JUDGMENT OF THE GENERAL COURT (Third Chamber)
7 June 2023 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark THE PLANET – Earlier EU figurative mark PLANÈTE + – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑47/22,
DDR Kultur UG (haftungsbeschränkt), established in Berlin (Germany), represented by I. Yeboah, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Bosse and D. Gája, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Groupe Canal+, established in Issy-les-Moulineaux (France), represented by M. Georges-Picot and C. Cuny, lawyers,
THE GENERAL COURT (Third Chamber),
composed of F. Schalin, President, P. Škvařilová-Pelzl and D. Kukovec (Rapporteur), 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 under Article 263 TFEU, the applicant, DDR Kultur UG (haftungsbeschränkt), seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 November 2021 (Case R 2385/2020-2) (‘the contested decision’).
Background to the dispute
2 On 17 July 2019, rave the planet GmbH, the predecessor in law to the applicant, filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3 The mark applied for covers services in, inter alia, Classes 35 and 41 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, for each of those classes, to the following description:
– Class 35: ‘Publication of printed matter for advertising purposes’;
– Class 41: ‘Music festival services; providing online electronic publications in the field of music, not downloadable; arranging of musical events; musical entertainment; organization of dancing events; dance events; planning and conducting of parties (entertainment); club (discotheque) services; providing online electronic publications, not downloadable; publication of printed matter’.
4 On 22 October 2019, the intervener, Groupe Canal+, filed a notice of opposition to registration of the mark applied for in respect of the services referred to in paragraph 3 above.
5 The opposition was based on the earlier figurative mark reproduced below, which covers, inter alia, services in Classes 35 and 41 corresponding, for each of those classes, to the following description:
– Class 35: ‘Business consultancy; professional business organisation and management assistance and consultancy for industrial and commercial companies; business information and advice; commercial advice for consumers (namely consumer information) relating to the choice of computer and telecommunications equipment; advertising; rental of advertising space; dissemination of advertisements; organisation of promotional and advertising operations to obtain customer loyalty; publicity columns preparation; direct mail advertising (tracts, prospectuses, printed matter, samples); mail-order advertising; subscriptions to audiovisual programmes, to audio and radio programmes, to newspapers; subscriptions to video recordings, to sound recordings, to audio and audiovisual media of all kinds; arranging subscriptions to all information, text, sound and/or image media and in particular in the form of electronic or non-electronic digital publications, multimedia products; arranging subscriptions to a television channel; arranging subscriptions to a telephone or computer services (the Internet); consultancy in the field of data acquisition on the Internet; publication of publicity texts; radio and television advertising; interactive advertising; business management; business administration; office functions; on-line advertising on a computer network; business information or enquiries; business research; commercial or industrial management assistance; employment agencies; business or industrial appraisals; accounting; document reproduction; computerized file management; database management services; data entry and processing, namely entry, collation, systematic ordering of data; arranging exhibitions and events for commercial or advertising purposes; sales promotion (for others); marketing research; auctioning; television promotion with sales offers (sales promotion for others); administrative management of exhibition sites for commercial or advertising purposes; public relations; rental of advertising time (on all means of communication); retail and wholesale trading of clothing, leather goods, jewellery, pens, stationery, games, playthings, sporting articles; retailing and wholesaling of audiovisual, computer and telecommunications goods, namely videotapes, televisions, video cassette recorders, personal stereos, tape recorders, radios, hi-fi equipment; decoders, mobile phones, computers, magnetic tapes, juke boxes for computers, printed circuits, integrated circuits, computer keyboards, compact discs (audio-video), compact discs (read-only memory), couplers (data processing equipment), floppy disks, magnetic data carriers, video screens, scanners, printers for use with computers, interfaces for computers, readers (data processing equipment), computer software (recorded programs), microprocessors, modems, monitors (computer hardware), monitors, computer programs, computers, computer memories, computer peripheral devices, computer programs, recorded, processors (central processing units), computer operating programs, recorded, chips (integrated circuits), retail of aerials; newsclipping services’;
– Class 41: ‘Providing of training; providing of training; entertainment; radio and television entertainment on media of all kinds, namely television, computer, personal stereo, personal video player, personal assistant, mobile phone, computer networks, the Internet; leisure services; sporting and cultural activities; animal training; production of shows, films and television films, of television broadcasts, of documentaries, of debates, of video recordings and sound recordings; rental of video recordings, films, sound recordings, video tapes; motion picture rental; rental of movie projectors; audiovisual apparatus and instruments of all kinds, radios and televisions, audio and video apparatus, cameras, personal stereos, personal video players; theater decorations; production of shows, films, audiovisual, radio and multimedia programs; movie studios; arranging competitions, shoes, lotteries and games relating to education or entertainment; production of audiovisual, radio and multimedia programs, text and/or still or moving images, and/or sound, whether musical or not, and/or ring tones, whether or not for interactive purposes; arranging exhibitions, conferences, seminars for cultural or educational purposes; booking of seats for shows; news reporter services; photography, namely photographic services, photographic reporting; videotaping; consultancy relating to the production of video programs; game services provided online from a computer network, gaming; casino facilities; editing and publication of text (except publicity texts), sound and video media, multimedia (interactive discs, compact discs, storage discs); electronic online publication of periodicals and books; publication and lending of books and texts (except publicity texts); providing movie theatre facilities; micro publishing’:
6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7 On 7 December 2020, the Opposition Division upheld the opposition in respect of all the services referred to in paragraph 3 above.
8 On 15 December 2020, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9 By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO to pay the costs.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
12 The intervener contends, formally, that the Court should:
– dismiss the action;
– uphold the contested decision;
– order the applicant to pay the costs, including those incurred before EUIPO.
Law
The intervener’s first and second heads of claim
13 By its first head of claim, the intervener contends that the action should be dismissed and, by its second head of claim, it requests that the Court uphold the contested decision.
14 However, since ‘uphold the contested decision’ is tantamount to dismissing the action, the intervener’s first two heads of claim must be regarded as seeking solely the dismissal of the action (see, to that effect, judgment of 15 October 2020, Body Attack Sports Nutrition v EUIPO – Sakkari (SAKKATTACK), T‑851/19, not published, EU:T:2020:485, paragraph 18 and the case-law cited).
The issue of whether the arguments which have allegedly been submitted for the first time before the Court are admissible
15 The intervener claims, in its response, that the applicant has submitted a number of new arguments for the first time before the Court, which must, for that reason, be considered to be inadmissible.
