JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
13 May 2015 (*)
(Community trade mark — Opposition proceedings — Application for Community word mark Koragel — Earlier Community word mark CHORAGON — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑169/14,
Ferring BV, established in Hoofddorp (Netherlands), represented by A. Thünken, lawyer,
applicant,
v
Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by D. Walicka, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of OHIM being
Kora Corp. Ltd, established in Swords (Ireland),
ACTION brought against the decision of the Fourth Board of Appeal of OHIM of 13 January 2014 (Case No R 721/2013-4) concerning opposition proceedings between Ferring BV and Kora Corp. Ltd,
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias (Rapporteur), President, M. Kancheva and C. Wetter, Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 17 March 2014,
having regard to the response lodged at the Court Registry on 20 June 2014,
further to the hearing on 10 February 2015,
gives the following
Judgment
Background to the dispute
1 On 13 December 2011, Kora Corp. Ltd filed an application for registration of a Community trade mark at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).
2 The mark in respect of which registration was sought is the word sign Koragel.
3 The goods in respect of which registration was sought fall within Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Pharmaceutical and veterinary preparations; Sanitary preparations for medical purposes; Dietetic substances adapted for medical use, food for babies; Plasters, materials for dressings; Material for stopping teeth, dental wax; Disinfectants; Preparations for destroying vermin; Fungicides, herbicides’.
4 The application for a Community trade mark was published in Community Trade Marks Bulletin No 2/2012 of 2 January 2012.
5 On 2 April 2012, the applicant, Ferring BV, filed a notice of opposition, pursuant to Article 41 of Regulation No 207/2009, against registration of the trade mark applied for, in respect of all of the goods referred to in paragraph 3 above. The opposition was based on the earlier Community word mark CHORAGON, registered on 16 August 2010 under No 8695314 for the following goods in Class 5: ‘Pharmaceutical products and substances’.
6 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009.
7 By decision of 18 February 2013, the Opposition Division rejected the opposition by the applicant in its entirety, on the ground that there was no likelihood of confusion between the mark applied for and the earlier mark.
8 On 18 April 2013, the applicant appealed to OHIM, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division, seeking the annulment of that decision and rejection of the contested application for registration.
9 By decision of 13 January 2014 (‘the contested decision’), the Fourth Board of Appeal of OHIM dismissed the appeal. The Board of Appeal held that any likelihood of confusion had to be dismissed.
10 In support of that conclusion, first, the Board of Appeal observed that the relevant public was made up of both the general public and professionals in the medical and pharmaceutical field.
11 Secondly, the Board of Appeal held that the goods designated by the mark applied for were identical to the pharmaceutical products and substances protected by the earlier mark as regards the pharmaceutical preparations and similar to them as regards the veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, plasters, materials for dressings, disinfectants and also material for stopping teeth and dental wax. In contrast, it ruled out any similarity with the goods designated by the earlier mark as regards preparations for destroying vermin, fungicides and herbicides, on the one hand, and food for babies, on the other hand.
12 Thirdly, as regards the similarity of the signs which constitute the marks at issue, the Board of Appeal observed, first of all, that the marks at issue were both word marks. From the visual point of view, it observed that, in view of the differences distinguishing the beginnings of those signs, to which the consumer usually pays more attention, and the differences distinguishing their final syllables, the degree of similarity was low. From the aural point of view, it held that, for the German- and Italian-speaking sections of the relevant public, the similarity of the signs was above average, given that they were identical in terms of syllabic structure, prosody, and pronunciation of the first two syllables and the initial consonant of the last syllable. According to the Board of Appeal, for the remainder of the public, however, who pronounced the initial parts of the signs at issue differently, the degree of similarity was less. In the absence of any discernible meaning attaching to the two signs at issue, the Board of Appeal ruled out any conceptual similarity.
