JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
28 May 2020 (*)
(EU trade mark — Opposition proceedings — Application for EU figurative mark GN GENETIC NUTRITION LABORATORIES — Earlier EU word mark GNC — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑333/19,
Christos Ntolas, residing in Wuppertal (Germany), represented by C. Renger, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by P. Sipos, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
General Nutrition Investment Co., established in Wilmington, Delaware (United States), represented by M. Rijsdijk, lawyer,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 11 March 2019 (Case R 1343/2017‑5), relating to opposition proceedings between General Nutrition Investment and Mr Ntolas,
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira, President, M. Kancheva and T. Perišin (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 30 May 2019,
having regard to the response of EUIPO lodged at the Court Registry on 8 August 2019,
having regard to the response of the intervener lodged at the Court Registry on 5 August 2019,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1 On 27 August 2014, the applicant, Mr C. Ntolas, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2 Registration as a mark was sought for the following figurative sign:
3 The goods in respect of which registration was sought are in Classes 5, 29 and 30 of the Nice Agreement Concerning the International Classification of Goods and Services for the purposes of Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
– Class 5: ‘Dietary supplements on the basis of trace elements; Vitamin preparations; Food supplements, not for medical purposes, with a base of carbohydrates, roughage, with added vitamins, minerals, trace elements; Food supplements, not for medical purposes, with a base of fats, fatty acids, with added vitamins, minerals, trace elements; Protein dietary supplements; Food supplements, not for medical purposes, with a base of proteins, with added vitamins, minerals, trace elements; Nutritional supplements; Mineral food supplements; Dietary supplements for humans; Dietary supplements and dietetic preparations; Dietary and nutritional supplements; Dietary and nutritional supplements; Dietary and nutritional supplements; Dietary supplemental drinks; Nutritional supplements; Flaxseed dietary supplements; Flaxseed oil dietary supplements; Propolis dietary supplements; Lecithin dietary supplements; Albumin dietary supplements; Pollen dietary supplements; Enzyme dietary supplements; Casein dietary supplements; Yeast dietary supplements; Wheat germ dietary supplements; Alginate dietary supplements; Royal jelly dietary supplements; Glucose dietary supplements; Health food supplements made principally of vitamins; Health food supplements made principally of minerals; Vitamin preparations in the nature of food supplements; Nutraceuticals for use as a dietary supplement’;
– Class 29: ‘Albumen for culinary purposes; Edible oils; Dietetic foodstuffs, not for medical purposes, with a base of fats, fatty acids, with added vitamins, minerals, trace elements; Dietetic food, not adapted for medical purposes, with a base of proteins, with added vitamins, minerals and trace elements; Oils and fats’;
– Class 30: ‘Dietetic foodstuffs, not for medical purposes, with a base of carbohydrates, roughage, with added vitamins, minerals, trace elements’.
4 The EU trade mark application was published in Community Trade Marks Bulletin No 171/2014 of 12 September 2014.
5 On 12 December 2014, the intervener, General Nutrition Investment Co., filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001), to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6 The opposition was based, inter alia, on the EU word mark GNC, registered on 9 August 2012 under No 10751841, designating goods and services in Classes 5, 29 and 35 and corresponding to the following description:
– Class 5: ‘Protein for human consumption’;
– Class 29: ‘Milk products’;
– Class 35: ‘Retail store services featuring health foods, dietary supplements, nutritional supplements, herbs, vitamins, sports nutrition products, fitness products and apparel, cosmetics, body care, diagnostic exercise or aromatherapy products’.
7 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
8 On 25 April 2017, the Opposition Division upheld the opposition in part. It rejected the opposition for the goods in Class 29 corresponding to the following description: ‘Albumen for culinary purposes; edible oils; oils and fats’.
9 On 21 June 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
10 By decision of 11 March 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. First, it found that the goods and services covered by the earlier mark and the goods in respect of which the Opposition Division had refused registration of the mark applied for were identical or similar. Secondly, it found that the relevant public was that of the European Union and that its level of attention was higher than average. Thirdly, as regards the similarity of the signs at issue, it found that they were visually similar to an average degree, phonetically similar to an average or high degree and that they were not conceptually similar. Lastly, the Board of Appeal found that the earlier mark’s distinctiveness was normal. It concluded from this that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
11 The applicant claims that the Court should:
– annul the contested decision;
– reject the opposition;
– order EUIPO to pay the costs.
