JUDGMENT OF THE GENERAL COURT (First Chamber)
26 July 2023 (*)
(EU trade mark – Opposition proceedings – Application for the EU word mark VEGE STORY – Earlier EU word mark végé’ – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑434/22,
Topas GmbH, established in Mössingen (Germany), represented by S. Hofmann and W. Göpfert, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Tarczyński S.A., established in Trzebnica (Poland), represented by E. Gryc‑Zerych, lawyer,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann (Rapporteur), President, V. Valančius and M. Brkan, 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, Topas GmbH, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 10 May 2022 (Case R 1977/2021-5) (‘the contested decision’).
Background to the dispute
2 On 23 March 2020, the intervener, Tarczyński S.A., filed an application for registration of an EU trade mark with EUIPO in respect of the word sign VEGE STORY.
3 The mark applied for covered goods in Classes 29 and 30 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponding, for each of those classes, to the following description:
– Class 29: ‘Vegetarian cabanos; vegetarian charcuterie; meat substitutes; formed textured vegetable protein for use as a meat substitute; vegetarian sausages; vegetable pate; prepared meals consisting primarily of meat substitutes; poultry substitutes; nut-based snack foods; soy-based snack foods; tofu-based snacks; vegetable-based snack foods; vegetable-based entrees; mousses (vegetable -); vegetable salads; hummus [chickpea paste]; tofu; soy burger patties; vegetable burgers; prepared vegetable products; soy burger patties; tofu burger patties; frozen prepared meals consisting principally of vegetables; vegetable-based meat substitutes; frozen vegetables; canned sliced vegetables; soup concentrates; stock cubes; mixes for making soup; soup pastes; stock; vegetable stock; soups; fatty substances for the manufacture of edible fats; edible fats; blended oil [for food]; oils for food; milk-based snacks; cheese-based snack foods; legume salads; processed pulses; preserved pulses; dried pulses; canned pulses; legume-based spreads; vegetable oils for food; vegetable fats for food; salted vegetables; cut vegetables; processed fruits, mushrooms and vegetables, including nuts and pulses; processed vegetables; vegetable pastes; prepared vegetable dishes; prepared meals consisting principally of vegetables’;
– Class 30: ‘Filled baguettes; filled bread rolls; sandwiches; chips [cereal products], wraps [sandwich]; pâtés en croûte; vegetable pies; pancakes; crackers flavoured with vegetables; puddings; ravioli; pizza; calzones; lasagne; pasta containing stuffings; pasta containing stuffings; filled yeast dough with fillings consisting of vegetables; frozen pastry stuffed with vegetables; soft pretzels; dry and liquid ready-to-serve meals, mainly consisting of rice; muesli; gluten additives for culinary purposes; marinades; sauces; pesto [sauce]; preparations for making up into sauces; cereal-based snack food; savory pastries; non-meat pies; vegetable thickeners; vegetable pulps [sauces – food]; bakery products containing vegetables’.
4 On 28 May 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5 The opposition was based on the earlier EU word mark végé’, registered on 31 August 2020, covering goods in Classes 29 and 30 corresponding, for each of those classes, to the following description:
– Class 29: ‘Vegetarian and vegan alternatives to meat, meat goods, sausages, charcuterie and ready meals consisting predominantly of meat or sausage; meat alternatives, namely vegetarian or vegan products resembling meat, in particular sausages and charcuterie, products resembling sausages and meat, and rissoles; plant-based meat, fish, game and poultry substitutes, and goods made therefrom in fresh, frozen, smoked and semi-prepared form; plant-based alternatives to milk and milk products, processed fruits and vegetables (including nuts, pulses), in particular meat substitutes based on plant proteins; lupins and lupin protein; seitan (meat substitute); soya and wheat protein (gluten) preparations being meat alternatives; dairy products and substitutes therefor, in particular cheese alternatives and cheese substitutes not consisting of dairy products, vegan cheese, vegan cheese preparations and vegan cheese additives; ready meals and semi-prepared meals consisting predominantly of meat substitutes’;
– Class 30: ‘Food preparations based on plant proteins, in particular based on cereals, and based on pulses or nuts; processed cereals and starches for foodstuffs, and goods made therefrom; plant proteins processed into foodstuffs, in particular based on cereals and based on pulses or nuts; seitan and seitan products; plant-based ready meals and savoury snacks, in particular made from plant proteins, snack food products made from cereal flour’.