16 First, according to the intervener, the applicant has submitted for the first time before the Court that, for the purposes of the assessment of the likelihood of confusion, it was necessary to take into account not only the French-speaking public in the European Union, but also the English-speaking public. Secondly, it takes the view that, in the context of the comparison of the signs, in paragraphs 49 to 54 of the application, the applicant has put forward new arguments regarding its activities and those of the intervener. Thirdly, it submits that, in the context of the comparison of the signs, in paragraphs 33 and 34 of the application, the applicant has submitted, for the first time before the Court, that the mark applied for does not contain a figurative element, but rather the word element ‘rave’ written in a specific font, which constitutes the largest part of that mark.
17 The applicant claims that it has not raised any new arguments for the first time before the Court. According to the applicant, all the arguments the admissibility of which is disputed by the intervener are merely a development of the arguments which have already been submitted before the adjudicating bodies of EUIPO.
18 EUIPO contends, first, that the applicant’s arguments regarding the taking into account of the relevant English-speaking public are admissible because, on the one hand, what is involved concerns an issue on which the Board of Appeal necessarily had to rule and, on the other hand, those arguments are based on an obvious fact. Secondly, it submits that the arguments regarding the activities of the applicant and the intervener have been submitted for the first time before the Court and must be considered to be inadmissible. Thirdly, EUIPO contends that the applicant’s arguments regarding the perception of the element in question in the mark applied for had already been put forward before the adjudicating bodies of EUIPO and are therefore admissible.
19 In that regard, it is true that, under Article 188 of the Rules of Procedure of the General Court, the pleadings lodged by the parties in proceedings before the General Court may not change the subject matter of the proceedings before the Board of Appeal.
20 It must also be pointed out that, according to settled case-law, the purpose of Article 72(2) of Regulation 2017/1001 is a review of the legality of decisions of the Boards of Appeal. Pursuant to Article 95 of that regulation, that review must be carried out in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 13 July 2022, Brand Energy Holdings v EUIPO (RAPIDGUARD), T‑573/21, not published, EU:T:2022:450, paragraph 79 and the case-law cited).
21 As regards the factual context, it is also apparent from the case-law that it is not the Court’s function to review the facts in the light of evidence which has been produced for the first time before it. Facts which are pleaded before the Court without having previously been produced before the adjudicating bodies of EUIPO can affect the legality of such a decision only if EUIPO should have taken them into account of its own motion (see judgment of 13 May 2020, Peek & Cloppenburg v EUIPO – Peek & Cloppenburg (Peek & Cloppenburg), T‑446/18, not published, EU:T:2020:187, paragraph 39 and the case-law cited).
22 As regards the legal context, it must be pointed out that, according to the case-law, Article 95 of Regulation 2017/1001 and Article 188 of the Rules of Procedure cannot be interpreted as meaning that arguments seeking to call into question considerations of the Board of Appeal relating to issues on which it is required to take a decision do not form part of the subject matter of the proceedings before the General Court if they have not been put forward during the proceedings before the Board of Appeal (judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 42).
23 It is in the light of those principles that the issue, raised by the intervener, of whether the applicant’s arguments are admissible must be examined.
24 First, so far as concerns the admissibility of the applicant’s arguments regarding the taking into account of the English-speaking public, it must be borne in mind that, under Article 8(1)(b) of Regulation 2017/1001, infringement of which had been alleged by the applicant before the Board of Appeal, it is necessary to assess the likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. Consequently, as EUIPO submits, the definition of the relevant public constitutes one of the issues on which the Board of Appeal must, for the purposes of assessing whether there is any likelihood of confusion, necessarily rule. Accordingly, in the light of the case-law which has been referred to in paragraph 22 above, the applicant’s arguments regarding the definition of the relevant public, which have been put forward for the first time before the Court, cannot alter the legal context of the dispute and be regarded, on that ground, as inadmissible.
25 Secondly, as regards the admissibility of the applicant’s arguments concerning its activities and the intervener’s activities, arguments which have been put forward in the context of the comparison of the signs, it must be stated that it is apparent from the case file that the applicant had relied on those arguments both before the Board of Appeal and before the Opposition Division. Consequently, the intervener’s claim that those arguments have been put forward for the first time before the Court has no factual basis and must be rejected.
26 Thirdly, so far as concerns the admissibility of the applicant’s arguments regarding the perception of the element in question in the mark applied for, it is necessary to distinguish between two types of claim in that regard.
27 First, it must be observed that the factual circumstances regarding the existence and use of a specific font in the presentation of the element in question have been referred to for the first time before the Court. They could not and did not therefore have to be taken into consideration by the Board of Appeal. Consequently, taking those circumstances into account would, for the purposes of the case-law cited in paragraph 21 above, change the factual context of the dispute before the Court. The applicant’s arguments in that regard must therefore be considered to be inadmissible.
28 Secondly, the assessment of the relevant public’s perception of the element at issue forms part of the analysis of the comparison of the marks at issue which, under Article 8(1)(b) of Regulation 2017/1001, constitutes one of the factors which must be taken into account for the purposes of assessing whether there is a likelihood of confusion. Consequently, for the purposes of the case-law referred to in paragraph 22 above, that argument cannot be considered to be inadmissible.
29 In the light of the foregoing, it must be held that the applicant’s arguments must be considered to be inadmissible in so far as they are based on the factual circumstances regarding the use of a specific font in the mark applied for. By contrast, all the other arguments the admissibility of which is disputed by the intervener must be considered to be admissible.
The merits of the single plea in law
30 In support of the action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001.
31 It is important to bear in mind that 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.
32 The single plea is divided, in essence, into five parts, alleging incorrect assessments as regards, first, the relevant public and its level of attention, secondly, the comparison of the services, thirdly, the comparison of the signs, fourthly, the distinctive character of the earlier mark and, fifthly, the global assessment of the likelihood of confusion.
33 As a preliminary point, in so far as the intervener, by its letter lodged at the Court Registry on 7 December 2022, referred to EUIPO’s decision-making practice which, in its view, must be taken into account in the present case, it should be noted that the decisions concerning the registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on that of EUIPO’s decision-making practice (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
The first part, alleging an error in the assessment of the relevant public
34 According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of services 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 services in question (see judgment of 27 April 2022, LG Electronics v EUIPO – Anferlux-Electrodomésticos (SmartThinQ), T‑181/21, not published, EU:T:2022:247, paragraph 101 and the case-law cited).
35 In the first place, the Board of Appeal found that the services at issue in Class 35 were aimed at consumers who were professionals and displayed a higher than average level of attention, whereas the services at issue in Class 41 were aimed at the general public, the level of attention of which varied from average to high, depending on the cost involved, and at professionals who displayed a higher than average level of attention.
