during part of the relevant period of use referred to in Article 42(2) and (3) of Regulation No 207/2009 (see, to that effect, judgment of 15 July 2015, TVR Automotive v OHIM – TVR Italia (TVR ITALIA), T‑398/13, EU:T:2015:503, paragraph 52).
47 Although the Board of Appeal assessed the evidence of use during the five-year period preceding the filing date of the earlier mark, namely from 4 December 2010 to 3 December 2015, that evidence remains relevant for proving genuine use of that mark during the five years preceding its publication, namely from 28 December 2010 to 27 December 2015 inclusive, since that evidence – listed, moreover, in paragraph 6 of the contested decision – all relates to the period between 28 December 2010 and 27 December 2015. As is apparent from the documents in the Court’s file, the evidence produced by the intervener before EUIPO, for the purposes of demonstrating genuine use of the earlier mark, covers the years 2011 to 2015.
48 As regards the question whether, as the applicant submits, in essence, the form in which the earlier mark was used during the relevant five-year period, namely the graphic representation set out in paragraph 29 above, constitutes an alteration of the distinctive character of that mark, it must be answered in the negative.
49 Indeed, contrary to what the applicant suggests and as the Board of Appeal noted, in essence, in paragraph 50 of the contested decision, although the letter ‘s’ is placed above the term ‘salvana’ in a larger size, it may be perceived as an abbreviation of that term. The same letter may also be perceived as a mere figurative element that emphatically announces the term ‘salvana’. However, none of those perceptions of that letter is capable of altering the distinctive character of the earlier mark as registered.
50 Furthermore, it must be borne in mind that, as regards the use of colours and other graphic features such as, for example, the typeface used to write the word ‘salvana’ and therefore the stylisation of that word, the owner of a word mark is free to choose graphic representations of such a mark, provided that they do not alter the distinctive character of that mark as registered (see, to that effect, judgment of 8 March 2023, Sympatex Technologies v EUIPO – Liwe Española (Sympathy Inside), T‑372/21, not published, EU:T:2023:111, paragraph 34).
51 In the present case, in addition to the presence of the capital letter ‘s’, the figurative elements to which the applicant refers are limited to the addition of a rectangular frame, a slight stylisation of the typeface and the use of the colours red and white. None of these elements is particularly striking. As EUIPO correctly submitted in its response, they have a purely decorative function and do not play a significant role in the overall impression produced by the earlier sign. Those graphic elements are merely ornaments which simply draw the relevant public’s attention to that mark, without altering its distinctive character. It follows, moreover, that the distinctive character of the earlier mark, in its graphic representation set out in paragraph 29 above, depends solely on the word element ‘salvana’, and not on the graphic elements accompanying it.
52 In the light of the foregoing, it must be concluded that the Board of Appeal was right to find that the intervener had demonstrated before it that there had been genuine use of the earlier mark for the goods referred to in paragraph 6 above.
53 In those circumstances, the second plea must be rejected.
2. The first plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
54 In the context of the first plea, the applicant complains, in essence, that the Board of Appeal erred in finding that there was a likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation No 207/2009, as regards the earlier mark and the mark applied for.
55 It is important to note in this connection that, under Article 8(1)(b) of Regulation No 207/2009, 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 is 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.
56 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. According to the same line of 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).
57 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
58 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, 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 76 and the case-law cited).
(a) The relevant public, its level of attention and the relevant territory
59 In paragraph 61 of the contested decision, the Board of Appeal found that the relevant public was composed of consumers likely to use both the goods covered by the earlier mark and the goods and services covered by the mark applied for. That assessment, which has not been disputed by the applicant, must be confirmed.
60 First, as regards the ‘foodstuffs for animals’ in Class 31 covered by the marks at issue, the Board of Appeal concluded, in paragraph 62 of the contested decision, that the relevant public consisted both of the general public and business consumers interested in ‘foodstuffs for animals’, displaying an average to above-average degree of attention.
61 Second, as regards the ‘food supplements and food additives for animals to enhance feeding effect’ in Class 5 covered by the earlier mark, the Board of Appeal found, in paragraph 64 of the contested decision, in essence, that those goods were aimed at the general public who will have an above-average level of attention with regard to those goods.
62 Third, as is apparent from paragraph 63 of the contested decision, according to the Board of Appeal, as regards the retail services relating to foodstuffs for animals and goods for animal care and hygiene in Class 35 covered by the mark applied for, the public at which these services are aimed is the general public with an average level of attention. By contrast, the wholesale services in respect of foodstuffs for animals and goods for animal care and hygiene in Class 35 covered by the same mark, target, according to the Board of Appeal, mainly a professional public consisting of business consumers, resellers or merchants. According to the applicant, that public has an above-average level of attention.