12 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
13 The intervener contends that the Court should:
– dismiss the action;
– refuse the registration of the mark applied for;
– order the applicant to pay the costs, including those incurred during the opposition and appeal proceedings before EUIPO.
Law
Admissibility
14 The intervener contends that the mark applied for must be refused for all the contested goods in the opposition, including the goods in Class 29 for which the opposition was rejected by the Opposition Division, namely ‘albumen for culinary purposes; edible oils; oils and fats’.
15 In that respect, it must be stated that, before the Board of Appeal, the intervener did not challenge that part of the Opposition Division’s decision rejecting the opposition in respect of the goods ‘albumen for culinary purposes; edible oils; oils and fats’ in Class 29. That part of the decision has, therefore, become final and the intervener may not request the Court to annul it. Consequently, the intervener’s second head of claim must be declared inadmissible in so far as it relates to that part of that decision.
Substance
16 The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. He maintains that the Board of Appeal erred in finding a likelihood of confusion.
17 EUIPO and the intervener dispute the applicant’s arguments.
18 Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
19 According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
20 For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM — easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
21 The Court must examine in the light of the abovementioned principles whether the Board of Appeal was correct in finding that there was, in the present case, a likelihood of confusion between the marks at issue.
The relevant public
22 The Board of Appeal concluded that the relevant public was composed of both professionals in nutrition and medicine and the public at large and that, since the goods at issue could be regarded as having some impact on health, the level of attention of that public was higher than average. It concluded that the relevant territory was the European Union as a whole.
23 Those assessments of the Board of Appeal, which are not, moreover, disputed by the applicant, must be upheld.
The comparison of the goods and services
24 According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM — Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
25 In the present case, the Board of Appeal found that the goods and services covered by the earlier mark and the goods for which the Opposition Division had refused registration of the mark applied for were identical or similar. First, it considered that the goods covered by the mark applied for in Class 5 were similar to the retail services in Class 35 covered by the earlier mark. In that regard, it found a clear link between the retail of the goods and the goods themselves. Secondly, it considered that the goods covered by the mark applied for in Class 5 were also similar or highly similar or identical to protein for human consumption in Class 5 covered by the earlier mark. Lastly, the Board of Appeal concluded, in relation to the goods covered by the mark applied for in Classes 29 and 30, that they were similar to the services in Class 35 covered by the earlier mark.
26 The applicant submits, first, that the Board of Appeal erred in finding that the goods in Classes 5, 29 and 30 covered by the mark applied for were similar to the retail services in Class 35 covered by the earlier mark. He submits that, even if there is a link between the retail of the goods and the goods themselves, the relevant public, which has a high level of attention, will perceive the difference between the producer of goods and a retail shop that sells those goods. He adds, first, that nutritional supplement products are mostly sold in specialised shops which do not offer their own branded goods and, secondly, that the word ‘laboratories’ conveys to consumers the message that those goods had been developed by scientists and tested in a laboratory, since that public can distinguish between a retail store and a laboratory.
27 Secondly, the applicant submits that the Board of Appeal erred in finding that the goods in Class 5 covered by the mark applied for were similar to the goods in Class 5 covered by the earlier mark. He argues that those goods are similar to a low degree. In that regard, he states that minerals, trace elements, vitamins and fats in Class 5 covered by the mark applied for differ from the proteins in Class 5 covered by the earlier mark, in particular in so far as they have different effects on the human body. According to the applicant, there is no indication that the goods in Class 5 covered by the mark applied for could contain proteins.
28 EUIPO and the intervener dispute the applicant’s arguments.
29 As regards the similarity between goods and retail services, first, it must be pointed out, as is apparent from the case-law, that there is a similarity between goods and the retail services which relate to those goods (see judgment of 16 October 2013, El Corte Inglés v OHIM — Sohawon (fRee YOUR STYLe.), T‑282/12, not published, EU:T:2013:533, paragraph 37 and the case-law cited; judgment of 24 January 2019, Brown Street Holdings v EUIPO — Enesan (FIGHT LIFE), T‑800/17, not published, EU:T:2019:31, paragraph 27). Thus, since the goods in Classes 5, 29 and 30 covered by the mark applied for are the subject of the retail services in Class 35 covered by the earlier mark, their similarity cannot be denied.