13 Fourthly and lastly, as regards the overall assessment of the likelihood of confusion, the Board of Appeal first of all held that the earlier mark possessed a normal inherent degree of distinctiveness and that the applicant had not claimed any enhanced distinctiveness. Next, the Board held that the low level of visual similarity between the signs was not sufficient to provide grounds for a likelihood of confusion, even for those consumers who pronounced identically the initial part of the signs constituting the marks at issue. As pharmaceutical products were involved in the case at issue, it was appropriate to assume that the relevant public would display, with regard to them, an increased attentiveness, including final consumers, bearing in mind that these were products which could affect their health. As regards the dissimilar goods covered by the mark applied for, the Board of Appeal ruled out, from the outset, any likelihood of confusion, as one of the conditions laid down in Article 8(1)(b) of Regulation No 207/2009 was not met.
Procedure and forms of order sought
14 The applicant claims that the Court should:
– annul the contested decision;
– uphold the opposition and reject the application for registration of the Community trade mark Koragel;
– order OHIM and, as the case may be, Kora Corp. to pay the costs of the proceedings and the costs of the proceedings before OHIM.
15 OHIM claims that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
16 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. It contends that the Board of Appeal was wrong to dismiss the existence of a likelihood of confusion, at least in the minds of consumers in regions of the European Union where German is commonly spoken.
17 In this single plea, the applicant essentially makes four complaints against the contested decision. First, the applicant alleges that, in that decision, the Board of Appeal wrongly assessed the level of attention of the relevant public. Secondly, the applicant contends that the Board of Appeal underestimated the degree of similarity of the goods designated by the marks at issue as regards preparations for destroying vermin, fungicides and herbicides, on the one hand, and food for babies, on the other hand. Thirdly, the applicant claims that the Board of Appeal underestimated the visual similarity between the signs at issue. Fourthly, the applicant contends that, even if the Board of Appeal correctly assessed the above factors, it in any event based its global assessment of the likelihood of confusion on an incorrect weighting of those factors.
18 OHIM considers that those complaints are unfounded and must be rejected.
19 According to Article 8(1)(b) of Regulation No 207/2009, 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.
20 It is settled case-law that the risk that the public might believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and the goods or services concerned and account being taken of 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 designated (judgment of 11 June 2014 in Golam v OHIM — meta Fackler Arzneimittel (METABIOMAX), T‑281/13, EU:T:2014:440, paragraph 28 and the case-law cited).
21 For the purposes of that global assessment, the average consumer of the category of goods or services concerned is deemed to be reasonably well informed and reasonably observant and circumspect. Account should be taken, however, of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must instead rely on his imperfect recollection of them. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (judgment of 23 April 2013 in Apollo Tyres v OHIM — Endurance Technologies (ENDURACE), T‑109/11, EU:T:2013:211, paragraph 28 and the case-law cited).
22 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (judgment of 16 October 2013 in Mundipharma v OHIM — AFT Pharmaceuticals (Maxigesic), T‑328/12, EU:T:2013:537, paragraph 19 and the case-law cited).
23 The existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 must be examined in the present case in the light of those considerations.
The relevant public and its level of attention
Determination of the relevant public
24 First, the Board of Appeal held that the relevant public was made up of both the general public and professionals in the medical and pharmaceutical field; moreover, the applicant does not contest this.
25 That said, it follows from the case-law that the relevant public are the consumers liable to use both the goods and services covered by the earlier mark and those covered by the mark applied for (judgment of 8 May 2014 in Pyrox v OHIM — Köb Holzheizsysteme (PYROX), T‑575/12, EU:T:2014:242, paragraph 32 and the case-law cited). In addition to users of pharmaceutical products, it is therefore appropriate, in the present case, to also take into account consumers liable to use the products covered by the mark applied for other than pharmaceutical products.
26 In that regard, it should be observed that the distinction between one part of the relevant public, made up of final consumers, and the other part of the relevant public, made up of professional users, made by the Board of Appeal as regards pharmaceutical preparations also applies as regards veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, plasters and materials for dressings, disinfectants, preparations for destroying vermin, fungicides and herbicides. However, this is not the case with regard to material for stopping teeth and for dental wax which, as the Board of Appeal stated, are intended solely for a specialised health care professional. Nor is this the case with regard to food for babies which is, in principle, an everyday consumer product aimed solely at final consumers.