63 Fourth, no finding was made by the Board of Appeal as to what the relevant public might be as regards the sales services, via global computer networks, of foodstuffs for animals and goods for animal care and hygiene in Class 35 covered by the mark applied for. Nor does the contested decision make it possible to determine the level of attention of the relevant public, taken into account by the Board of Appeal, in its perception of the sales services, via global computer networks, of goods for animal care and hygiene.
64 As regards the relevant territory, the Board of Appeal found it to be Germany, in view of the fact that the earlier mark is a German trade mark (see paragraph 65 of the contested decision).
65 The applicant, for its part, confines itself to calling into question only the Board of Appeal’s assessments as regards the relevant public and its level of attention as regards the goods in Classes 5 and 31 covered by the earlier mark. In that regard, it submits that the goods covered by that mark are basically aimed at farmers, the effect of which is that the relevant public is composed of professionals ‘likely’ to display a higher level of attention.
66 EUIPO and the intervener dispute those arguments.
67 As a preliminary point, it must be borne in mind that, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of products 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).
68 First of all, the Board of Appeal’s assessments concerning Germany as the relevant territory for the purposes of determining the likelihood of confusion (see paragraph 65 of the contested decision), which, moreover, are not disputed by the applicant, must be upheld.
69 Next, as regards the relevant public and its level of attention, the following points should be made.
70 First, contrary to what the applicant claims, in essence, the ‘Food supplements and food additives for animals to enhance feeding effect’ in Class 5, covered by the earlier mark, are not aimed solely at farmers or even solely at breeders, but also at the general public, namely, inter alia, pet owners (see, to that effect and by analogy, judgment of 23 March 2022, Vetpharma Animal Health v EUIPO – Deltavit (DELTATIC), T‑146/21, not published, EU:T:2022:159, paragraphs 90 and 91). As regards the level of attention of that public, it must be held that it will be higher than average, in view of the fact that those goods concern a subject to which the owners of animals are sensitive, since they relate to animal health (see, to that effect and by analogy, judgment of 23 March 2022, DELTATIC, T‑146/21, not published, EU:T:2022:159, paragraphs 90 and 91).
71 Second, the ‘foodstuffs for animals’ in Class 31, covered by both the earlier mark and the mark applied for, are also aimed, inter alia, at the general public, whose level of attention will vary from average to above average (see, to that effect, judgment of 21 July 2016, Ogrodnik v EUIPO – Aviário Tropical (Tropical), T‑804/14, not published, EU:T:2016:431, paragraphs 26 and 27).
72 Third, as regards the wholesale services in relation to foodstuffs for animals and goods for animal care and hygiene and the retail services in relation to foodstuffs for animals and goods for animal care and hygiene in Class 35 covered by the mark applied for, it is necessary to confirm, in essence, the Board of Appeal’s findings, in paragraph 63 of the contested decision, which are not called into question by the applicant. According to that paragraph of the contested decision, the retail services at issue are aimed at the general public with an average level of attention, whereas the wholesale services at issue are aimed at professionals with an ‘above average’ level of attention. In that regard, it must be stated that those wholesaling services are aimed at a professional public with a level of attention which may be classified as high (see, to that effect, judgment of 21 December 2022, Sanrio v EUIPO – Miroglio Fashion (SANRIO CHARACTERS), T‑43/22, not published, EU:T:2022:844, paragraph 32). However, in so far as the expression used by the Board of Appeal to define the level of attention, namely ‘above average’, logically includes a high level of attention, no error of assessment on its part can be found.
73 Lastly, it is true that the Board of Appeal did not expressly set out its point of view as regards the definition of the relevant public and its level of attention in respect of the sales services, via global computer networks, of foodstuffs for animals and goods for animal care and hygiene in Class 35 covered by the mark applied for (see paragraph 63 above). However, that approach cannot be regarded as vitiated by error. In particular, no failure on the part of the Board of Appeal to state reasons can be found on that point. Although the Board of Appeal’s reasoning in paragraphs 63 and 111 of the contested decision is very succinct, the more detailed statement of reasons given in the decision of the Opposition Division must be taken into account. The Opposition Division had taken into consideration the high level of attention of the relevant public in respect of all the services in question, as is apparent from page 9 of that decision. Given that the Board of Appeal confirmed that decision in its entirety and in view of the continuity in terms of functions between the Opposition Divisions and the Boards of Appeal, as demonstrated by Article 64(1) of Regulation No 207/2009 (judgments of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 30, and of 10 July 2006, La Baronia de Turis v OHIM – Baron Philippe de Rothschild (LA BARONNIE), T‑323/03, EU:T:2006:197, paragraphs 57 and 58), that decision of the Opposition Division and its statement of reasons form part of the context in which the contested decision was adopted, a context which is known to the applicant and which enables the Court to carry out fully its judicial review as to whether the assessment of the likelihood of confusion was well founded (see, to that effect, judgment of 21 November 2007, Wesergold Getränkeindustrie v OHIM – Lidl Stiftung (VITAL FIT), T‑111/06, not published, EU:T:2007:352, paragraph 64).
