JUDGMENT OF THE GENERAL COURT (Third Chamber)
10 September 2025 (*)
( EU trade mark – Opposition proceedings – Application for EU word mark Monta – Earlier national figurative mark MONTACK – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑371/24,
La Superquímica, SA, established in Barcelona (Spain), represented by D. Pellisé Urquiza and K. Bitton Fernández, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Monta Klebebandwerk GmbH, established in Immenstadt (Germany), represented by M. Hoffmann, lawyer,
THE GENERAL COURT (Third Chamber),
composed of P. Škvařilová-Pelzl, President, I. Nõmm and D. Kukovec (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the conditional request for a hearing submitted by the applicant and the fact that no request for a hearing was submitted by the other 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, La Superquímica, SA, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 May 2024 (Case R 2006/2023-2) (‘the contested decision’).
Background to the dispute
2 On 26 July 2018, the intervener, Monta Klebebandwerk GmbH, filed an application for registration of an EU trade mark with EUIPO in respect of the word sign Monta.
3 The mark applied for covered goods and services in Classes 16 and 17 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 16: ‘Adhesive tapes, adhesive strips and adhesive foils for packaging and wrapping; adhesive tapes, adhesive strips and adhesive films being office requisites; adhesive tapes, adhesive strips and adhesive film, namely manufactured from paper, synthetic materials or textile materials for household purposes; printed and printable adhesive tapes; stationery for domestic purposes’;
– Class 17: ‘Adhesive tapes, adhesive strips and adhesive films for use in industry, for technical purposes, for use in industry and for insulation purposes; adhesive tapes and adhesive films being seals for cardboard boxes, and for packaging articles, including heavy articles; adhesive tapes, adhesive strips and adhesive films, namely manufactured using paper, synthetic materials or textile materials for technical purposes, for the packaging industry and for insulation purposes; masking papers [adhesive] other than for stationery, household or medical use; paper adhesive tape, other than for household, medical or stationery purposes; thermoformable splicing tape for the blister packaging and thermoformed packaging manufacturing process for the pharmaceutical industry and for the food industry; tear-off tape for cardboard boxes and mailing bags; adhesive tapes, adhesive strips and adhesive films being surface protection; adhesive tapes, adhesive strips and adhesive films for the construction industry and painting sector’.
4 On 3 December 2018, 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 Spanish figurative mark reproduced below, which was filed on 30 December 2002, registered on 9 December 2012 under reference M2 519 690 and renewed in March 2023:
6 The goods in respect of which the earlier trade mark was registered were in Classes 1 and 16 and corresponded, for each of those classes, to the following description:
– Class 1: ‘Adhesives used in industry’;
– Class 16: ‘Adhesives for stationery or household purposes’.
7 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).
8 On 20 April 2021, the intervener requested proof of use of the earlier mark. On 12 September 2022, the applicant provided various items of evidence of use.
9 On 8 August 2023, the Opposition Division rejected the opposition, finding that there was no likelihood of confusion.
10 On 26 September 2023, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
11 By the contested decision, the Board of Appeal dismissed the appeal, also finding that there was no likelihood of confusion.
Forms of order sought
12 The applicant claims that the Court should:
– annul the contested decision;
– order EUIPO or the intervener to pay the costs of the present proceedings and those of the proceedings before the Opposition Division and before the Board of Appeal;
13 EUIPO contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs in the event that a hearing is convened.
14 The intervener contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
15 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, in that the Board of Appeal wrongly found that there was no likelihood of confusion in the present case. In that regard, it submits that the Board of Appeal erred in its assessment of the comparison of both the goods and the signs, as well as in its global assessment of the likelihood of confusion.
16 It should be noted 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.
The relevant public
17 The Board of Appeal found that, first, the goods in question were aimed both at the general public and at the professional public, whose level of attention varied from average to high and, second, since the earlier mark was a Spanish mark, the relevant territory for the purposes of assessing the likelihood of confusion was Spain.
18 There is no reason to call into question those assessments, which, moreover, have not been disputed by the applicant.
The comparison of the goods
19 As a preliminary point, it should be noted that the Opposition Division found that genuine use of the earlier mark had been proved only in respect of the goods in Class 16, namely ‘adhesives for stationery or household purposes’. The Board of Appeal took the view that, since that assessment had not been called into question by the parties to the proceedings, that mark could be deemed to be registered for those specific goods.