27 Secondly, since the protection enjoyed by the earlier mark extends to the whole of the territory of the European Union, the Board of Appeal was right to take into account the perception of the marks at issue by the consumer of the goods or services at issue in that territory.
28 It is true that, as the applicant notes, according to settled case-law, for a Community trade mark not to be registered, it suffices that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 207/2009 exists only in part of the territory considered (judgment of 6 June 2013 in McNeil v OHIM — Alkalon (NICORONO), T‑580/11, EU:T:2013:301, paragraph 20 and the case-law cited).
29 That is why, in the present case, the merits of the applicant’s single plea should be examined particularly with regard to German-speaking consumers, since the applicant claims that there is a likelihood of confusion ‘at least’ in the minds of those consumers and concentrates its arguments on that part of the relevant public.
The level of attention of the relevant public
30 The applicant submits that the level of attention of the relevant public must be considered to be average, including with regard to pharmaceutical products. In this respect, the applicant takes the view that the Board of Appeal failed to observe the principle that the assessment of the likelihood of confusion must be based on the perception of the part of the public displaying the lowest degree of attentiveness. According to the applicant, in the present case, the pharmaceutical products and substances designated by the earlier mark cover a large spectrum of goods for which it would be contrary to the case-law to hold generally that the level of attention of the final consumers with regard to them is heightened. In addition, the applicant argues that it is also necessary in the present case to take into account consumers of goods bearing the contested mark other than pharmaceutical products. According to the applicant, as the goods in question are most often everyday consumer goods, which can be bought without prescription and which constitute a significant part of the goods covered by the contested mark, the level of attention of the relevant public cannot in any case be considered to be above average.
31 In that regard, so far as concerns, first of all, the level of attention of the public vis-à-vis pharmaceutical products, it is settled case-law that, in cases where pharmaceutical products are sold without prescription, it must be assumed that those goods will be of concern to consumers, who are deemed to be reasonably well informed and reasonably observant and circumspect where those goods affect their state of health, and that these consumers are less likely to confuse different versions of such goods. Furthermore, even assuming that a medical prescription is mandatory, consumers are likely to have a high degree of attentiveness upon prescription of the goods at issue, in the light of the fact that those goods are pharmaceutical products. Thus medicines, whether or not issued on prescription, can be regarded as receiving a high degree of attentiveness by consumers who are reasonably well informed and reasonably observant and circumspect (judgment of 10 December 2014 in Novartis v OHIM — Dr Organic (BIOCERT), T‑605/11, EU:T:2014:1050, paragraph 20 and the case-law cited). As OHIM observes, it follows from that case-law that those considerations are also applicable if the pharmaceutical products in question are intended to treat minor complaints and ailments such as painkillers issued without a prescription (see, to that effect, judgments of 15 December 2010 in Novartis v OHIM — Sanochemia Pharmazeutika (TOLPOSAN), T‑331/09, ECR, EU:T:2010:520, paragraph 26, and in Maxigesic, cited in paragraph 22 above, EU:T:2013:537, paragraph 27).
32 The judgments of 17 October 2006 in Armour Pharmaceutical v OHIM — Teva Pharmaceutical Industries (GALZIN) (T‑483/04, ECR, EU:T:2006:323), and 16 June 2010 in Kureha v OHIM — Sanofi-Aventis (KREMEZIN) (T‑487/08, EU:T:2010:237), on which the applicant relies, do not lead to a different conclusion.
33 In those judgments, the Court found only that the level of attention of the relevant public vis-à-vis pharmaceutical products which are subject to medical prescription or which are intended to treat serious ailments was higher than that given to pharmaceutical products issued without a medical prescription or intended to treat minor ailments. However, in those judgments, the Court did not describe in absolute terms the level of attention which the relevant public would be likely to display vis-à-vis that second category of pharmaceutical products (see, to that effect, judgments in GALZIN, cited in paragraph 32 above, EU:T:2006:323, paragraph 79, and KREMEZIN, cited in paragraph 32 above, EU:T:2010:237, paragraph 69).