74 In the present case, specifically, the Opposition Division stated, on page 9 of its decision, that ‘… the degree of attention [would] be average in respect of foodstuff[s] for animals and the sales services that relate to some goods for animal hygiene, whereas it [would] be high in respect of those goods that affect the state of health of animals [for example] food supplements and food additives for animals to enhance feeding effect’. It can be inferred from those clarifications by the Opposition Division, which cover all the services at issue before it, that, according to the Opposition Division, the sales services via global computer networks of foodstuffs for animals in Class 35, covered by the mark applied for, are also aimed, inter alia, at the general public with an average level of attention. The same clarifications by the Opposition Division demonstrate that, in its view, the sales services via global computer networks of goods for animal care and hygiene, in Class 35, covered by that mark, are also directed at the general public, which nevertheless displays a high level of attention.
75 Those findings, which the Board of Appeal implicitly accepted in the contested decision, must be upheld, bearing in mind that, moreover, those findings are not disputed by the applicant.
(b) Comparison of the goods and services
76 In paragraph 74 of the contested decision, the Board of Appeal found, in essence, that the ‘foodstuffs for animals’ in Class 5 covered by the marks at issue were identical. In paragraph 76 of that decision, the Board of Appeal found, in essence, that the ‘wholesaling, retailing and sale via global computer networks of foodstuffs for animals’ in Class 35 covered by the mark applied for displayed an average degree of similarity with the ‘foodstuffs for animals’ in Class 31 covered by the earlier mark. Furthermore, it is apparent, in essence, from paragraphs 76 to 81 of that decision that the Board of Appeal found that the wholesale, retail and sale via global computer networks of goods for animal care and hygiene in Class 35 covered by the mark applied for are similar to an average degree to ‘foodstuffs for animals’ in Class 31 and to ‘food supplements and food additives for animals to enhance feeding effect’ in Class 5, which are all covered by the earlier mark, on the ground that the definition of the goods for animal care and hygiene – to which those services covered by the mark applied for relate – encompasses both ‘foodstuffs for animals’ in Class 31 and ‘food supplements and food additives for animals to enhance feeding effect’ in Class 5.
77 Those findings of the Board of Appeal, which, moreover, are not disputed by the applicant, must be upheld.
(c) The comparison of the signs
78 The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs, be based on the overall impression given by those 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 proceed to analyse 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).
79 Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (see judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43 and the case-law cited).
80 In the present case, it is necessary to compare, on the one hand, the earlier word mark ‘salvana’ and, on the other hand, the figurative mark applied for, as reproduced in paragraph 2 above.
(1) The distinctive and dominant elements of the marks at issue and the inherent distinctiveness of the earlier mark
81 For the purposes of the comparison of the signs at issue, which must be made in order to assess the likelihood of confusion, account must be taken, in particular, of their distinctive and dominant components (see judgment of 3 September 2009, Aceites del Sur-Coosur v Koipe, C‑498/07 P, EU:C:2009:503, paragraph 60 and the case-law cited).
82 In the first place, as regards the earlier mark, the Board of Appeal found in paragraph 90 of the contested decision that, as a word mark, the representation of the earlier mark was irrelevant. That assessment makes it possible to conclude correctly that, as found by the Board of Appeal, there is no dominant element in that mark.
83 In paragraph 91 of the contested decision, the Board of Appeal found, as regards the earlier mark, that the word element ‘salvana’ displayed an average degree of distinctiveness, since that word had no meaning for the relevant German public. Those findings of the Board of Appeal, which moreover are not called into question by the applicant, must be upheld.
84 In the second place, in paragraphs 104 to 106 of the contested decision, the Board of Appeal found, in essence, that, in the absence of evidence from which it could be concluded that the earlier mark had an enhanced distinctive character, the assessment of the likelihood of confusion had to be carried out by taking into account the inherent distinctiveness of the earlier mark. That finding, which, moreover, is not disputed by the applicant, must also be confirmed.