36 In that regard, the applicant claims, in essence, that the Board of Appeal did not differentiate between the levels of attention of the relevant public in relation to the services covered by each of the marks at issue. According to the applicant, it is necessary to take into account the fact that its portfolio is that of an organiser of musical events, whereas the portfolio of services covered by the earlier mark is mainly focussed on television productions. In particular, it submits that, on account of the presence of the word ‘rave’ in the mark applied for, that public will identify that what is involved here concerns a specific events segment which has become well known through the ‘Love Parade’ and, as a result, that public will display a higher level of attention in relation to the services covered by that mark.
37 It must be pointed out, as observed by EUIPO and the intervener, that what matters, for the purposes of assessing whether there is a likelihood of confusion, are not the specific conditions under which the services of the applicant or the intervener are marketed, but the description of the services covered by the earlier mark and by the mark applied for (see, to that effect, judgment of 28 February 2014, Genebre v OHIM – General Electric (GE), T‑520/11, not published, EU:T:2014:100, paragraph 27 and the case-law cited).
38 The services covered by the mark applied for are not, however, in their description, confined to the organisation of specific musical events which are known through the ‘Love Parade’. They include a broader variety of various services connected with, inter alia, the musical events sector.
39 Consequently, since the applicant’s claims are not apparent from the description of the services at issue, but are based rather on the specific conditions in which those services are provided, the applicant’s argument regarding the relevant public’s level of attention must, in the light of the case-law referred to in paragraph 37 above, be rejected. The Board of Appeal’s findings in that regard, as summarised in paragraph 35 above, must be held to be correct.
40 In the second place, the applicant complains that the Board of Appeal did not, for the purposes of assessing the likelihood of confusion, take into account the English-speaking part of the relevant public, pointing out, inter alia, that the word element ‘planet’ in the mark applied for is an English word.
41 In that regard, it is sufficient to state, as observed by EUIPO, that, according to the case-law, a likelihood of confusion for part of the relevant public is sufficient for registration of the mark applied for to be refused (see judgment of 16 May 2017, AW v EUIPO – Pharma Mar (YLOELIS), T‑85/15, not published, EU:T:2017:336, paragraph 49 and the case-law cited). Accordingly, since the Board of Appeal found that there was a likelihood of confusion on the part of the French-speaking public in the European Union, there was no need to rule on the likelihood of confusion for the other parts of the relevant public, in particular for the English-speaking part of that public. The applicant’s argument must thus be rejected.
42 It must therefore be held that the Board of Appeal did not err in so far as it decided to assess the likelihood of confusion with regard to the French-speaking part of the relevant public.
43 In the light of the foregoing, the first part of the single plea must be rejected.
The second part, alleging an error of assessment in the comparison of the services
44 According to settled case-law, in assessing the similarity of the services at issue, all the relevant factors relating to those services should be taken into account. Those factors include, in particular, their nature, their intended purpose, 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 services concerned (see judgment of 8 July 2020, Scorify v EUIPO – Scor (SCORIFY), T‑328/19, not published, EU:T:2020:311, paragraph 39 and the case-law cited).
45 As regards the services at issue in Class 35, the Board of Appeal found that the services of ‘publication of printed matter for advertising purposes’ covered by the mark applied for were identical to the services of ‘publication of publicity texts’ covered by the earlier mark.
46 As regards the services at issue in Class 41, the Board of Appeal found, first, that the ‘music festival services; arranging of musical events; musical entertainment; organization of dancing events; dance events; planning and conducting of parties (entertainment); club (discotheque) services’ covered by the mark applied for were identical to the ‘entertainment’ services covered by the earlier mark. Next, the Board of Appeal found that the ‘publication of printed matter’ covered by the mark applied for was also identical to the services of ‘publication and lending of books and texts (except publicity texts)’ covered by the earlier mark. Lastly, it concluded that the services of ‘providing online electronic publications in the field of music, not downloadable; providing online electronic publications, not downloadable’ covered by the mark applied for were similar to the services of ‘electronic online publication of periodicals and books’ covered by the earlier mark.
47 The applicant claims that the Board of Appeal erred in finding that the services at issue were identical or similar, except as regards the identity between the services of ‘publication of printed matter’ in Class 41 covered by the mark applied for and the services of ‘publication and lending of books and texts (except publicity texts)’ in the same class covered by the earlier mark.
48 EUIPO, supported by the intervener, disputes the applicant’s arguments.
49 In the first place, the Board of Appeal found that the services of ‘publication of printed matter for advertising purposes’ in Class 35 covered by the mark applied for were identical to the services of ‘publication of publicity texts’ in the same class covered by the earlier mark, because they overlap.
50 The applicant submits that the services concerned should be considered to be, at most, similar and not identical. According to the applicant, the services of ‘publication of printed matter for advertising purposes’ covered by the mark applied for concern promotional material printed on paper, whereas the services of ‘publication of publicity texts’ covered by the earlier mark relate to the digital distribution of texts.
51 As is submitted by EUIPO and the intervener, the services of ‘publication of publicity texts’ covered by the earlier mark include not only the digital distribution of those texts, but also the publication of the printed versions of those texts. Consequently, those services include, inter alia, the services of ‘publication of printed matter for advertising purposes’ covered by the mark applied for.
52 According to the case-law, where the goods or services covered by the earlier mark include the goods or services covered by the trade mark application, those goods or services are considered to be identical (see, to that effect, judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited).
53 Consequently, the Board of Appeal was right in finding that the services of ‘publication of printed matter for advertising purposes’ covered by the mark applied for are identical to the services of ‘publication of publicity texts’ covered by the earlier mark. The applicant’s argument must therefore be rejected.
54 In the second place, the Board of Appeal found that the ‘music festival services; arranging of musical events; musical entertainment; organization of dancing events; dance events; planning and conducting of parties (entertainment); club (discotheque) services’ in Class 41 covered by the mark applied for were included in the broad category of, or overlapped with, the ‘entertainment’ services in the same class covered by the earlier mark. For that reason, it concluded that they were identical.
55 According to the applicant, the services concerned cannot be associated with each other. In that regard, it submits, in essence, that those services are provided in different sectors and that therefore the relevant public identifies the applicant as an organiser of musical events, whereas the intervener is known by that public as a broadcaster or media producer.
56 In the present case, it must be held, as EUIPO found, that the ‘music festival services; arranging of musical events; musical entertainment; organization of dancing events; dance events; planning and conducting of parties (entertainment); club (discotheque) services’ covered by the mark applied for are all included in the broader category of the ‘entertainment’ services covered by the earlier mark. In accordance with the case-law referred to in paragraph 52 above, those services must therefore be considered to be identical.