34 Moreover, as the Court of Justice has held, to require, as the applicant does, that account be taken of the lowest degree of attention which the public is capable of displaying when faced with a product and a mark would amount to denying all relevance, for the purpose of an assessment of the likelihood of confusion, to the criterion relating to the variable level of attention according to the category of goods (judgment of 12 January 2006 in Ruiz-Picasso and Others v OHIM, C‑361/04 P, ECR, EU:C:2006:25, paragraphs 42 and 43).
35 Lastly, as regards the specialised part of the relevant public, it is settled case-law that professionals in the medical and pharmaceutical fields have a high degree of attentiveness, regardless of the therapeutic indications of the pharmaceutical products in question (judgment in TOLPOSAN, cited in paragraph 31 above, EU:T:2010:520, paragraph 26 and the case-law cited); moreover, the applicant does not dispute this.
36 The fact that, as the applicant rightly notes, the Board of Appeal omitted to take into account goods other than the pharmaceutical products designated by the contested application for registration, for the purposes of defining the relevant public and therefore its level of attention, has no bearing, however, on the assessment made by this Court on that level of attention.
37 First, by analogy with the case-law cited in paragraph 35 above, it can be assumed that the professional public will display a high degree of attentiveness with regard to all the goods other than the pharmaceutical products which concern them in the present case, that is to say veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, plasters and materials for dressings, disinfectants, preparations for destroying vermin, fungicides and herbicides and also material for stopping teeth and dental wax.
38 Secondly, as OHIM states, products which concern the health of final consumers or that of their domestic animals, or even seek to protect it, such as veterinary preparations, sanitary preparations for medical purposes, dietetic substances adapted for medical use, plasters and materials for dressings and disinfectants, will receive a heightened level of attention from those same consumers (judgment in METABIOMAX, cited in paragraph 20 above, EU:T:2014:440, paragraphs 30 to 32 and the case-law cited). Similarly, as the Court has already held, since it is necessary for the well-being and health of children, and moreover those of a young age, food for babies is likely to be the subject of a level of attention from consumers which is at least above average, even if it is an everyday consumer product marketed by large retailers (judgment of 22 May 2012 in Nordmilch v OHIM — Lactimilk (MILRAM), T‑546/10, EU:T:2012:249, paragraph 27).
39 The same is true of preparations for destroying vermin, fungicides and herbicides. First, consumers will pay particular attention to the effectiveness of those goods which they buy to protect themselves against the presence in their environment of harmful or undesirable living organisms. Secondly, the average consumer is aware that, as OHIM notes, those goods may present health risks because of their biocidal properties.
40 Therefore, it must be concluded that the level of attention of the relevant public for all the goods at issue will be at least above the average for all the goods at issue. The omission of the Board of Appeal observed in paragraph 36 above therefore does not affect the merits of its assessment on that point and the applicant’s first complaint must therefore be rejected (see, by analogy, judgment of 27 February 2014 in Advance Magazine Publishers v OHIM — López Cabré (VOGUE), T‑229/12, EU:T:2014:95, paragraph 53).
The comparison of the goods
41 According to settled case-law, in order to assess the similarity of the goods or services concerned, all the relevant features of the relationship between those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment in METABIOMAX, cited in paragraph 20 above, EU:T:2014:440, paragraph 33 and the case-law cited).
42 The applicant does not dispute the Board of Appeal’s findings concerning the similarity with the goods designated by the earlier mark of goods other than preparations for destroying vermin, fungicides and herbicides and food for babies.
43 Since those findings of the Board of Appeal are, moreover, not vitiated by errors, they should be upheld.
44 By contrast, so far as concerns the goods listed in paragraph 42 above, the applicant considers that the Board of Appeal was wrong to conclude that there was no similarity with the goods designated by the earlier mark. First, the applicant considers that preparations for destroying vermin, fungicides and herbicides, particularly the first two categories of goods, ‘cover’ active agents that are applied in the field of medicine. The applicant takes the view that, accordingly, ‘at least’ with regard to those two categories of goods, it must be found that they are identical with the goods designated by the earlier mark.