85 In the third place, as regards the mark applied for, it is apparent from paragraph 91 of the contested decision that the word element ‘salvaje’ does not, according to the Board of Appeal, have a specific meaning for the relevant German public, but is, rather, a fantasy term. For that reason, that word element has an average degree of distinctiveness. In paragraphs 92 and 99 of that decision, the Board of Appeal found, in essence, that, in view of the fact that the goods and services at issue referred to animals, the figurative depiction of the head of a wolf or that of a Husky dog in the mark applied for displayed a weak distinctive character and was therefore less distinctive than the word element ‘salvaje’. The Board of Appeal continued its reasoning by stating, in paragraph 93 of that decision, that the word element ‘salvaje’ was more distinctive than the figurative element which accompanies it. Furthermore, it is apparent from paragraph 93 of the contested decision that the word element ‘salvaje’ and the figurative element, namely the head of a wolf or a Husky dog, are, according to the Board of Appeal, co-dominant in the mark applied for.
86 As regards those assessments by the Board of Appeal, the applicant puts forward a series of arguments which all relate solely to the question whether it is possible to conclude that the figurative element in the mark applied for displays a greater distinctive character than the word element ‘salvaje’ and whether that figurative element alone has a dominant position within the mark applied for. According to the applicant, that figurative element has a clear visual strength. It plays an important role in the overall impression produced by that mark, given its dimensions and location within the sign. It does not, in any event, have only the value of an ornamental feature.
87 EUIPO and the intervener dispute those arguments.
88 It is necessary to address the applicant’s arguments referred to in paragraph 86 above as follows.
89 First, it should be borne in mind that the assessment of the dominant character of one or more given components of a composite trade mark is carried out by taking into account, in particular, the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite mark (see, to that effect, judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).
90 In the present case, as regards the inherent qualities of the figurative component of the mark applied for, it must be stated that, although the figurative element is placed above the word ‘salvaje’, it is not superimposed on that word and does not overshadow it. The word ‘salvaje’ remains visible and relevant in terms of size within that mark. Nor does the figurative element have inherent qualities, for example a significant visual weight or a graphic representation likely to attract more attention than the standard typeface used for the word element ‘salvaje’. Therefore, the figurative component in the form of a wolf’s or Husky dog’s head does not, on its own, dominate the visual appearance of the mark applied for. The Board of Appeal rightly found that the figurative component and the word element are co-dominant in the mark applied for.
91 Second, in order to assess the distinctive character of an element making up 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, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgment of 24 September 2015, Primagaz v OHIM – Reeh (PRIMA KLIMA), T‑195/14, not published, EU:T:2015:681, paragraph 41).
92 The component representing the image of the head of a wolf or a Husky dog, which is at issue in the present case, conveys a semantic content which falls within the field of the goods and services at issue, in so far as those goods and services relate to animals. Therefore, that component has a weak distinctive character. Furthermore, the Board of Appeal was right to find that the word element ‘salvaje’ was the ‘more distinctive’ of the elements within the mark applied for (see paragraph 93 of the contested decision), since that element is meaningless for the German public.
93 Consequently, all the Board of Appeal’s assessments referred to in paragraph 85 above must be upheld.
(2) Visual comparison
94 In paragraph 95 of the contested decision, the Board of Appeal found, in essence, that there was an average visual similarity between the marks at issue. It based that conclusion on the fact that the word elements in the marks at issue (‘salvana’ and ‘salvaje’) have the same number of letters, namely seven. Furthermore, the first five letters, namely the letters ‘s’, ‘a’, ‘l’, ‘v’ and ‘a’, appear in exactly the same order in each of those marks. Moreover, those five identical letters appear at the beginning of the signs at issue, to which consumers generally attach more importance than to the endings of the signs (see paragraph 94 of the contested decision). Moreover, the terms ‘salvana’ and ‘salvaje’ are not accompanied by any figurative element capable of suggesting that German consumers would separate some letters from the others, in particular the last two letters of each sign (see paragraphs 97 and 98 of the contested decision). Furthermore, although it cannot be ignored, the figurative element consisting of the representation of an animal has a reduced impact on the visual comparison of the marks at issue (see paragraph 99 of the contested decision).
95 The applicant submits that the marks at issue have a different overall structure and display significant visual differences. The earlier mark is a word mark, whereas the mark applied for is a composite mark comprising both word and figurative elements. The figurative element in the mark applied for plays an important role in the overall impression created by that mark. Those marks differ as a result of the figurative elements of which the mark applied for consists, which have no counterparts in the earlier mark. Contrary to what the Board of Appeal stated, the fact that those marks have the same number of letters is not particularly significant. That factor is not sufficient, in itself, to conclude that there is visual similarity. Furthermore, the principle that consumers will generally focus their attention on the beginning of a mark cannot apply in all cases and does not call into question the principle that the similarity of the signs at issue must take into account the overall impression produced by those signs.