57 That finding cannot be called into question by the applicant’s arguments.
58 First, as regards the applicant’s claim regarding the generic nature of the term ‘entertainment’, it is true that that term covers a very wide variety of services and could possibly be regarded as lacking clarity or precision. However, it must be borne in mind, in that regard, that, according to the case-law, any lack of clarity and precision regarding the services covered by the earlier mark would not be capable of precluding, in opposition proceedings, those services and the services covered by the earlier mark from being compared for the purposes of assessing the likelihood of confusion (see, to that effect, judgment of 24 February 2021, Bezos Family Foundation v EUIPO – SNCF Mobilités (VROOM), T‑56/20, not published, EU:T:2021:103, paragraphs 30 and 31 and the case-law cited).
59 Secondly, so far as concerns the applicant’s argument regarding the lack of identity between the services concerned on account of the difference between the sectors in which those services are provided, it is sufficient to state that, according to well-established case-law, in order to compare those services, for the purposes of Article 8(1)(b) of Regulation 2017/1001, the group of services protected by the marks at issue must be taken into account and not the services actually marketed under those marks (see, to that effect, judgment of 13 October 2017, Sensi Vigne & Vini v EUIPO – El Grifo (CONTADO DEL GRIFO), T‑434/16, not published, EU:T:2017:721, paragraph 36 and the case-law cited). Consequently, in the light of that case-law, the applicant’s argument which is at issue must be rejected.
60 In the third place, the Board of Appeal found that the services of ‘publication of printed matter’ in Class 41 covered by the mark applied for overlapped with the services of ‘publication and lending of books and texts (except publicity texts)’ in the same class covered by the earlier mark, with the result that they were identical. There is nothing in the file which is capable of calling into question that assessment, which is not, moreover, disputed by the applicant.
61 In the fourth place, the Board of Appeal found that the services of ‘providing online electronic publications in the field of music, not downloadable; providing online electronic publications, not downloadable’ in Class 41 covered by the mark applied for were similar to the services of ‘electronic online publication of periodicals and books’ in the same class covered by the earlier mark, as they had the same purpose. Furthermore, according to the Board of Appeal, they usually coincided in their producer and their relevant public.
62 The applicant submits that the services concerned do not have the same purpose, stating that its and the intervener’s business sectors are different.
63 The applicant’s argument must be rejected for the same reasons as those which have been set out in paragraph 59 above. It must be stated that, on account of their purpose and of the fact that the services concerned have producers or a relevant public in common, the Board of Appeal did not err in finding that those services were similar.
64 In the light of the foregoing, it must be held that the analysis of the comparison of the services at issue, as carried out by the Board of Appeal, is correct. Consequently, the second part of the single plea must be rejected.
The third part, alleging an error of assessment in the comparison of the signs
65 The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
66 Consequently, before dealing with the issue of the visual, phonetic and conceptual similarity of the signs at issue, it is necessary to examine the Board of Appeal’s assessment of their distinctive and dominant elements.
– The distinctive and dominant elements of the signs at issue
67 The Board of Appeal found, in essence, first, that the words ‘planète’ and ‘planet’ were the most distinctive elements in the signs at issue. Secondly, it took the view that neither of those signs contained elements which could be considered to be more visually dominant than others.
68 The applicant disputes that finding on the part of the Board of Appeal. It submits, in essence, that the most distinctive and dominant elements in the signs at issue are, on the one hand, the word ‘rave’ and the graphic representation of that word in the mark applied for and, on the other hand, the figurative element of the earlier mark.
69 EUIPO, supported by the intervener, disputes the applicant’s arguments.
70 In the first place, it is necessary to determine the elements which comprise the signs at issue.
71 First, as the Board of Appeal found, the earlier mark consists of the word element ‘planète’ written in upper-case letters in a white font, which is followed by a ‘+’ symbol that is stylised in the same way. Those two elements are placed inside a figurative element which consists of a grey rectangle placed against a red circle. The parties do not dispute those facts.
72 Secondly, the mark applied for consists, on the one hand, of the words ‘the’ and ‘planet’ written in upper-case letters and represented in a standard black font and, on the other hand, of an element which the Board of Appeal found to be figurative. According to the Board of Appeal, even though part of the relevant public might see the word ‘rave’ in that latter element, it would be perceived, by a non-negligible part of that public, as an abstract figurative element. For that reason, the Board of Appeal carried out its analysis on the basis of the latter assumption.
73 The applicant disputes the Board of Appeal’s finding that the mark applied for contains an abstract figurative element. It submits that, since the relevant public will make out the three letters ‘r’, ‘a’ and ‘v’, it will identify a word element consisting of the word ‘rave’.
74 It is true that it cannot be ruled out that part of the relevant public will identify the word ‘rave’ in the mark applied for. However, as EUIPO and the intervener submit, it also cannot be ruled out that a non-negligible part of that public will not make out that word. In particular, it should be noted that even the letters ‘r’, ‘a’ and ‘v’ are not easily recognisable, whereas the letter ‘e’ is almost illegible. There will therefore be at least a non-negligible part of the relevant public which will perceive the element in question as an abstract figurative element and not as a word element. Consequently, contrary to what the applicant claims, the Board of Appeal correctly based its analysis on that latter assumption.
75 In the second place, it is necessary to determine the distinctive elements of the signs at issue.
76 According to the case-law, for the purposes of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 1 June 2022, Krasnyj Octyabr v EUIPO – Pokój (Pokój TRADYCJA JAKOŚĆ KRÓWKA SŁODKIE CHWILE Z DZIECIŃSTWA TRADYCYJNA RECEPTURA), T‑355/20, not published, EU:T:2022:320, paragraph 41 and the case-law cited).
77 In the present case, the Board of Appeal found, first, that the word elements ‘planète’ and ‘planet’, in the earlier mark and in the mark applied for respectively, had a normal degree of distinctiveness, whereas the figurative elements included in those marks had a less significant impact on the overall impression created by those marks. Secondly, it found that the symbol ‘+’ in the earlier mark lacked distinctive character and that the word element ‘the’ was less distinctive than the word ‘planet’ which it specified.
78 The applicant claims that the Board of Appeal incorrectly identified the most distinctive elements in the signs at issue. It submits, in essence, that the word elements ‘planet’ and ‘planète’ are only weakly distinctive, whereas the figurative elements play a decisive role in the overall impression created by those signs. It also submits that the symbol ‘+’ in the earlier mark has distinctive character.