45 Secondly, according to the applicant, in the light of its composition, its objective, its method of use and its distribution channels, food for babies shares common features with pharmaceutical products. The applicant takes the view that those two categories of products are also complementary, for the purpose of satisfying the special nutritional requirements or deficiencies of infants, and can also compete in some cases. The applicant therefore concludes that food for babies and pharmaceutical products and substances are similar to at least a medium degree.
46 In that regard, in the first place, it should be observed that the term ‘herbicide’ refers to all phytosanitary formulae designed to protect the environment, and in particular crops, against undesirable plants. Thus, the objective of such a product is entirely separate from the objective of pharmaceutical products to protect human health and it is well known that the active substances which they contain are not generally related to those used in pharmaceutical products. In addition, the distribution channels are also different. Lastly, with regard both to their intended purpose and to their nature, there is no competition or complementarity with pharmaceutical products. The Board of Appeal’s finding that herbicides and pharmaceutical products are not similar must therefore be upheld.
47 In the second place, it must be observed, as a preliminary point, that it is for the applicant for the mark at issue to limit, where appropriate, his application for registration of a trade mark to certain products not covered by the earlier mark. Thus, in the absence of such a limitation so far as concerns preparations for destroying vermin and fungicides, the Board of Appeal was correct to examine, within the context of the comparison of the goods, those categories of goods, as such, without splitting them into subcategories or individual items (see, to that effect, judgments of 23 November 2011 in Pukka Luggage v OHIM — Azpiroz Arruti (PUKKA), T‑483/10, EU:T:2011:692, paragraphs 37 and 38, and 11 June 2014 in Golam v OHIM — Glaxo Group (METABIOMAX), T‑62/13, EU:T:2014:436, paragraph 44).
48 However, it must be stated that, unlike herbicides, preparations for destroying vermin and fungicides cover a large spectrum of goods which, contrary to what the Board of Appeal held, is not restricted to goods intended for the protection of plants.
49 Thus, the ordinary meaning of the English term ‘vermin’ refers in everyday language to animal species whose presence is considered to be a risk or a nuisance to humans, their environment and human activities. That term may therefore refer, inter alia, to animal species representing a potential risk or nuisance to human health and to the health of domestic animals, for example, a parasitic species or a species which may be the source, by its presence or contact, of various animal and/or human diseases.
50 Consequently, it is possible that some preparations for destroying vermin may be used in order to prevent the risks to human or animal health which the species whose elimination is sought represent. In addition, the use of those preparations may be complementary to that of pharmaceutical or veterinary preparations used to treat ailments caused, directly or indirectly, by the presence of those animal species or contact with them. Moreover, some of those preparations, in particular some insecticides, may be sold in pharmacies.
51 Thus, in the light of the intended purpose of part of the preparations for destroying vermin, their complementary nature in relation to pharmaceutical or veterinary preparations and their distribution channels, it must be held that there is a low degree of similarity of that category with the goods covered by the earlier mark (see, to that effect and by analogy, as regards insecticides for killing dust mites, judgment of 10 September 2008 in Astex Therapeutics v OHIM — Protec Health International (astex TECHNOLOGY), T‑48/06, EU:T:2008:329, paragraphs 40 to 45).
52 Similarly, contrary to what OHIM claims, the ordinary meaning, in everyday language, of the English term ‘fungicide’ is not restricted to phytosanitary chemical products. It appears that that term generally refers to any active ingredient used to kill parasitic fungi, without restriction to a specific sector. Thus, the specialised terms used to refer to treatments of human or animal fungal infections, to which OHIM refers, refer to subcategories included in the general notion of ‘fungicide’ rather than to separate categories thereof.
53 Moreover, it should be observed that, in its judgment of 12 July 2012, medi v OHIM (medi) (T‑470/09, EU:T:2012:369), the Court held that fungicides could have a medical or therapeutic purpose (see, to that effect and by analogy, judgment in medi, EU:T:2012:369, paragraphs 36 to 38).
54 Consequently, for reasons similar to those set out in paragraphs 48 to 51 above, it must be held that there is a low degree of similarity between fungicides and the goods covered by the earlier mark.
55 In the third place, it should be noted that food for babies covers a large spectrum of goods, the majority of which are everyday consumer goods and which, as OHIM states, do not have a medical purpose or properties.