20 First, the Board of Appeal found that the goods referred to in paragraph 19 above had an above-average degree of similarity to the goods in Class 16 covered by the mark applied for.
21 Second, the Board of Appeal found that the goods referred to in paragraph 19 above had a below-average degree of similarity to the following goods in Class 17 covered by the mark applied for: ‘Adhesive tapes, adhesive strips and adhesive films for use in industry, for technical purposes, for use in industry and for insulation purposes; adhesive tapes and adhesive films being seals for cardboard boxes, and for packaging articles, including heavy articles; adhesive tapes, adhesive strips and adhesive films, namely manufactured using paper, synthetic materials or textile materials for technical purposes, for the packaging industry and for insulation purposes; masking papers [adhesive] other than for stationery, household or medical use; paper adhesive tape, other than for household, medical or stationery purposes; tear-off tape for cardboard boxes and mailing bags; adhesive tapes, adhesive strips and adhesive films being surface protection; adhesive tapes, adhesive strips and adhesive films for the construction industry and painting sector’. By contrast, it found that they had only a very slight degree of similarity, if any, to the other goods in the same class covered by the mark applied for, namely ‘thermoformable splicing tape for the blister packaging and thermoformed packaging manufacturing process for the pharmaceutical industry and for the food industry’.
22 The applicant disputes those assessments of the Board of Appeal.
23 In the first place, the applicant criticises the Board of Appeal for having erred in finding that genuine use of the earlier mark had been proved only in respect of the goods in Class 16, excluding those in Class 1.
24 In the second place, the applicant submits that the Board of Appeal made several errors in the assessment of the similarity of the goods in question.
25 More specifically, according to the applicant, the goods referred to in paragraph 19 above should have been considered to be identical to the goods in Class 16 covered by the mark applied for, given that they have the same nature and intended purpose, are manufactured by the same undertakings and commercialised through the same distribution channels, are aimed at the same public and have the same method of use.
26 Furthermore, the Board of Appeal erred in finding that the goods referred to in paragraph 19 above had, on the one hand, only a below-average degree of similarity to the goods in Class 17 covered by the mark applied for, as referred to in the first sentence of paragraph 21 above, and, on the other hand, only a very slight degree of similarity, if any, to the remaining goods in Class 17, as referred to in the second sentence of paragraph 21 above. According to the applicant, all of those goods should have been found to be similar to a high degree, given that their nature, intended purpose, origin, method of use and distribution channels are the same.
27 EUIPO and the intervener dispute the applicant’s arguments.
28 It should be noted at the outset, in the light of the applicant’s line of argument referred to in paragraph 23 above, that the purpose of actions before the Court under Article 72(2) of Regulation 2017/1001 is to review the legality of decisions of the Boards of Appeal. In the context of that regulation, pursuant to Article 95 thereof, 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).
29 As stated in paragraph 19 above, the applicant did not challenge before the Board of Appeal the finding of the Opposition Division that genuine use of the earlier mark had not been proved in respect of the goods in Class 1. In those circumstances, to allow the applicant to raise such a challenge at the stage of the action before the Court would amount to changing the subject matter of pending proceedings, which is prohibited by Article 188 of the Rules of Procedure of the General Court (see, to that effect, judgment of 9 July 2008, Reber v OHIM – Chocoladefabriken Lindt & Sprüngli (Mozart), T‑304/06, EU:T:2008:268, paragraph 29 and the case-law cited).
30 Consequently, since the issue of genuine use of the earlier mark in respect of the goods in Class 1 was not part of the subject matter of the dispute before the Board of Appeal, the applicant cannot criticise the Board of Appeal for having failed to examine it, with the result that the line of argument referred to in paragraph 23 above must be rejected.
31 As regards the comparison of the goods, it must be borne in mind that, according to settled case-law, in assessing the similarity of the goods or services in question, all the relevant factors relating to those goods or 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 goods concerned (see judgment of 24 April 2024, Adeva v EUIPO – Sideme (MAISON CAVIST.), T‑313/23, not published, EU:T:2024:270, paragraph 24 and the case-law cited).