79 First, so far as concerns the applicant’s argument regarding the weak distinctive character of the word elements ‘planet’ and ‘planète’ in the signs at issue, it must be pointed out, to begin with, that the Board of Appeal was right in finding that those words did not convey any clear and specific meaning in relation to the services at issue, which are, in principle, various entertainment and publishing services.
80 In that regard, it must be stated that, contrary to what the applicant claims, the word element ‘planète’ in the earlier mark cannot be regarded as relating to the concept of ‘world’ and therefore as being descriptive of the content of the services covered by that mark, such as, inter alia, the production of documentaries. As EUIPO submits, on the one hand, the word ‘planet’ is not a synonym for the term ‘world’ and, on the other hand, even though it can be accepted that those two words may, to a certain extent, be associated with one another, the element ‘planète’ in the earlier mark remains at most allusive in relation to the services in question.
81 Furthermore, in support of its arguments regarding the weak distinctive character of the words ‘planet’ and ‘planète’ in the signs at issue, the applicant contends that those words are part of everyday language and will not, therefore, attract the consumer’s attention to a high degree.
82 However, on the one hand, it is not because a word is part of everyday language that it must automatically be concluded that it does not constitute a distinctive element of a sign and, on the other hand, it cannot be ruled out that such a word may attract the attention of the relevant public on account of its length and its position at the beginning of that sign.
83 In addition, in support of its claim regarding the weak distinctive character of the words ‘planet’ and ‘planète’ in the signs at issue, the applicant submits that there are many EU trade marks which contain the word ‘planet’.
84 In that regard, it must be pointed out that the relevant factor for the purposes of disputing the distinctive character of an element is its actual presence on the market and not its presence in registers or databases (judgment of 8 March 2013, Mayer Naman v OHIM – Daniel e Mayer (David Mayer), T‑498/10, not published, EU:T:2013:117, paragraph 77). However, the applicant has not shown that the word ‘planet’ is actually present on the market for the services at issue. Accordingly, the applicant’s argument regarding the existence of other marks which contain the word ‘planet’ must be rejected.
85 Consequently, the applicant has not put forward any arguments which are capable of calling into question the Board of Appeal’s finding regarding the average degree of distinctiveness of the word elements ‘planète’ and ‘planet’ in the signs at issue.
86 Secondly, as regards the distinctive character of the article ‘the’ in the mark applied for, the applicant does not dispute the Board of Appeal’s finding that that element is less distinctive than the word ‘planet’ which it specifies. There is no need to call that assessment into question.
87 Thirdly, as regards the applicant’s argument that the symbol ‘+’ in the earlier mark has distinctive character, it must be pointed out that the EU judicature has held that that element, placed after a word element, is a mathematical symbol and will be perceived as an augmentative suffix, with the result that it must be regarded as being weakly distinctive (judgment of 12 December 2014, Groupe Canal + v OHIM – Euronews (News+), T‑591/13, not published, EU:T:2014:1074, paragraph 29). It must, however, be stated that, even though the consumer will not disregard it, that element will not be capable, on its own, of significantly influencing the overall impression created by the earlier mark.
88 Fourthly, as regards the distinctive character of the figurative elements of the signs at issue, it is true, as EUIPO and the intervener submit, that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by citing the name of the mark than by describing the figurative element of that mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37).
89 However, in accordance with the case-law which has been referred to in paragraph 76 above, that principle cannot be applied automatically, without taking into account the specific inherent characteristics of the word and figurative elements constituting a mark.
90 As regards the figurative element of the mark applied for, it must be pointed out that, even though it does not convey any specific concept and will be understood, at least by a non-negligible part of the relevant public, as an abstract drawing, it has a specific and original arrangement as a result of its stylised and unusual representation. Furthermore, it cannot be ruled out, as is submitted by the applicant, that that element might be perceived as a riddle or an object which must be deciphered and which will, on that basis, hold the attention of the relevant public.
91 It follows that the figurative element in the mark applied for is not merely decorative, but is an element which has a very specific presentation that is capable of being remembered by the relevant public.
92 Furthermore, that element does not have any connection with the services in question and cannot be considered to be descriptive of those services, which constitutes an indication in favour of its distinctiveness (see, to that effect, judgment of 15 October 2020, Decathlon v EUIPO – Athlon Custom Sportswear (athlon custom sportswear), T‑349/19, not published, EU:T:2020:488, paragraph 40).
93 It follows from the foregoing considerations that, on account of their inherent characteristics, the figurative element of the mark applied for and the word element ‘planet’ in that mark are both capable of indicating, for the relevant public, the commercial origin of the services in question. The Board of Appeal therefore erred in finding that, in the overall impression created by the mark applied for, the figurative element of that mark was less important than the word element ‘planet’.
94 As regards the figurative element of the earlier mark, it could be perceived by the relevant public as an allusion to a warning sign, as claimed by the applicant, or to a planet, as suggested by the intervener. As is submitted by EUIPO, that element could also be perceived as a grey rectangle placed against a red circle, which does not convey any concept.
95 It follows that the figurative element of the earlier mark does not convey any clear concept which is capable of being grasped directly and immediately by a non-negligible part of the relevant public. Consequently, it has no clear connection with the services at issue and cannot be regarded as being descriptive, which constitutes, in line with the case-law cited in paragraph 76 above, an indication in favour of its distinctive character.
96 Furthermore, contrary to what EUIPO submits, the figurative element of the earlier mark cannot be regarded as functioning merely as a decorative background element for the word element ‘planète’. On the contrary, that figurative element, by virtue of its size and its unusual combination of geometric shapes, but also by virtue of its colours, among which is the particularly striking red colour, is sufficiently unusual to convey to the relevant consumer a message regarding the commercial origin of the services in question (see, by analogy judgment of 4 July 2018, Deluxe Entertainment Services Group v EUIPO (deluxe), T‑222/14 RENV, not published, EU:T:2018:402, paragraph 55).
97 It must therefore be held that, like the word element ‘planète’ in the earlier mark, the figurative element of that mark has distinctive character.
98 Consequently, the Board of Appeal erred in not attributing sufficient importance to the figurative elements of the signs at issue.
99 In the third place, it is necessary to analyse any dominant elements in the signs at issue.
100 It must be borne in mind that, as regards the assessment of whether one or more given components of a composite trade mark is dominant, account must be taken, in particular, of 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 (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).
101 In the present case, the Board of Appeal found that neither of the signs at issue contained elements which could be considered to be more visually dominant than others.