56 That said, those goods are nevertheless defined as food which, from a medical point of view, is suitable for consumption by babies who, because of their physiology or for other medical reasons, are not yet able to consume all types of normal food. As the applicant states, they are therefore goods which are specially composed in order to safeguard the health of infants and young children. Moreover, as the applicant also observes, it cannot be ruled out that some foods for babies might be complementary to medicines which are administered to them, particularly within the context of the treatment of nutritional deficiencies of young children, in the sense that one is indispensable or important for the use of the other.
57 Lastly, contrary to what OHIM suggests, the fact that some foods for babies are sold in pharmacies cannot generally be considered to be insignificant. In accordance with the case-law referred to in paragraph 41 above, the distribution channels of the goods concerned may constitute a relevant factor for the purpose of the comparison of those goods.
58 Consequently, in the light of a certain connection between some foods for babies and pharmaceutical products and substances in respect of their intended purpose, their method of use and their distribution channels, it must be held that there is a low degree of similarity between those goods (see, to that effect, judgment in METABIOMAX, cited in paragraph 47 above, EU:T:2014:436, paragraph 43).
The comparison of the signs at issue
59 According to settled case-law, the global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the signs at issue, must be based on the overall impression given by those signs, account being taken, in particular, of their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (judgment in METABIOMAX, cited in paragraph 20 above, EU:T:2014:440, paragraph 38 and the case-law cited).
As regards the visual comparison
60 In the present case, the applicant considers, contrary to the conclusions of the Board of Appeal, that the degree of visual similarity between the earlier word mark CHORAGON and the word mark applied for Koragel is at least average. In that regard, the applicant submits that the two signs at issue contain an identical sequence of four letters, out of seven or eight in total, and that the letters ‘h’ and ‘k’, which are placed immediately before that sequence, are visually highly similar. Moreover, the applicant alleges that German-speaking consumers are aware of the variations in spelling characterising the invented names beginning with ‘k’ or ‘ch’, which tends to dilute in their memory the difference between those two components.
61 In that regard, first, it should be observed that the first part of the earlier mark which immediately precedes the identical central part, ‘orag’, is composed of two letters ‘c’ and ‘h’, whereas in the mark applied for it is composed of only one letter, ‘k’. Next, it must be stated that, at a general visual impression level, the differences between the letter ‘k’ and the letter ‘h’ prevail over their common elements and that, a fortiori, there is no common element between the letter ‘k’ and the letter ‘c’. The general visual impression will be all the more different because, as stated in paragraph 59 above, the consumer will not proceed to analyse those various details.
62 Secondly, contrary to what the applicant suggests, the signs at issue cannot be considered by German-speaking consumers to be two variations in spelling of the same word if only because of the endings of those two signs, ‘on’ on the one hand and ‘el’ on the other, which have no common element. Consequently, the parallel which the applicant draws between those signs and first names which may, in German, equally begin with ‘k’ or with ‘ch’ is irrelevant.
63 Thus, it is reasonable to presume that, far from being diluted in the memory of German-speaking consumers, who perceive the signs at issue as a whole, the differences between the first parts of those signs will hold their attention all the more since they are accentuated by the differences between their final parts.
64 It is therefore necessary to uphold the Board of Appeal’s finding that the visual similarity of the signs is low.
As regards the aural comparison
65 The applicant does not dispute the assessments made by the Board of Appeal as regards the aural similarity between the signs at issue, and in particular as regards the above average aural similarity so far as concerns the German-speaking public.
66 That finding must be upheld. Although it is true that, aurally, the first two syllables and the initial sound of the third syllable of the signs at issue will generally be pronounced identically in German, the two final sounds ‘e’ and ‘l’, on the one hand, and ‘o’ and ‘n’, on the other, are clearly distinguishable in that language. Consequently, the aural similarity between those signs is above average as regards, at least, German-speaking consumers, but it is not high.