6 The grounds relied on in support of the opposition were those set out in Article 8(1)(a) and (b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7 On 29 September 2021, the Opposition Division upheld the opposition in part, in so far as it found that there was a likelihood of confusion in respect of part of the goods at issue.
8 On 26 November 2021, the intervener filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9 By the contested decision, the Board of Appeal annulled the decision of the Opposition Division and rejected the opposition in its entirety. First, it found the majority of the goods at issue to be identical to the goods covered and some of the goods to be similar to an average or low degree. Secondly, as regards the relevant public, the Board of Appeal found that it consisted of professionals and the general public of the European Union, who were reasonably well informed and reasonably observant and circumspect. Thirdly, it found that the marks at issue had a low degree of visual, phonetic and conceptual similarity. Fourthly, it found that the earlier mark had very weak distinctive character for foods, in particular in relation to vegetarian food. The Board of Appeal concluded that, taking into account, inter alia, the differences due to the word ‘story’, there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. It therefore annulled the decision appealed before it, thus rejecting the opposition in its entirety.
Forms of order sought
10 The applicant claims that the Court should:
– annul the contested decision;
– order the intervener to pay the costs of the appeal and opposition proceedings.
11 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in case an oral hearing is convened.
12 The intervener contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs, including the costs necessarily incurred by the intervener for the purposes of the proceedings before the Board of Appeal.
Law
Admissibility of documents submitted for the first time in the present proceedings
13 EUIPO contends that Annexes K11 and K12 attached to the application were not submitted during the proceedings before EUIPO. It maintains that those documents, submitted for the first time before the Court, are therefore inadmissible.
14 In the present case, it is apparent from the file that the documents submitted in Annexes K11 and K12 to the application, which are Wikipedia extracts referring to the word ‘story’ in different languages, were not part of the administrative file put forward by the applicant before the Board of Appeal of EUIPO.
15 The purpose of actions brought before the General Court under Article 72(2) of Regulation 2017/1001 is to obtain a review of the legality of decisions of the Boards of Appeal. Pursuant to Article 95 of Regulation 2017/1001, 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 1 February 2005, SPAG v OHIM – Dann and Backer (HOOLIGAN), T‑57/03, EU:T:2005:29, paragraph 17 and the case-law cited).
16 Therefore, it is not the Court’s function to review the facts in the light of documents adduced for the first time before it. To allow the examination of such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ submissions may not change the subject matter of the proceedings before the Board of Appeal. Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see judgment of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).
17 Consequently, the documents produced in Annexes K11 and K12 to the application must be rejected as inadmissible.
Substance
18 In support of the action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. In particular, it submits that the terms ‘végé’ and ‘vege’ have average, not weak, distinctive character, that the word ‘story’ has very weak distinctive character and is secondary in the contested mark. According to the applicant, in view of the similarities between the goods and marks at issue, there is a likelihood of confusion on the part of the relevant public.
19 EUIPO and the intervener dispute the applicant’s arguments.
20 Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
21 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. 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).
22 Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
23 In the present case, the applicant does not dispute the Board of Appeal’s findings that, first, the relevant public consists of professionals and the general public of the European Union, whose level of attention is average and, secondly, the goods at issue are identical or similar, at least to a low degree.
24 By contrast, the applicant disputes the Board of Appeal’s findings relating, first, to the visual, phonetic and conceptual comparison of the signs at issue and, secondly, to the global assessment of the likelihood of confusion.