30 The Board of Appeal was, therefore, fully entitled to find, in paragraphs 20 and 21 of the contested decision, that the goods in Classes 5, 29 and 30 covered by the mark applied for were similar to the services covered by the earlier mark in Class 35.
31 The finding referred to in paragraph 30 above cannot be called into question by the applicant’s argument that specialised shops do not sell their own branded goods, in that the applicant has not substantiated that claim at all. That finding also cannot be called into question by the applicant’s argument that the word ‘laboratories’ of the mark applied for conveys to consumers the message that those goods have been developed by scientists and tested in a laboratory. The analysis of the similarity between the goods and services at issue cannot be affected by a word element of the mark applied for.
32 Secondly, as regards the applicant’s argument that the Board of Appeal erred in finding that all the goods in Class 5 covered by the mark applied for were similar to the goods in Class 5 covered by the earlier mark, it is apparent from the description of the goods in Class 5 covered by the mark applied for that some of those goods contain proteins, namely protein dietary supplements, food supplements, not for medical purposes, with a base of proteins, albumin dietary supplements, enzyme dietary supplements and casein dietary supplements. Those goods are thus identical to the goods in Class 5 covered by the earlier mark. As regards the remaining goods in Class 5 covered by the mark applied for, it must be held that, taking into account that their intended purpose is to serve as supplements for human consumption, they are similar to the goods in Class 5 covered by the earlier mark.
33 Consequently, the Board of Appeal was fully entitled to find that the goods in Class 5 covered by the earlier mark and the goods in Class 5 covered by the mark applied for were at the very least similar, some of them even being highly similar or identical.
34 In those circumstances, the Board of Appeal did not err in finding that the goods in respect of which the Opposition Division had refused registration of the mark applied for were identical with or similar to the goods and services covered by the earlier mark.
The comparison of the signs
35 So far as concerns the visual, phonetic or conceptual similarity of the signs at issue, the comparison of the signs must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role. In that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
36 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 (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43). 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 (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
– The visual similarity
37 The Board of Appeal considered that the signs at issue were visually similar to an average degree, in so far as, taking into account that they had the letters ‘gn’ in common and that those letters were dominant within the mark applied for, the coincidence in those letters was clearly perceptible and had a stronger impact on the consumer than the letter ‘c’ of the earlier sign and the elements ‘genetic nutrition’ and ‘laboratories’, which were also depicted in a smaller font.
38 The applicant argues that the signs at issue are not visually similar. He submits, first, that the Board of Appeal erred in finding that the letters ‘g’ and ‘n’ are dominant in the mark applied for. He claims, in that regard, that notwithstanding the fact that the word elements of that mark, namely ‘genetic nutrition’ and ‘laboratories’, appear in smaller letters in relation to the letters ‘g’ and ‘n’ of that mark, the word element ‘genetic nutrition’ comprises two words, composed of seven and nine capital letters, respectively, and is as broad as the letters ‘g’ and ‘n’ mentioned above. Consequently, the relevant public would perceive that word element at once with those letters ‘g’ and ‘n’. The applicant adds that the word element ‘laboratories’ is displayed in an unusual way, which arouses the public’s interest. Thus, the Board of Appeal erred in not comparing the signs as a whole. Secondly, the applicant maintains that even if only the letters ‘g’ and ‘n’ of the mark applied for attracted the attention of the public, that public would be likely to notice the absence of the letter ‘c’ which is present in the earlier mark. He submits that, when faced with short signs, the relevant public is likely to perceive the differences between them more clearly (judgment of 4 May 2018, El Corte Inglés v EUIPO — WE Brand (EW), T‑241/16, not published, EU:T:2018:255, paragraph 35).
39 EUIPO and the intervener dispute the applicant’s arguments.
40 It must be borne in mind, first of all, 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 4 May 2005, Chum v OHIM — Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).