102 The applicant disputes that assessment on the part of the Board of Appeal and submits, in essence, that the figurative elements are the most visually striking elements in the signs at issue.
103 It must be pointed out, first, that all the elements in the signs at issue are clearly visible and, secondly, that none of those signs contains elements which are of an exceptional size in relation to the other elements. Although the figurative element of the mark applied for is larger in size than the word elements, it does not on its own dominate the overall impression created by that mark.
104 Consequently, contrary to what the applicant claims, none of the elements constituting the signs at issue can be considered to be visually dominant.
– The visual similarity
105 The Board of Appeal found that the signs at issue were visually similar to a lower than average degree. It took the view that, notwithstanding the existence of some visual dissimilarities between those signs, those differences were not sufficient to outweigh the similarity arising from the fact that the most distinctive and most prominent word element in the earlier mark, namely the word ‘planète’, was almost entirely reproduced in the mark applied for.
106 The applicant criticises the Board of Appeal for finding that the signs at issue were visually similar. First, it notes the importance of the differences between the figurative elements of those signs, given that those differences relate to the elements which are decisive in those signs. Secondly, it maintains that there are also a number of differences between the representations of the word elements ‘planet’ and ‘planète’ in the signs at issue.
107 EUIPO and the intervener dispute the applicant’s arguments. EUIPO submits that the Board of Appeal did not err in its findings regarding the visual similarity of the signs at issue. The intervener contends that those signs are similar to a high degree.
108 In the present case, as regards the visual similarities between the signs at issue, the Board of Appeal correctly concluded that those signs partially overlap as regards their word elements. In particular, it found that those signs coincide in the sequence of letters ‘p’, ‘l’, ‘a’, ‘n’, ‘e’ and ‘t’, which constitutes one of the word elements in the mark applied for and almost the entire word element in the earlier mark.
109 As regards the visual differences between the signs at issue, it must be observed, first of all, that those signs differ in the presence of the word element ‘the’ which precedes the word ‘planet’ in the mark applied for and in the presence of the symbol ‘+’ which follows the term ‘planète’ in the earlier mark.
110 Next, it must be pointed out, as is submitted by the applicant, that the word elements are presented in a different way in the signs at issue. In particular, they are written using different fonts and colours.
111 Moreover, the signs at issue differ visually in the presence of figurative elements which are significantly different. It must be stated, first, that different shapes have been used for their creation. Secondly, the mark applied for is presented in black and white, whereas the figurative element of the earlier mark appears in red and grey.
112 Lastly, there are also differences in the composition of the signs at issue. In the earlier mark, the word element ‘planète’ followed by the symbol ‘+’ is incorporated inside the figurative element, whereas the word elements in the mark applied for are situated below the figurative element.
113 Consequently, it must be held that, even though almost the entire distinctive word element of the earlier mark is reproduced in the mark applied for, the fact remains that there are numerous visual differences between those marks, including the presence of different figurative elements. As has been stated in paragraphs 88 to 98 above, those figurative elements play an important role in the overall impression created by those marks. Consumers will not therefore focus only on the word elements, but also on the figurative elements, which are significantly different.
114 Consequently, contrary to the Board of Appeal’s findings, it must be held that the visual differences which exist between the signs at issue contribute substantially towards the overall impression created by those signs. On account of those differences, those signs have a different overall image and composition.
115 However, those differences cannot be regarded as sufficient to rule out any visual similarity between the signs at issue which results from the partial coincidence in their word elements.
116 Consequently, the Board of Appeal should have categorised the degree of visual similarity between the signs at issue as being, not lower than average, but low.
– The phonetic similarity
117 The Board of Appeal found that the signs at issue were phonetically similar to an average degree, on the ground that, first, they coincided in the pronunciation of the group of letters ‘planet’, which was present identically within them, and, secondly, their pronunciation differed in the sound of the letters corresponding to the symbol ‘+’.
118 The applicant disputes that assessment on the part of the Board of Appeal. According to the applicant, the signs at issue are phonetically different because the mark applied for contains only two syllables, namely ‘pla’ and ‘net’, whereas the earlier mark contains four syllables, namely ‘rave’, ‘the’, ‘pla’ and ‘net’.
119 EUIPO, supported by the intervener, disputes the applicant’s arguments.
120 In the present case, first, it must be borne in mind that, as has been shown in paragraph 74 above, a non-negligible part of the relevant public will not identify the word ‘rave’ in the figurative element of the mark applied for and therefore the Board of Appeal was right in carrying out the analysis of the phonetic comparison of the signs at issue by not taking into account the pronunciation of that word. Consequently, the applicant’s argument in that regard must be rejected.
121 Secondly, it must be pointed out that, as regards the mark applied for, the word elements in that mark will be pronounced, by the French-speaking public, as three syllables, namely ‘the’, ‘pla’ and ‘net’. As regards the earlier mark, it must be observed, as was stated by the Board of Appeal, that, since the letter ‘e’ in the word ‘planète’ is silent in French, that word will be pronounced by the French-speaking public as two syllables, namely ‘pla’ and ‘net’. Furthermore, the French-speaking part of the relevant public will pronounce the symbol ‘+’ as the French word ‘plus’.
122 Consequently, the signs at issue consist of three syllables, the pronunciation of two of which is identical. For that reason, the Board of Appeal was right in finding that those signs are phonetically similar to an average degree.
– The conceptual similarity
123 The Board of Appeal found that the signs at issue were conceptually similar to an average degree on account of the word element in common which refers to the planet.
124 The applicant disputes that assessment on the part of the Board of Appeal, submitting that the signs at issue are conceptually different.
125 EUIPO, supported by the intervener, disputes the applicant’s arguments.
126 In the present case, it must be stated that the parties do not dispute the fact that the word elements ‘the’ and ‘planet’ in the mark applied for and the word element ‘planète’ in the earlier mark convey the same concept of planet which is expressed in English and in French respectively.
127 In support of its claim regarding the lack of conceptual similarity between the signs at issue, the applicant points out, first, the difference in the linguistic origin of the words ‘the’, ‘planet’ and ‘planète’.
128 In that regard, it must be borne in mind that, according to the case-law, a linguistic difference between signs cannot, in itself, automatically suffice to rule out the existence of a conceptual similarity from the point of view of the relevant consumers. The fact, however, remains that such a difference, in so far as it requires translation on the part of the consumer, is capable, depending on, inter alia, the relevant public’s knowledge of languages, the degree of closeness between the languages concerned and the actual terms used in the signs at issue, of preventing the relevant public, to a greater or lesser extent, from making an immediate conceptual comparison (see judgment of 10 February 2021, Herlyn and Beck v EUIPO – Brillux (B.home), T‑821/19, not published, EU:T:2021:80, paragraph 64 and the case-law cited).