The comparison of the signs
25 The global assessment of the likelihood of confusion must, in so far as concerns the visual, phonetic or conceptual similarity of the marks at issue, be based on the overall impression given by those marks, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
– The degree of distinctiveness of the elements of the marks at issue
26 First, the Board of Appeal found that the terms ‘végé’’ and ‘vege’ had only very limited inherent distinctiveness for the goods at issue, in particular in relation to vegetarian food. It is apparent from the contested decision that it is well known that producers of vegetarian food use abbreviations of those words and that consumers have become used to abbreviations like ‘V’, ‘Veg.’ or ‘Veggie’, and the apostrophe in the earlier mark strengthens that perception of abbreviation. Those terms will therefore be perceived as an abbreviation of ‘vegetarian’ in most European languages. Secondly, the Board of Appeal found that the word ‘story’ used in the contested mark had an average degree of inherent distinctiveness for food products and that it was therefore the most distinctive element of the contested mark.
27 First, the applicant disputes the Board of Appeal’s assessment of the allegedly limited distinctiveness of the term ‘végé’ followed by an apostrophe and of the term ‘vege’. According to the applicant, it is doubtful that those terms will be understood as an abbreviation of the term ‘vegetarian’ in the various languages of the European Union. On the contrary, they are fanciful terms, in particular for German-speaking consumers, and do not appear in dictionaries. Their distinctive character is therefore average, not weak.
28 Secondly, it submits that the word ‘story’ is part of basic English vocabulary, known to the public of the European Union, and must therefore be regarded as an element with weak distinctive character.
29 EUIPO and the intervener dispute those arguments.
30 According to the case-law, for the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services 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 the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgment of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (Happy Moreno choco), T‑498/18, EU:T:2019:763, paragraph 77).
31 First, the Board of Appeal was correct in finding that the element ‘végé’ in the earlier mark and the element ‘vege’ in the contested mark would be perceived by the relevant public as an abbreviation of the term ‘vegetarian’.
32 As EUIPO states, and as is apparent from the numerous examples of product packaging submitted by the intervener in the administrative proceedings which use the terms ‘veg’, ‘veggie’ and ‘vege’, those abbreviations are used in connection with vegetarian food and are indicative of well-known commercial practices in that field, referred to in the contested decision. The apostrophe added after the term ‘végé’ in the earlier mark confirms that it is an abbreviation. Furthermore, as the Board of Appeal stated, terms equivalent to the word ‘vegetarian’ and having the same meaning exist in many languages of the European Union. Lastly, the presence of acute accents in the earlier mark does not make it, as the applicant submits, an entirely fanciful term and will not prevent the relevant public from perceiving the meaning of those four letters or associating them with the vegetarian nature of the goods at issue.
33 Therefore, the Board of Appeal’s finding that the elements ‘végé’ and ‘vege’ of the marks at issue have weak distinctive character in respect of the goods at issue must be upheld.
34 The applicant’s other arguments do not invalidate that finding.
35 The applicant maintains that the term ‘végé’ does not appear in dictionaries and that it must be inferred therefrom that it has average, not weak, distinctive character. However, it is sufficient to state that the fact that the word element of the earlier mark does not appear in dictionaries does not, in itself, allow any conclusion to be drawn as regards the degree of distinctive character with regard to the goods at issue in the present case.
36 The applicant’s argument based on other EUIPO decisions of 2003, from which it is apparent that the marks VÉGÉ and VéGé have average distinctive character, must also be rejected. As noted by EUIPO and the intervener, the markets for the goods at issue have seen a great expansion and proliferation of vegetarian alternatives, which is moreover apparent from more recent EUIPO decisions (see, to that effect, decision of 12 September 2017, R 2364/2016-4, VEGEA/Vegeta, paragraphs 25 and 26).
37 Likewise, the argument that the elements ‘végé’ and ‘vege’ are not common abbreviations of ‘vegetarisch’ for German-speaking consumers, even assuming it is correct, does not invalidate the Board of Appeal’s finding concerning the weak distinctive character of those elements of the marks at issue for the relevant public, irrespective of whether they are abbreviations as such.
38 It follows that the Board of Appeal was correct in finding that the elements ‘végé’ and ‘vege’ of the marks at issue have weak distinctive character for the goods at issue.
39 Secondly, the applicant submits that the element ‘story’ is part of basic English vocabulary and will be understood by a significant part of the relevant public. It therefore, according to the applicant, has very weak distinctive character, not average distinctive character, as the Board of Appeal found.