41 In the present case, the letters ‘g’ and ‘n’ of the mark applied for are depicted in a stylised way and in a large bold font, whereas the word element ‘genetic nutrition’ of that mark is smaller, has a simpler font and occupies a secondary position in the sign as a whole. As regards the term ‘laboratories’ of that mark, it must be noted that its representation is less visible in the mark when taken as a whole, given its smaller size and its position, which makes it more difficult to read. Accordingly, the letters ‘g’ and ‘n’ are likely to dominate, in themselves, the relevant public’s recollection of the image of the mark in question, with the result that, whilst not negligible, all the other components of such a mark are secondary, or distinctly secondary, in the overall impression created by that mark.
42 The Board of Appeal was, therefore, fully entitled to compare the signs at issue on the basis, in essence, of the letters ‘g’ and ‘n’, since they occupy a dominant position in the mark applied for.
43 It must be stated next that the dominant element of the mark applied for coincides with the two initial letters of the earlier mark, which consists solely in three letters. However, the addition of the letter ‘c’ at the end of the earlier mark has a weak impact on the visual comparison of the signs at issue.
44 In those circumstances, the Board of Appeal did not err in finding that the signs at issue were visually similar to an average degree.
– The phonetic similarity
45 As regards the phonetic comparison of the signs at issue in accordance with the rules of pronunciation of the English language, the Board of Appeal concluded that the earlier mark is pronounced as an acronym ‘g-n-c’, whereas the mark applied for is pronounced ‘gn-genetic nutrition’ or simply ‘g-n’. Those signs are, therefore, phonetically similar to an average degree or even high degree, when the word element ‘genetic nutrition’ of the mark applied for is not pronounced.
46 The applicant submits that the Board of Appeal erred concerning the pronunciation of the mark applied for by not taking into account the word ‘laboratories’. According to the applicant, the mark is pronounced ‘g-n-genetic nutrition laboratories’. The signs at issue are, therefore, phonetically different. The applicant adds that, even focusing only on the letters ‘g’ and ‘n’ of the mark applied for and the letters ‘g’, ‘n’ and ‘c’ of the earlier mark, the addition of the letter ‘c’ is sufficient to conclude that the phonetic similarity between those signs is low, given that those signs are short and that the slightest differences may have an impact on their perception by the relevant public.
47 EUIPO and the intervener dispute the applicant’s arguments.
48 In that regard, it should be noted that the earlier mark will be pronounced ‘G-N-C’, whereas the mark applied for will be pronounced ‘G-N-GENETIC NUTRITION’ or simply ‘G-N’, given the dominant character of the letters ‘g’ and ‘n’ of that latter mark. The signs at issue are, therefore, phonetically similar to an average degree.
49 Consequently, the Board of Appeal did not err in finding that the signs at issue were phonetically similar to an average degree or even high degree when the word element ‘genetic nutrition’ of the mark applied for is not pronounced.
– The conceptual similarity
50 The Board of Appeal found that since the earlier mark had no meaning, the signs at issue were not conceptually similar.
51 Those assessments of the Board of Appeal, which are not, moreover, disputed by the applicant, must be endorsed.
The likelihood of confusion
52 In the present case, the Board of Appeal found that the letter sequence ‘gn’, placed at the beginning of the marks at issue, created the impression of an acronym which has a meaning. In those circumstances, ‘those elements taken together’ are capable, in its view, of creating an economic link between the two undertakings, even in the mind of the public exhibiting a higher than average level of attention. It referred to the judgment of 27 September 2018, Ntolas v EUIPO — General Nutrition Investment (GN Laboratories) (T‑712/17, not published, EU:T:2018:618), in which the Court held that there was a likelihood of confusion between the marks GNC and GN Laboratories. Thus, the Board of Appeal concluded that, taking into account the similarities of the signs and the goods and services at issue, there was a likelihood of confusion between those marks, notwithstanding a higher degree of attention of the relevant public.
53 The applicant submits that the differences in the visual and phonetic perception of the signs at issue are sufficiently great to preclude any likelihood of confusion. First, he states that since the relevant public has a higher than average level of attention, it will distinguish between those signs, because that public will perceive the mark applied for as a whole, and that the Board of Appeal erred in finding that the word elements ‘genetic nutrition’ and ‘laboratories’ of the mark applied for should not be taken into account in the global assessment of the likelihood of confusion. Secondly, the Board of Appeal failed to take into account that short signs are easy to remember and that, contrary to what the Court stated in its judgment of 27 September 2018, GN Laboratories (T‑712/17, not published, EU:T:2018:618, paragraph 29), the relevant public, which has a higher level of attention, would remember the difference between a two-letter sign and a three-letter sign.