32 Furthermore, according to the case-law, goods can be considered to be identical when the goods covered by the earlier mark are included in a more general category covered by the contested mark (see judgment of 24 April 2024, MAISON CAVIST., T‑313/23, not published, EU:T:2024:270, paragraph 30 and the case-law cited).
33 In the present case, first, it must be held that the goods in Class 16 covered by the mark applied for, as referred to in paragraph 3 above, cannot be regarded as including, within the meaning of the case-law referred to in paragraph 32 above, the ‘adhesives for stationery or household purposes’ in Class 16 covered by the earlier mark. Although those goods coincide in certain respects, such as their intended purpose and distribution channels, the fact remains that they differ in other respects, in particular their nature. Although the adhesives covered by the earlier mark are generally available in liquid form, the various goods covered by the mark applied for in Class 16 are tapes, strips, adhesive films and stationery for household use. Furthermore, as EUIPO correctly submits, the mere fact that the goods in question all contain adhesives is not sufficient to consider them to be identical.
34 Furthermore, it must be stated that the applicant merely asserts, in an unsubstantiated manner, that the goods in question are identical, in that they have the same nature and the same intended purpose, are manufactured by the same undertakings and commercialised by the same distribution channels, are aimed at the same public and have the same method of use. By such unsubstantiated assertions, the applicant has not shown to the requisite legal standard that the finding made by the Board of Appeal with regard to those specific goods, as noted in paragraph 20 above, was vitiated by an error of assessment.
35 The applicant’s claim that the goods in question in Class 16 are identical must therefore be rejected as being unfounded.
36 Second, it should be noted that although, as is apparent, in essence, from paragraphs 32 to 35 of the contested decision, the ‘adhesives for stationery or household purposes’ in Class 16 covered by the earlier mark and the goods referred to in the first sentence of paragraph 21 above, in Class 17 and covered by the mark applied for, coincide in their intended purpose, in that they are all intended to glue articles, their nature and their specific fields of application are different. The goods covered by the earlier mark are adhesives as such, mostly of liquid consistency, whereas the goods in question covered by the mark applied for are, in the main, tapes, strips and adhesive films, which merely contain adhesive substances. In addition, although the goods covered by the earlier mark are intended for stationery and household purposes, the goods in question covered by the mark applied for are mainly used in industry for technical purposes. Furthermore, although all those goods may be sold, inter alia, in DIY shops, they are generally sold in separate departments and, moreover, are normally supplied through different distribution channels.
37 Third, it must be held, as the Board of Appeal did, that the goods referred to in the second sentence of paragraph 21 above, in Class 17 and covered by the mark applied for, since they are intended for the pharmaceutical and food industries, have only a very slight degree of similarity to the goods covered by the earlier mark, which are intended for stationery and household purposes.
38 Furthermore, it should be noted that the applicant merely asserts, in an unsubstantiated manner, that all of the goods referred to in paragraph 21 above have the same nature, intended purpose, origin, method of use and distribution channels. Such general assertions cannot succeed, since they cannot be regarded as sufficient to show that the Board of Appeal’s findings with regard to those specific goods were incorrect.
39 In the light of the foregoing, it must be concluded that the Board of Appeal did not make any errors of assessment in finding, first, that the goods in Class 16 covered by the mark applied for had an above-average degree of similarity to the goods covered by the earlier mark and, second, that the goods in Class 17 covered by the mark applied for had, in part, a below-average degree of similarity and, in part, a very slight degree of similarity, if any, to the goods covered by the earlier mark.
The comparison of the signs
40 The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment 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 (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
41 According to case-law, two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see judgment of 28 April 2021, FCA Italy v EUIPO – Bettag (Pandem), T‑191/20, not published, EU:T:2021:226, paragraph 34 and the case-law cited).
42 In accordance with the case-law cited in paragraph 40 above, in order to assess the visual, phonetic and conceptual similarity of the signs at issue, their distinctive and dominant elements must be borne in mind.