40 In that regard, it should be borne in mind that knowledge of a foreign language cannot, in general, be assumed (judgments of 13 September 2010, Inditex v OHIM – Marín Díaz de Cerio (OFTEN), T‑292/08, EU:T:2010:399, paragraph 83, and of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø), T‑399/20, EU:T:2021:442, paragraph 39). Therefore, despite the common use of the word ‘story’ in social networks and in the literary field and other fields, it cannot be ruled out that a non-English-speaking part of the relevant public will not understand that word. Furthermore, with regard to the part of the relevant public which will understand that word as meaning ‘account, narrative’ in English, it must be stated, as observed by EUIPO, that the food products at issue do not function as a medium to reproduce a message or convey a story. Accordingly, the Board of Appeal was correct in finding, with regard to the goods at issue, that the element ‘story’ in the contested mark has an average degree of distinctiveness, which is therefore the most distinctive element of that mark.
41 The applicant’s argument that the element ‘story’ is purely descriptive, referring to EUIPO decisions of 2008 and 2012, must be rejected, since, as EUIPO and the intervener observed, those decisions concerned other goods, namely media carriers or audio books.
42 Therefore, the Board of Appeal was correct in finding that the element ‘story’ had an average degree of distinctiveness and that it was the most distinctive element of the contested mark, notwithstanding the fact that it does not appear at the beginning of that mark.
– The visual, phonetic and conceptual comparison of the marks at issue
43 The Board of Appeal found that the marks at issue had a low degree of visual, phonetic and conceptual similarity, on account, in particular, of the presence of the element ‘story’ in the contested mark and of the fact that their overall similarity was therefore low.
44 The applicant submits that the marks at issue are visually and phonetically similar to an average degree. It further states that the elements ‘végé’ and ‘vege’ produce a very similar visual impression and an identical phonetic impression. It claims that the marks at issue are also conceptually similar, since they differ only in the element ‘story’, which will be perceived as a mere supplement to the element ‘vege’.
45 EUIPO and the intervener dispute those arguments.
46 The Court notes that, as the Board of Appeal emphasised, the marks at issue coincide as regards the sequence of letters ‘vege’, although that term contains two accents and an apostrophe in the earlier mark. However, the marks at issue differ in the presence, in the contested mark, of the word ‘story’. It follows that, from a visual perspective, the two marks have neither the same structure nor the same length. Therefore, the Board of Appeal made no error of assessment in finding that the marks had only a low degree of visual similarity, in spite of the fact that the element ‘vege’ is positioned at the beginning of the contested mark, since the word ‘story’ is the most distinctive element of that mark.
47 Likewise, from a phonetic perspective, although the elements ‘vege’ and ‘végé’ are pronounced in a broadly similar way in all the relevant languages, the word ‘story’ has no equivalent in the earlier mark, which produces a different length and rhythm and justifies finding, as the Board of Appeal found, that the marks at issue are phonetically similar only to a low degree.
48 From a conceptual perspective, although the marks at issue both have the element ‘vege’ in common, which will be associated with vegetarian food, they are conceptually similar only to a low degree on account of the weak distinctive character of the elements ‘végé’ and ‘vege’ and the presence of the distinctive element ‘story’ in the contested mark. On the one hand, for the part of the relevant public that will not understand that term, it will appear to be an invented word devoid of any meaning and will therefore be distinctive. On the other hand, for the English-speaking part of the public that will understand that term, it will be a qualifier for the term ‘vege’ (vegetarian story), which gives a specific meaning to the contested mark, thus differing from the meaning of the earlier mark végé’.
49 It follows that the Board of Appeal, taking into account in particular the weak distinctive character of the almost identical elements ‘végé’ and ‘vege’, made no error of assessment in finding that the marks at issue were conceptually similar only to a low degree.
50 In the light of all of the foregoing, it must be concluded, as the Board of Appeal did, that the marks at issue have low overall similarity.