As regards the conceptual comparison
67 In this connection, it should be noted that, according to settled case-law, the global assessment of the likelihood of confusion implies that conceptual differences between two signs may counteract aural and visual similarities between them, provided that, from the point of view of the relevant public, there is a clear and specific meaning, so that the public is capable of grasping it immediately (judgments of 18 December 2008 in Les Éditions Albert René v OHIM, C‑16/06 P, ECR, EU:C:2008:739, paragraph 98 and the case-law cited, and in METABIOMAX, cited in paragraph 20 above, EU:T:2014:440, paragraph 53 and the case-law cited).
68 However, in the present case, it must be stated that, even if the suffix ‘gel’ of the sign Koragel is likely to be understood by the whole of the relevant public as referring to a gel-based product for medical or veterinary purposes, that conceptual content is not sufficient to confer on the sign considered a clear and specific meaning within the meaning of the case-law cited above. Moreover, whilst the sign CHORAGON may evoke, for part of the relevant public, a scientific term of Greek origin, the fact remains that it is devoid of any intelligible conceptual content.
69 Consequently, it must be concluded from this not, as the Board of Appeal held in paragraph 25 of the contested decision, that no conceptual similarity exists, which assumes that a conceptual comparison is possible, but rather that a conceptual comparison is not possible (judgments of 22 May 2012 in Retractable Technologies v OHIM — Abbott Laboratories (RT), T‑371/09, EU:T:2012:244, paragraph 41, and in MILRAM, cited in paragraph 37 above, EU:T:2012:249, paragraph 42).
The likelihood of confusion
70 According to settled case-law, a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between the goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgment in METABIOMAX, cited in paragraph 20 above, EU:T:2014:440, paragraph 56 and the case-law cited).
71 However, as noted in paragraph 22 above, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative. Accordingly, the opposition must be rejected regardless of the degree of similarity, or even the identity of the disputed signs, if the goods at issue are different (see, to that effect, order of 9 March 2007 in Alecansan v OHIM, C‑196/06 P, EU:C:2007:159, paragraph 26).
72 In the present case, the Court must reject at the outset the likelihood of confusion between the mark applied for and the earlier mark so far as concerns herbicides, which are different from the goods designated by the earlier mark.
73 Moreover, as regards the other goods designated by the mark applied for, it is necessary to uphold the global assessment of the Board of Appeal following which it concluded that there was no likelihood of confusion as regards the origin of the goods.
74 In the present case, account must be taken, in particular, of the normal inherent degree of distinctiveness of the earlier mark, which is not disputed, the low degree of visual similarity and the at least increased level of attention of consumers vis-à-vis the goods at issue. Moreover, although the Board of Appeal made an error in not concluding that there was no possible conceptual comparison between the signs at issue, the fact that there was no such possibility is not a factor liable to accentuate the similarity between those signs. Consequently, having regard to all of those factors, it must be held that, as the contested decision concludes, even German-speaking consumers, for whom the aural similarity will be above average, will not experience any difficulty in distinguishing the marks at issue, including with regard to the identical goods.
75 That is why the parallel drawn by the applicant with the global assessment of the likelihood of confusion made by the Court in the judgment in NICORONO, cited in paragraph 28 above (EU:T:2013:301), is irrelevant. In that judgment, the Court held that, taking into account the overall impression, the marks at issue had to be considered to be similar from a visual, aural and conceptual point of view (judgment in NICORNO, cited in paragraph 28 above, EU:T:2013:301, paragraph 70). In addition, it was not disputed in that case that the earlier mark had an increased distinctive character (judgment in NICORNO, cited in paragraph 28 above, EU:T:2013:301, paragraphs 75 and 76). The relevant factors for the global assessment of the likelihood of confusion in that case are therefore not comparable to those of the present case.
76 Moreover, as the Court observed in paragraphs 36 and 40 above, the omission of the Board of Appeal concerning the determination of the relevant public cannot affect the merits of its global assessment of the likelihood of confusion, given the heightened level of attention of the public with regard to all of the goods considered. The same is true of the Board of Appeal’s error relating to the comparison of the goods, which was established in paragraphs 48 to 58 above, since it follows from paragraph 74 above that the likelihood of confusion must be dismissed for all of the goods at issue, including the identical goods.