129 However, in the present case, the word elements in the mark applied for, namely the words ‘the’ and ‘planet’, are part of basic English vocabulary and they will therefore be understood without difficulty by the French-speaking part of the relevant public in the European Union. Furthermore, it must be pointed out that the French word ‘planète’, both orally and in writing, is very similar to the English version of that word, namely to the term ‘planet’.
130 In the present case, the linguistic difference is not therefore capable of preventing the relevant public from making an immediate conceptual comparison, within the meaning of the case-law cited in paragraph 128 above. Moreover, contrary to what the applicant claims, the use of different languages in the word elements of the signs at issue cannot in itself indicate the different commercial origins of the services at issue. Consequently, the applicant’s argument relating to the linguistic difference must be rejected.
131 Secondly, the applicant maintains that the signs at issue are conceptually different because the mark applied for concerns movement and dance and is intended to be used throughout the world, whereas the earlier mark, on account of its symbol ‘+’, emphasises that mark’s affiliation to the group of the broadcaster Canal+. Furthermore, according to the applicant, the figurative element in that latter mark shows a warning sign and not a planet.
132 In that regard, first of all, it must be noted that, in the context of the analysis of the likelihood of confusion and thus of the analysis of the various marks at issue, only the intrinsic qualities of the marks are relevant and not the circumstances relating to the conduct of their proprietors or to the earlier use of other marks (see judgment of 13 July 2022, Tigercat International v EUIPO – Caterpillar (Tigercat), T‑251/21, not published, EU:T:2022:437, paragraph 57 and the case-law cited).
133 Next, it must be stated that the applicant’s claim regarding the meaning of the symbol ‘+’ in the earlier mark is not substantiated by any evidence. By contrast, it must be pointed out that the Board of Appeal was right to take into account the fact that that element conveyed the concept of ‘plus’, but that it was not sufficient to discount the conceptual similarities between the signs at issue, which were linked to the word element in those marks that referred to the concept of a planet.
134 Lastly, none of the elements in the mark applied for is capable of conveying the concept of movement or dance. Likewise, it must be borne in mind that, as has been stated in paragraphs 94 and 95 above, the figurative element in the earlier mark also does not convey a clear concept which is capable of being grasped directly and immediately by a non-negligible part of the relevant public.
135 It follows that the applicant cannot validly claim that there are sufficient differences between the signs at issue to discount the conceptual similarity between them. In the light of the foregoing, it must be held that the Board of Appeal did not err in finding that those signs were conceptually similar to an average degree.
The fourth part, alleging an error of assessment regarding the distinctive character of the earlier mark
136 The Board of Appeal found, in paragraph 37 of the contested decision, that ‘the words “planète” and “planet” d[id] not convey any clear meaning in relation to the relevant services’. Likewise, in paragraph 26 of that decision, it found, in the context of the comparison of the signs at issue, that those word elements had a normal degree of distinctiveness. As is submitted by EUIPO, that finding may be applied, a fortiori, to the earlier mark taken as a whole. That permits the inference that the Board of Appeal implicitly but necessarily acknowledged that the earlier mark had an average degree of inherent distinctiveness.
137 Furthermore, the Board of Appeal found, in paragraph 41 of the contested decision, that the proprietor of the earlier mark, intervener before the Court, had demonstrated that that mark also enjoyed an enhanced degree of distinctiveness in France in relation to the services of ‘entertainment; radio and television entertainment on media of all kinds’ in Class 41.
138 The applicant does not dispute the Board of Appeal’s findings as regards the enhanced distinctiveness of the earlier mark with regard to the services referred to in paragraph 137 above and there is no need to call them into question.
139 By contrast, even though it concedes that the earlier mark could, in certain circumstances, be regarded as having, at most, an average degree of inherent distinctiveness, the applicant submits, in essence, that that mark lacks inherent distinctiveness or has a weak distinctive character.
140 EUIPO, supported by the intervener, disputes the applicant’s arguments regarding the inherent distinctiveness of the earlier mark.
141 First, as regards the applicant’s claim regarding the lack of inherent distinctiveness of the earlier mark, it must be borne in mind that, according to the case-law, a validly registered earlier right has, in any event, a minimum degree of inherent distinctiveness merely because it has been registered (see judgment of 15 September 2021, Freshly Cosmetics v EUIPO – Misiego Blázquez (IDENTY BEAUTY), T‑688/20, not published, EU:T:2021:567, paragraph 63 and the case-law cited). Accordingly, in the context of the present action, the applicant cannot validly rely on the lack of inherent distinctiveness of the earlier mark.
142 Secondly, as regards the applicant’s claim that the earlier mark has a weak distinctive character, it must be observed that that claim is based, in essence, on the weak distinctive character of the word element ‘planète’ in that mark. However, for the reasons set out in paragraphs 79 to 85 above, the applicant’s argument regarding the weak distinctive character of that word element has been rejected.
143 Since, taken as a whole, the earlier mark has no meaning for the relevant public in relation to the services at issue, there is no need to call into question the Board of Appeal’s finding that that mark has an average degree of inherent distinctiveness.
144 In the light of the foregoing, the fourth part of the single plea must be rejected.
The fifth part, alleging an error of assessment in the global analysis of the likelihood of confusion
145 According to the 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).
146 In the present case, the Board of Appeal found that there was a likelihood of confusion on the part of the French-speaking part of the relevant public in the European Union, in the light of the average or high level of attention of that public, the identity or similarity of the services at issue, the lower than average degree of visual similarity and average degree of phonetic and conceptual similarity between the signs at issue, and the enhanced distinctiveness of the earlier mark, which had been acquired on account of its reputation in France with regard to the services of ‘entertainment; radio and television entertainment on media of all kinds’ in Class 41.
147 The applicant criticises the Board of Appeal for having found that there was a likelihood of confusion and points out in that regard, in essence, the lack of identity or similarity between the services at issue and the importance of the figurative elements of the signs at issue, which were, in its submission, incorrectly underestimated by the Board of Appeal.
148 EUIPO, supported by the intervener, disputes the applicant’s arguments. It submits, in essence, that the Board of Appeal correctly assessed all the factors which are relevant with regard to the assessment of the likelihood of confusion and was right in finding that there was a likelihood of confusion.