96 EUIPO and the intervener dispute those arguments.
97 As a preliminary point, it must be pointed out that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 13 September 2023, Korres v EUIPO – Naos (EST. KORRES 1996 HYDRA-BIOME), T‑328/22, not published, EU:T:2023:533, paragraph 72).
98 Furthermore, it must be borne in mind that, when a figurative mark containing word elements is compared visually to a word mark, the marks are held to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different fonts, in italics or bold, in lower case or upper case, or in colour (see judgment of 17 May 2023, Panicongelados-Massas Congeladas v EUIPO – Seder (panidor), T‑480/22, not published, EU:T:2023:266, paragraph 39).
99 In the present case, it must be stated that, with the exception of the letters ‘n’ and ‘a’ of the earlier mark and ‘j’ and ‘e’ of the mark applied for, the word element of which the earlier mark (‘salvana’) consists and the word element of the mark applied for (‘salvaje’) are identical in so far as five of their letters are the same and are placed in the same order. Furthermore, without it being necessary to determine to what extent there is a principle that consumers will generally focus their attention on the beginning of a mark or not, in the present case, as EUIPO in essence correctly pointed out in its response, there is no rationale for the relevant public to focus, respectively, on the different final two letters of each of the marks at issue, namely the letters ‘n’ and ‘a’ of the earlier mark and the letters ‘j’ and ‘e’ of the mark applied for, rather than on the first five identical letters. Those two words are, moreover, meaningless and will not be broken down by the relevant public.
100 Consequently, the Board of Appeal found, correctly, in essence, that there was an average visual similarity between the marks at issue.
(3) Phonetic comparison
101 In paragraph 100 of the contested decision, the Board of Appeal concluded, in essence, that the marks at issue were phonetically similar to an average degree. In support of that conclusion, it pointed out that those marks were composed of three syllables, the first two being identical. Although the last syllables of those marks are different, that difference cannot, according to the Board of Appeal, completely counteract the first two syllables, which are identical. Nor can those last syllables fully alter the sound structure and rhythm of the marks at issue when they are pronounced.
102 The applicant considers that there are significant differences between the German and English pronunciations of the elements ‘salvana’ and ‘salvaje’. Thus, in its view, the word element of the mark applied for will be pronounced as ‘sal’vaye’ in German and 
in English (like the English word ‘salvage’). Those differences are all the more notable because the marks at issue are not particularly long. Furthermore, the last syllables ‘je’ and ‘na’ alter the sound, intonation and rhythm of those marks, bearing in mind that the public tends to pronounce a whole word without omitting its end and that the comparison must be made by examining each of the marks at issue as a whole, since the consumer perceives a mark as a whole and does not analyse its different aspects.
103 EUIPO and the intervener dispute those arguments.
104 In the present case, in view of the fact that the relevant public is the German public, a non-negligible part of that public will pronounce the marks at issue as words composed of three syllables, namely ‘zal’va:na’ for the earlier mark and ‘zal’va:je’ for the mark applied for. Contrary to what the appellant claims, the written endings ‘je’ and ‘na’ do not alter the intonation. The tonic stress remains, for the relevant public, in those marks, always on the syllable ‘’va:’. The existence of the first two syllables, which are identical, and the fact that it is the second of those syllables which bears the tonic stress, support the conclusion that the marks at issue are phonetically similar, that similarity being average.
105 That conclusion is not called into question by the applicant’s argument that the relevant public will be able to pronounce the marks at issue by adopting the English pronunciation of the word ‘salvage’, namely . Admittedly, it is in no way inconceivable that part of the German public might choose to use such an ‘English’ pronunciation. That part of the relevant public is, however, negligible and therefore irrelevant for the purposes of the phonetic comparison to be carried out in the present case.
106 Nor is that conclusion called into question by the argument that the relevant public tends to pronounce the whole of a word without omitting the end and that the comparison must be made by examining each of the marks at issue as a whole, since the consumer perceives a mark as a whole and does not analyse its different aspects. Apart from the fact that the relevant public does not proceed to distinguish between pronounceable marks – whether word or figurative – according to their syllables and without omitting the end of the word in question, it must be considered that it recognises the identical syllables in any event and that those syllables may have a major impact on the overall impression of the marks at issue to be compared to the point of being able to find that those marks are phonetically similar.