The distinctive and dominant elements
43 First, as regards the earlier mark, the Board of Appeal found, in essence, that that mark, consisting of the word ‘montack’, was not divisible into several elements, one of which could be dominant, and that, in addition, that term, taken as a whole, had an average degree of inherent distinctiveness in relation to the goods in question.
44 More specifically, the Board of Appeal found, in essence, that the term ‘montack’ was understood by the Spanish-speaking public as an integral unit, with the result that that public would not break it down into several distinct elements, one of which could be considered to be dominant. The most likely scenario would be that that term is broken down according to its syllabic structure. However, neither of the syllables ‘mon’ and ‘tack’ has any meaning as such.
45 The Board of Appeal added, in paragraph 42 of the contested decision, that, even though it could not be ruled out that the Spanish-speaking public could perceive the word ‘montack’ as a reference to, and an allusion to, the Spanish verb ‘montar’, which means ‘to assemble’, ‘putting together’ and, therefore, as having a link with the adhesive goods, the fact remains that such a link cannot be considered to be perceived immediately, within the meaning of the case-law arising from the judgment of 15 December 2016, Intesa Sanpaolo v EUIPO (START UP INITIATIVE) (T‑529/15, EU:T:2016:747, paragraph 62).
46 Furthermore, if the verb ‘montar’ were a common descriptive word in Spanish for adhesive goods, the term ‘montack’ would have its own distinctive character on account of the suffix ‘ck’. In support of that finding, the Board of Appeal stated that the letter ‘k’ and, even more so, the suffix ‘ck’ were very uncommon in Spanish. Even if the Spanish-speaking public were to assume that it is a Spanish word, linguistic instinct would, however, suggest that the unusual syllable ‘tack’ is perceived as a whole and that the letters ‘ck’ do not merely form a variation of the word element ‘monta’. It follows that the term contained in the earlier mark, assessed as a whole, has no meaning.
47 Second, as regards the mark applied for, the Board of Appeal found that that mark consisted of the single term ‘monta’, which refers to the imperative form and to the third person present indicative of the Spanish verb ‘montar’, which means ‘to assemble’, ‘putting together’, and has a clear and immediately understandable meaning for the Spanish-speaking public, which will establish a direct and immediate link with the adhesive goods.
48 The applicant merely asserts that the similarity of the signs at issue must be assessed, in particular, in the light of their distinctive and dominant elements. In addition, it submits that that assessment should be carried out, principally, on the word elements ‘montack’ and ‘monta’.
49 In the light of the foregoing and inasmuch as the applicant has not disputed the Board of Appeal’s assessments referred to in paragraphs 43 and 47 above, it must be held that, since, on the one hand, the mark applied for is made up of the single word element ‘monta’ and, on the other hand, the earlier mark contains the word element ‘montack’, each of the signs at issue consists of a single word that will not be broken down by the relevant public, but will be perceived as a whole by that public (see, to that effect, judgment of 28 April 2021, Nosio v EUIPO – Tros del Beto (ACCUSÌ), T‑300/20, not published, EU:T:2021:223, paragraph 36).
50 Consequently, the marks at issue do not contain any element which is more distinctive than the others or dominant.
The visual comparison
51 The Board of Appeal found, in essence, that although the signs at issue were similar, in that they shared the first five letters, in the same order and appearing, in the earlier mark, at the beginning of that mark, they nevertheless differed on account of the two additional letters ‘ck’ in that mark. In addition, the graphic design of the earlier mark does not constitute a substantial difference, since it is a standard typeface and a common colour design.
52 Furthermore, according to the Board of Appeal, even though the fact that, first, the mark applied for is entirely contained in the earlier mark and, secondly, in accordance with the case-law, the public tends to pay more attention to the beginning of word signs than to the other parts of them would suggest a high degree of similarity between the signs at issue, it is nevertheless necessary to take into account, in the context of that assessment, the fact that the beginning of the earlier mark is not perceived as being weakly distinctive, since, as stated in paragraph 49 above, the Spanish-speaking public understands that mark as an integral unit and does not work to break it down it into several distinct elements.
53 In the light of those factors and taking into account the different lengths of the signs at issue, as well as the relative shortness of the mark applied for, the Board of Appeal found, as the Opposition Division did, that those signs had an average degree of visual similarity.