149 It must be pointed out at the outset that the applicant’s arguments regarding the lack of identity or similarity between the services at issue have been rejected (see paragraphs 44 to 64 above). Likewise, contrary to the applicant’s claims, the Board of Appeal did not err in the definition of the relevant public and its level of attention (see paragraphs 34 to 43 above) or in the assessment of the phonetic (see paragraphs 117 to 122 above) and conceptual (see paragraphs 123 to 135 above) similarity between the signs at issue or the distinctive character of the earlier mark (see paragraphs 136 to 144 above).
150 By contrast, as has been stated in paragraph 98 above, the applicant is right in claiming that the Board of Appeal did not, in the context of the comparison of the signs at issue, attribute sufficient importance to the figurative elements of those signs. In the light of that importance of the figurative elements and the visual differences which they create between those signs, the Board of Appeal should have concluded that there was a low degree of visual similarity between them (see paragraphs 105 to 116 above).
151 As regards the Board of Appeal’s global assessment of the likelihood of confusion, it must be observed that, in paragraph 43 of the contested decision, after stating that the services at issue were identical or similar, the Board of Appeal referred to, inter alia, the judgment of 29 January 2013, Fon Wireless v OHIM – nfon (nfon) (T‑283/11, not published, EU:T:2013:41), according to which ‘that finding implies, according to the case-law …, that, if there is to be no likelihood of confusion, the degree of difference between the marks at issue must be high’ which was not, in its view, the situation in the present case. In order to conclude that a likelihood of confusion could not be avoided in those circumstances, it confined itself to noting that there was no high degree of difference between the signs at issue.
152 However, when an appeal was brought against the judgment of 29 January 2013, nfon (T‑283/11, not published, EU:T:2013:41), the Court of Justice, by order of 16 January 2014, nfon v Fon Wireless and OHIM (C‑193/13 P, not published, EU:C:2014:35, paragraph 41), held that there was nothing to indicate that, in making the assertion referred to in paragraph 151 above, the General Court had laid down a general principle of interdependence enabling it, in the absence of a high degree of difference between trade marks, to conclude automatically, and without there being any need to carry out a global assessment taking into account all the relevant factors, that there was a likelihood of confusion.
153 Accordingly, contrary to what is apparent from the Board of Appeal’s findings, it cannot be held that, by reference to the case-law resulting from the judgment of 29 January 2013, nfon (T‑283/11, not published, EU:T:2013:41), the lack of a high degree of difference between the signs at issue is sufficient to conclude that there is a likelihood of confusion in the circumstances of the present case.
154 It must be borne in mind, in that regard, that, according to the case-law, although it is true that, by virtue of the principle of interdependence, a low degree of similarity between the goods or services covered may be offset by a high degree of similarity between the signs, conversely, there is nothing to prevent a finding that, in the light of the circumstances of a particular case, there is no likelihood of confusion between the marks at issue, even where identical goods are involved and there is a low degree of similarity between those signs (see judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraph 96 and the case-law cited).
155 Accordingly, in the context of the assessment as to whether there is a likelihood of confusion, all the factors relevant to the circumstances of the case must be weighed against each other since they are interdependent (see judgment of 10 March 2021, Hauz 1929 v EUIPO – Houzz (HAUZ EST 1929), T‑68/20, not published, EU:T:2021:127, paragraph 62 and the case-law cited).
156 Since, in the present case, the degrees of similarity between the signs at issue are different as regards, on the one hand, the visual aspect and, on the other hand, the phonetic and conceptual aspects of the comparison, it is necessary to determine whether one aspect is more important for the relevant public when purchasing the services at issue. In that regard, it must be borne in mind that, according to the case-law, the visual, phonetic or conceptual aspects of those signs do not always have the same weight in the assessment of the likelihood of confusion. It is appropriate to examine the objective conditions under which the marks at issue may be present on the market. The importance of elements of similarity or dissimilarity between the signs may depend, in particular, on the inherent characteristics of those signs or the conditions under which the goods or services covered by those marks are marketed (see judgment of 24 October 2018, Grupo Orenes v EUIPO – Akamon Entertainment Millenium (Bingo VIVA ! Slots), T‑63/17, not published, EU:T:2018:716, paragraph 71 and the case-law cited).
157 In the present case, it must be held that, since the services at issue come, in principle, within the fields of publishing and entertainment, the choice of those services is above all made visually. First, as the applicant submits, in the context of digitisation and the frequent use of smartphones, computers or laptops, those services are often marketed via a screen. Secondly, in the fields concerning the services in question, it is usual for the marks at issue also to be perceived by consumers via other visual means, such as, for example, brochures, advertising posters or, in the case of the organisation of events, invitations or books of tickets. Consequently, the visual perception of the marks at issue plays a particularly important role in the present case.
158 In the light of that importance of the visual aspect with regard to the perception of the marks at issue, it is not therefore possible that the visual differences between the signs at issue, and in particular the presence of their significant figurative elements, will escape the notice of the relevant public, the level of attention of which may vary from average to high, and that is so even taking into account the fact that the average consumer only rarely has a chance to compare the various marks directly, so he or she must rely on his or her imperfect recollection of them (see judgment of 22 November 2018, Endoceutics v EUIPO – Merck (FEMIVIA), T‑59/18, not published, EU:T:2018:821, paragraph 65 and the case-law cited).
159 It follows that the consumer will immediately perceive the visual differences between the signs at issue and will remember them. As has been stated in paragraph 114 above, those differences significantly influence the overall impression created by those signs, with the result that they create a different overall image and composition for those signs.
160 Consequently, although the services covered by the marks at issue are identical or similar, the merely low degree of visual similarity and the importance of the visual differences between the signs at issue provide sufficient grounds for ruling out the existence of a likelihood of confusion on the part of the relevant public, and that is so even in relation to the services with regard to which the earlier mark has enhanced distinctiveness.
161 It follows that the Board of Appeal erred in finding that there was a likelihood of confusion.
162 The fifth part of the single plea and the single plea in its entirety must therefore be upheld. Consequently, the contested decision must be annulled.
Costs
163 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
164 In the present case, the applicant has applied for EUIPO to be ordered to pay the costs of the present proceedings. Since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant in the proceedings before the Court.
165 Pursuant to Article 138(3) of the Rules of Procedure, the intervener must bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 November 2021 (Case R 2385/2020-2);
2. Orders EUIPO to bear its own costs and to pay those incurred by DDR Kultur UG (haftungsbeschränkt) in the proceedings before the Court;
3. Orders Groupe Canal+ to bear its own costs.
Schalin | Škvařilová-Pelzl | Kukovec |
Delivered in open court in Luxembourg on 7 June 2023.
V. Di Bucci | | M. van der Woude |