77 It is true that the applicant claims that the Board of Appeal wrongly accorded overriding importance to the visual differences between their signs in relation to their aural similarities, whereas, instead, according to the applicant, having regard to the conditions for the marketing of the goods at issue, more emphasis should be put on the aural similarities than on the visual similarities, in accordance with OHIM’s established practice.
78 However, as is clear from paragraph 30 of the contested decision, the Board of Appeal did not disregard the existence of an above average aural similarity and, in order to dismiss the likelihood of confusion, relied not only on the low degree of visual similarity, but also on the increased level of attention of the relevant public and the normal degree of inherent distinctiveness of the earlier mark. For the same reasons, the Court must reject as having no factual basis the applicant’s claim that the Board of Appeal wrongly held that the increased level of attention of the relevant public sufficed in itself to exclude any likelihood of confusion.
79 Moreover, the specific features of the conditions for the marketing of the goods at issue do not justify giving more importance in the present case to the aural comparison than to the visual comparison.
80 Consequently, as regards, first of all, pharmaceutical preparations available only on medical prescription, it should be observed that, since the trade mark of those preparations is written on a prescription by the prescribing doctor, the consumer is necessarily confronted with a visual representation of that mark before ordering them, in some circumstances orally, from a pharmacist.
81 In any event, account should be taken of the generally high level of attention of the consumer with regard to pharmaceutical preparations, independently of whether or not they are issued with a medical prescription. Thus, as OHIM indeed noted at the hearing, it must be assumed that a pharmaceutical preparation will generally be the subject, before its purchase, of a visual inspection on the part of the consumer when the professional from whom he ordered that product presents it to him. The same considerations are applicable to other goods designated by the mark applied for which also need to be ordered from a professional, such as veterinary preparations or preparations for medical use.
82 In addition, the remainder of the goods at issue are generally available on a self-service basis, with the result that the consumer is likely to have, first of all, a visual representation of those goods and examine them on that basis, even if he also has recourse to the oral recommendations of a professional before making his purchase.
83 Consequently, although the aural similarity between the marks at issue undeniably plays a significant role owing to the conditions governing the purchase of some of the goods at issue, that role cannot be regarded as overriding that of the visual similarity. The judgment of 15 March 2012 in Cadila Healthcare v OHIM — Novartis (ZYDUS) (T‑288/08, EU:T:2012:124), cited by the applicant in support of its argument, cannot invalidate such an analysis since the Court concluded therein, as regards a spectrum of goods comparable to that at issue in the present case, precisely that there was no factor making it possible to attribute a preponderant weight to the visual aspect or, conversely, to the aural aspect in the global assessment of the likelihood of confusion (judgment in ZYDUS, EU:T:2012:124, paragraph 65).
84 Similarly, contrary to the applicant’s assertions, it cannot be generally assumed that the elements of difference between the marks would tend to become less marked in the consumer’s memory in favour of the elements of similarity. Thus, in accordance with settled case-law, the extent of the similarity or difference between the signs at issue may depend, in particular, on the inherent qualities of the signs or the conditions under which the goods or services covered by them are marketed (judgments in ZYDUS, cited in paragraph 83 above, EU:T:2012:124, paragraph 64, and of 11 December 2013 in Eckes-Granini v OHIM — Panini (PANINI), T‑487/12, EU:T:2013:637, paragraph 63). In addition, it follows from the case-law referred to in paragraph 67 above that, in certain circumstances, differences which the signs present in some aspects, for example in the conceptual aspect, may, in the minds of consumers, counteract to a large extent the similarities existing between those signs in other aspects, for example in the visual or aural aspect.
85 As a result, it must be held that the Board of Appeal was correct to conclude, following the global assessment of the likelihood of confusion between the marks at issue, that there was no such likelihood.
86 Accordingly, the Court must reject the claim for annulment of the contested decision and, as a result, the claim for the opposition to be upheld and for the application for registration of the Community trade mark Koragel to be rejected.
Costs
87 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
88 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with form of order sought by OHIM.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders Ferring BV to pay the costs.
Delivered in open court in Luxembourg on 13 May 2015.
[Signatures]