The global assessment of the likelihood of confusion
51 A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
52 The degree of distinctiveness of the earlier mark, which determines the extent of the protection conferred by it, is one of the relevant factors in the case in point. Where the distinctiveness of the earlier mark is significant, such a circumstance is likely to increase the likelihood of confusion. That being so, the existence of a likelihood of confusion is not precluded where the distinctiveness of the earlier mark is weak (judgments of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 70, and of 1 February 2023, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO – Papouis Dairies (Papouis Halloumi), T‑565/21, not published, EU:T:2023:28, paragraph 60).
53 Furthermore, marks with a highly distinctive character, either per se or because of their recognition on the market, enjoy broader protection than marks with less distinctive character (judgment of 17 April 2008, Ferrero Deutschland v OHIM, C‑108/07 P, not published, EU:C:2008:234, paragraph 32; see also judgment of 12 May 2021, Metamorfoza v EUIPO – Tiesios kreivės (MUSEUM OF ILLUSIONS), T‑70/20, not published, EU:T:2021:253, paragraph 92 and the case-law cited).
54 In the present case, the Board of Appeal found, in essence, that, in the light of all the relevant factors, there was no likelihood of confusion, even for the identical goods, on account, in particular, of the presence of the distinctive element ‘story’ in the contested mark.
55 The applicant submits that, since the goods are identical or similar, the contested mark should differ considerably from the earlier mark. In addition, the finding that the earlier mark has less distinctive character does not exclude a likelihood of confusion, in particular, on account of a high degree of similarity between the signs and the goods concerned. It concludes therefrom that the overall impression produced is similar and that, even if the common element must be regarded as having weak distinctive character, the additional, weakly distinctive element ‘story’ is not sufficient to produce such a difference as to exclude a likelihood of confusion.
56 EUIPO and the intervener dispute those arguments.
57 It should be noted, as previously established (see paragraphs 38 and 42 above), that the distinctive character of the terms ‘végé’ and ‘vege’, present in the marks at issue, is weak. Contrary to what the applicant claims, the word ‘story’ has an average degree of distinctiveness and constitutes the most distinctive element of the contested mark. In addition, the marks at issue have low overall similarity (see paragraph 50 above), resulting from the elements ‘végé’ and ‘vege’, which are themselves weakly distinctive and which will therefore only weakly attract the attention of the relevant public.
58 As regards the distinctive character of the earlier mark, the applicant submits that it cannot be classified as very weak, in particular with regard to the German-speaking part of the relevant public, on the ground that ‘végé’ is not a common and usual abbreviation of the German words ‘Gemüse; vegetarisch’.
59 In the present case, it must be stated that the applicant does not dispute the weak distinctive character of the earlier mark but only the degree of weakness. Furthermore, its argument that the earlier mark is not a common and usual abbreviation of the German words ‘Gemüse; vegetarisch’ (vegetable; vegetarian) must be rejected. The Board of Appeal’s reasoning is based on the fact that the relevant public, including the German-speaking public, will perceive the term ‘végé’ as an allusion to the vegetarian nature of the goods at issue, thereby informing them that those goods contain neither meat nor fish. The presence of an apostrophe following the term ‘végé’ does not alter that finding.
60 The Board of Appeal’s assessment that the earlier mark has very weak distinctive character in view of the goods concerned must therefore be upheld.
61 Lastly, even though, as the applicant states, that finding does not in itself exclude a likelihood of confusion, the fact remains that, in accordance with the case-law referred to in paragraph 53 above, the protection enjoyed by the earlier mark is, accordingly, less broad.
62 Therefore, in spite of the fact that the goods at issue are identical or similar, at least to a low degree (paragraph 23 above), the Board of Appeal made no error of assessment in finding that the differences due to the word ‘story’ outweighed the similarities caused by the weakly distinctive element ‘végé’ and the element ‘vege’ and that, in the light of all the factors and following a global assessment, there was no likelihood of confusion.
63 It follows from all of the foregoing that the single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected and, consequently, the action must be dismissed.
Costs
64 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.
65 In this case, since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has requested that the applicant be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of such a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders Topas GmbH to bear its own costs and to pay those incurred by Tarczyński S.A.;
3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Delivered in open court in Luxembourg on 26 July 2023.