107 It follows that the Board of Appeal was right to find that the marks at issue were phonetically similar to an average degree.
(4) Conceptual comparison
108 In paragraph 101 of the contested decision, the Board of Appeal found, in essence, that the result of the conceptual comparison between the marks at issue was neutral, given that the word elements in the two signs at issue were meaningless and that the figurative element in the mark applied for referred to the intended purpose of the goods concerned, which made it weakly distinctive.
109 The applicant challenges, in part, those findings of the Board of Appeal, arguing that the marks at issue are conceptually different, in view of the fact that it is ‘likely’ that the German public will associate the word element ‘salvaje’ with the English word ‘savage’. In any event, the existing conceptual differences counteract any similarity with the element ‘salva’, present in those marks.
110 EUIPO and the intervener dispute those arguments.
111 The applicant’s arguments referred to in paragraph 109 above must be rejected. In so far as the applicant claims that the German consumer will associate the word element ‘salvaje’ with the English word ‘savage’, which means ‘wild/feral’ (see paragraph 109 above), that argument is based on the premiss that the German public understands the English word ‘savage’. However, that has not been established.
112 On the one hand, according to the case-law, knowledge of a language in a territory can be assumed only as regards the native language in that territory (judgment of 20 October 2021, Roller v EUIPO – Flex Equipos de Descanso (Dormillo), T‑597/20, not published, EU:T:2021:722, paragraph 80). Knowledge of a foreign language cannot, in general, be assumed (judgment of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø), T‑399/20, EU:T:2021:442, paragraph 39).
113 On the other hand, it is true that linguistic knowledge of a foreign language may exceptionally be regarded as a well-known fact and must, as to the remainder, be put forward and proved by the party on whom the burden of proof lies (see judgment of 20 October 2021, Dormillo, T‑597/20, not published, EU:T:2021:722, paragraph 80 and the case-law cited). However, the applicant has not provided any evidence to support the claim that the German public would recognise the English word ‘savage’ in the Spanish term ‘salvaje’.
114 Moreover, it is true that the German public has a command of basic English vocabulary. However, the applicant has not shown that the term ‘savage’ actually formed part of that vocabulary.
115 It follows that there is no reason to assume that the vast majority of the relevant German public will understand the term ‘savage’. Consequently, there is no need to make a conceptual comparison of the marks at issue on the basis of the premiss that that public will recognise the meaning of the English word ‘savage’.
116 It follows from the foregoing that the applicant has not demonstrated the existence of an error of assessment vitiating the Board of Appeal’s finding that the result of the conceptual comparison of the marks at issue was neutral.
(d) The overall assessment of the likelihood of confusion
117 In paragraphs 107 to 122 of the contested decision, the Board of Appeal set out the factors which, in its view, made it possible to conclude in the context of a global analysis that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.
118 In that regard, first, the Board of Appeal recalled the finding that the goods in Class 31 covered by the mark applied for were identical to the goods covered by the earlier mark, whereas the services in Class 35 covered by the mark applied for were similar to an average degree to those covered by the earlier mark (see paragraph 109 of the contested decision). Second, it stated that the visual and phonetic similarities between those marks outweighed their differing elements, since the earlier mark was almost fully included in the mark applied for, its first five out of seven letters appearing in the same order at the beginning of the word element of the mark applied for. One of the differences between those marks lies in the presence of a figurative element in the mark applied for indicating the intended purpose of the goods at issue and being therefore less distinctive than the word elements. The other difference relates to the endings of the word elements at issue (see paragraph 110 of the contested decision). It is having regard to those factors, to the fact that consumers display an average or above-average level of attention, to the fact that the few judgments of the Courts of the European Union cited by the applicant during the proceedings before EUIPO have no bearing on the present case (see paragraphs 111 and 114 to 117 of the contested decision) and to the fact that the applicant has not demonstrated the coexistence of the earlier mark with other marks containing the element ‘salva’ (see paragraphs 118 and 119 of the contested decision) that, according to the Board of Appeal, there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 (see paragraph 122 of the contested decision).