54 EUIPO and the intervener dispute the applicant’s arguments.
55 In that regard, as has been noted in paragraph 19 above, according to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case (judgment of 30 June 2015, La Rioja Alta v OHIM — Aldi Einkauf (VIÑA ALBERDI) (T‑489/13, EU:T:2015:446), paragraph 68 and the case-law cited).
56 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 concerned. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
57 For the purposes of that global assessment, the average consumer of the category of goods concerned is deemed to be reasonably well informed and reasonably observant and circumspect. However, account should be taken of the fact that the average 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. 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 (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26).
58 In the present case, having regard to all the relevant factors taken into account by the Board of Appeal in connection with the global assessment of the likelihood of confusion between the marks at issue and, in particular, the identical nature or similarity of the goods and services at issue (see paragraph 34 above), the average degree of visual similarity of the signs at issue (see paragraph 44 above), the average to high degree of phonetic similarity (see paragraph 49 above) and the earlier mark’s normal distinctiveness — which is, moreover, not disputed by the applicant before the Court — the Board of Appeal did not err in finding that there was a likelihood of confusion between those marks on the part of the relevant public referred to in paragraph 22 above, even taking into account a higher level of attention of that public.
59 As far as the applicant’s arguments are concerned, first, his argument that the relevant public, which has a high degree of attention, will perceive the differences between the marks must be rejected. The fact that the public in question pays more attention does not mean that it will examine the mark before it in the smallest detail or that it will compare it in minute detail to another mark (see judgments of 21 November 2013, Equinix (Germany) v OHIM — Acotel (ancotel.), T‑443/12, not published, EU:T:2013:605, paragraph 54 and the case-law cited, and of 13 March 2018, Kiosked v EUIPO — VRT (K), T‑824/16, EU:T:2018:133, paragraph 73 and the case-law cited). Moreover, it must be noted that it cannot be accepted that there are cases in which, owing to the level of attention displayed by the relevant public, any likelihood of confusion can, a priori, be ruled out. On the contrary, what is required is a global assessment of that likelihood on a case-by-case basis, as is required by the settled case-law cited in paragraph 19 above. In the context of that global assessment, the level of attention of the relevant public constitutes just one of the factors to be taken into consideration (judgments of 21 November 2013, ancotel., T‑443/12, not published, EU:T:2013:605, paragraphs 52 and 53, and of 13 March 2018, K, T‑824/16, EU:T:2018:133, paragraph 72).
60 Secondly, it must be recalled that, as is clear from paragraph 42 above, the Board of Appeal did not err in comparing the signs at issue on the basis, in essence, of the letters ‘g’ and ‘n’, since they occupy a dominant position in the mark applied for.
61 Consequently, the single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected and, therefore, without it being necessary to examine the admissibility of the applicant’s second head of claim requesting the Court to reject the opposition, 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. Since the applicant has been largely unsuccessful, he must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
63 The intervener has also claimed that the applicant should be ordered to pay the costs incurred by it in the administrative proceedings before EUIPO. In that regard, it must be borne in mind that, under Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. However, that does not apply to costs incurred for the purposes of the proceedings before the Opposition Division. Consequently, the intervener’s request that the applicant, since he has been unsuccessful, be ordered to pay the costs of the administrative proceedings before EUIPO can be granted only with regard to the costs necessarily incurred by the intervener for the purposes of the proceedings before the Board of Appeal (judgment of 14 November 2018, Foodterapia v EUIPO — Sperlari (DIETOX), T‑486/17, not published, EU:T:2018:778, paragraph 101). As regards those costs necessarily incurred before the Board of Appeal, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, it is the operative part in the contested decision which continues to determine the costs in question (see, to that effect, judgment of 28 February 2019, Lotte v EUIPO — Générale Biscuit-Glico France (PEPERO original), T‑459/18, not published, EU:T:2019:119, paragraph 194).
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Mr Christos Ntolas to bear his own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by General Nutrition Investment Co.
Delivered in open court in Luxembourg on 28 May 2020.
E. Coulon | | M. van der Woude |