119 The applicant calls those assessments into question by stating, in essence, that there are sufficient visual and phonetic differences between the marks at issue to rule out any likelihood of confusion. Those differences have an impact on all aspects of the comparison, namely on the structure of the signs, their pronunciation, intonation and meaning and, therefore, on the overall analysis to be carried out in the present case. Even taking into account the principle that consumers only rarely have the chance to make a direct comparison between the different marks but must place their trust in the imperfect image of them that they have kept in their minds, the differences between the marks at issue are sufficiently strong to allow the relevant public to distinguish them. The applicant goes on to point out that there are numerous trade marks in the European Union beginning with the element ‘salva’ which designate goods and services in Classes 5, 31 and 35. That is an indication that the differences between those marks, as a whole, are clearly sufficient for them to be able to coexist peacefully on the market, without creating a likelihood of confusion. In order to demonstrate that the differences between the signs at issue are sufficient to rule out a likelihood of confusion, the applicant cites three EUIPO decisions and a judgment of the General Court, all of which relate to opposition proceedings concerning certain marks. In addition, in support of its plea, the applicant produced, as Annex 8 to the application, a list of EU trade marks containing the sequence of letters ‘s’, ‘a’, ‘l’, ‘v’ and ‘a’.
120 EUIPO and the intervener dispute those arguments.
121 According to settled case-law, 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 (see, by analogy, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 19). It also follows from the case-law that the more distinctive the earlier mark, the greater will be the likelihood of confusion (judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24, and of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18). The likelihood of confusion varies according to the level of attention displayed by the relevant public (see judgment of 2 March 2022, UGA Nutraceuticals v EUIPO – Vitae Health Innovation (VITADHA), T‑149/21, not published, EU:T:2022:103, paragraph 106).
122 In the present case, it must be borne in mind that the Board of Appeal correctly took into account the inherent distinctiveness of the earlier mark (see paragraph 84 above). Thus, as has already been pointed out, the goods and services at issue are identical or similar, for the reasons set out in paragraph 76 above. The marks at issue are visually and phonetically similar to an average degree for the part of the relevant public (see paragraphs 100 and 107 above), whereas the result of their conceptual comparison is neutral (see paragraph 116 above). It must also be borne in mind that, as has previously been pointed out with regard to the ‘foodstuffs for animals’ in Class 31 covered by the two marks at issue, and as regards all retailing services and sales services via global computer networks of foodstuffs for animals in Class 35 covered by the mark applied for, consumers will display at least an average level of attention. Taking into account those factors and the fact that, according to the case-law, it is the lowest level of attention which must be taken into account in order to assess the likelihood of confusion where the relevant public consists of two categories of consumers each with a different level of attention (see judgment of 30 January 2019, Bekat v EUIPO – Borbet (ARBET), T‑79/18, not published, EU:T:2019:39, paragraph 23 and the case-law cited), it must be concluded that, when confronted with the mark applied for, the general public would be led to think that the goods and services covered by the mark applied for come from the same undertaking which markets the goods covered by the earlier mark. For those goods and services, there is therefore a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009, as is apparent, admittedly very succinctly, from paragraph 111 of the contested decision.
123 That conclusion also applies as regards the services relating to the sale, via global computer networks, of goods for animal care and hygiene and in respect of wholesale services for animal foodstuffs and goods for animal care and hygiene, in Class 35, covered by the mark applied for, which are intended for the general public or for a professional public, both displaying a high level of attention.
124 It is true that the categories of consumers referred to in paragraph 123 above will pay a high level of attention to sales services via global computer networks of goods for animal care and hygiene and to wholesale services for animal foodstuffs and goods for animal care and hygiene. However, the high level of attention on the part of the relevant public does not mean that it may automatically be concluded that there is no likelihood of confusion, since all the other factors must be taken into account (see judgment of 20 January 2021, Palírna U Zeleného stromu v EUIPO – Bacardi (BLEND 42 VODKA), T‑829/19, not published, EU:T:2021:18, paragraph 60 and the case-law cited).
125 In the present case, it is true that the mark applied for constitutes a composite mark containing a figurative element which somewhat complicates its graphic representation and, therefore, its overall impression, and which does not appear in any way in the earlier mark. However, that figurative element is only weakly distinctive in the mark applied for and is therefore not capable of overshadowing the word element ‘salvaje’. What is more, the consumer only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (judgments of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26, and of 30 June 2004, BMI Bertollo v OHIM – Diesel (DIESELIT), T‑186/02, EU:T:2004:197, paragraph 38). It follows that the consumer will compare the marks at issue by relying on the terms ‘salvana’ and ‘salvaje’, respectively, as he or she has remembered them. This applies not only to the general public, but also to the professional public with a high level of attention.
126 In that context, it must also be borne in mind that, where a trade mark is composed of word elements and figurative elements, the former are, as a rule, more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (judgment of 7 December 2022, Sanetview v EUIPO – 2boca2catering (Las Cebras), T‑159/22, not published, EU:T:2022:772, paragraph 34). However, it is also apparent from the case-law that, in a compound sign, the figurative element may occupy a position equivalent to the verbal element (see judgment of 24 November 2005, Simonds Farsons Cisk v OHIM – SpA Monopole (KINJI by SPA), T‑3/04, EU:T:2005:418, paragraph 47 and the case-law cited). In the present case, the consumers referred to in paragraph 123 above will refer to the marks at issue by citing the word elements ‘salvana’ and ‘salvaje’ respectively. As regards the mark applied for, they will not describe it by using the figurative element it contains.
127 Thus, for consumers with a high level of attention, the visual and phonetic similarity between the marks at issue, established above, loses none of its impact on the overall impression of those marks. For that reason, it must be concluded that even those consumers will be led to think that the services covered by the mark applied for come from the same undertaking which markets the goods covered by the earlier mark. For those services, there is therefore also a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009, as follows, in brief, from paragraph 111 of the contested decision.
128 The findings and assessments set out in paragraphs 122 to 127 above are not called into question by the applicant’s other arguments.
129 First, in so far as the applicant claims that there are, in the European Union, numerous marks which begin with the element ‘salva’ and cover goods and services in Classes 5, 31 and 35, which shows, according to the applicant, that the differences between the marks at issue are clearly sufficient for them to be able to coexist peacefully on the market (see paragraph 119 above), those arguments are manifestly insufficient to establish a peaceful coexistence on the market for those marks. According to the case-law, such a possibility can be taken into consideration only if, at the very least, during the proceedings before EUIPO concerning the examination of the relative grounds for refusal, the applicant for the EU trade mark duly demonstrated that such coexistence was based upon the absence of any likelihood of confusion on the part of the relevant public as regards the earlier marks upon which it relies and the earlier mark on which the opposition is based and provided that the marks which have coexisted are identical to the marks at issue (see judgment of 5 May 2015, Skype v OHIM – Sky and Sky IP International (skype), T‑423/12, not published, EU:T:2015:260, paragraph 66 and the case-law cited). The applicant’s arguments do not contain any evidence that any coexistence is based on the absence of a likelihood of confusion on the part of the relevant public as regards the earlier marks relied on. Moreover, those arguments do not even relate to the German public, which constitutes, in the present case, the relevant public.
130 Second, in so far as, in order to demonstrate that the differences between the signs at issue are sufficient to rule out a likelihood of confusion, the applicant cites a number of EUIPO decisions and a judgment of the Court, all of which relate to opposition proceedings concerning the registration of certain marks (see paragraph 119 above), the following points should be borne in mind.
131 First, the legality of the decisions which the Boards of Appeal of EUIPO are called on to take under Regulation No 207/2009, which are adopted in the exercise of circumscribed powers and are not a matter of discretion, must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of EUIPO’s previous decision-making practice, which cannot, in any event, bind the Courts of the European Union (judgments of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47; of 12 January 2006, Deutsche SiSi-Werke v OHIM, C‑173/04 P, EU:C:2006:20, paragraph 48; and of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
132 Second, for the same reasons set out above concerning the relevance of EUIPO’s decision-making practice, the applicant cannot rely validly on earlier judgments of the General Court in order to invalidate the Board of Appeal’s finding. The legality of the decisions of the Boards of Appeal must be assessed in the light of the marks at issue themselves (see, to that effect and by analogy, judgment of 21 December 2021, Skechers USA v EUIPO (ARCH FIT), T‑598/20, not published, EU:T:2021:922, paragraph 69).
133 Third, in so far as, in order to demonstrate that there is no likelihood of confusion, the applicant produced, as Annex 8 to the application, a list of EU trade marks containing the sequence of letters ‘s’, ‘a’, ‘l’, ‘v’ and ‘a’, it must be stated that such a list, which merely enumerates a certain number of marks, cannot in itself dispel the existence of a likelihood of confusion. That list does not make it possible to understand the perception, by the relevant German public, of the marks referred to therein and whether and to what extent those marks have actually been used on the market.
134 In those circumstances, the plea alleging infringement of Article 8(1)(b) of Regulation No 207/2009 must be rejected and, consequently, the action must be dismissed in its entirety.
IV. Costs
135 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.
136 Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is organised, it should be held, in the absence of a hearing, that EUIPO is to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Tiendanimal Comercio Electronico de Articulos para Mascotas, S.L, in addition to bearing its own costs, to pay those incurred by Salvana Tiernahrung GmbH;
3. Declares that the European Union Intellectual Property Office (EUIPO) shall bear its own costs.
Delivered in open court in Luxembourg on 24 January 2024.
V. Di Bucci | | M. van der Woude |