54 The applicant disputes the Board of Appeal’s assessment, claiming, in essence, that, since the term ‘monta’ in the mark applied for is entirely included in the earlier mark and appears, moreover, at the beginning of that mark, the signs at issue should have been found to be visually similar to a high degree. That interpretation is supported, furthermore, by the case-law resulting, inter alia, from the judgments of 29 January 2013, Fon Wireless v OHIM – nfon (nfon) (T‑283/11, not published, EU:T:2013:41, paragraph 48), and of 7 June 2023, Sanity Group v EUIPO – AC Marca Brands (Sanity Group) (T‑541/22, not published, EU:T:2023:310, paragraph 31).
55 EUIPO and the intervener dispute the applicant’s arguments.
56 It should be borne in mind, as a preliminary point, that the average consumer only rarely has the chance to make a direct comparison between the different signs but must place his or her trust in the imperfect picture of them that that consumer has kept in his or her mind (see judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 60 and the case-law cited).
57 In the present case, it must be noted that the signs at issue coincide in the sequence of the five letters ‘monta’ and differ in the ending ‘ck’ included in the earlier mark. Thus, as the applicant submits and as the Board of Appeal has also found, the signs coincide in their initial part.
58 In so far as the applicant relies on the increased attention paid to the beginning of the earlier mark, it must be borne in mind that that cannot apply in all cases and cannot call into question the general principle that the assessment of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details. Therefore, the Court must not take as its starting point the premiss that the consumer pays greater attention to the beginning of a sign than to its end. It may hold that the end of signs which are the subject of opposition proceedings is more distinctive or dominant than the beginning of those signs or even that one of the elements in those signs is not more distinctive or dominant than the other (see, to that effect, judgment of 1 March 2023, Canai Technology v EUIPO – Trend Fin (HE&ME), T‑25/22, not published, EU:T:2023:99, paragraph 56 and the case-law cited).
59 Furthermore, it should be noted that it is apparent from the case-law that, as regards relatively short signs containing word elements, as in the present case, the elements at the beginning of the signs are as important as the other elements, including those at the end of the signs. It follows that the relevant public will not disregard any letter of such signs (see, to that effect, judgment of 28 April 2021, Pandem, T‑191/20, not published, EU:T:2021:226, paragraph 39 and the case-law cited).
60 In the present case, the end of the earlier mark is more likely to attract attention, given the unusual nature of the use, in Spanish, of the suffix ‘ck’.
61 In the light of the foregoing, it must be held that, taking into account the marks at issue as a whole and, in particular, the final part of the earlier mark, there is an average degree of visual similarity between the marks at issue. Thus, the Board of Appeal did not make any errors in assessing the degree of visual similarity between the two marks.
The phonetic comparison
62 The Board of Appeal found that the signs at issue had an above-average degree of phonetic similarity, on the ground that those signs each consisted of two syllables and that, in addition, the difference resulting from the insertion of the letters ‘ck’ in the earlier mark, although capable of having a slight impact on the sound of the common letter ‘a’, could, however, offset that degree of similarity only to a limited extent.
63 The applicant disputes that finding, claiming, in essence, that, since, first, the composition and rhythm of the signs at issue are the same and, second, those signs differ only in the last sound ‘k’ of the earlier mark, the Board of Appeal should have found that the signs at issue were strongly phonetically similar, or even identical.
64 EUIPO and the intervener dispute the applicant’s arguments.
65 It must be held that, as EUIPO correctly submits, given that the signs at issue coincide on account of their respective pronunciation in two syllables, but differ in the insertion of the ending ‘ck’ in the earlier mark, which will be pronounced as a single letter ‘k’ and will be clearly audible when that mark is pronounced, the earlier mark cannot be regarded as identical to the mark applied for.
66 It follows that the Board of Appeal did not make an error of assessment in finding that the signs at issue had an above-average degree of phonetic similarity.
The conceptual comparison
67 The Board of Appeal stated, in paragraphs 53 and 70 of the contested decision, that, since only the mark applied for had a meaning immediately perceptible to the Spanish-speaking public, the signs at issue could not be compared conceptually. Nevertheless, in paragraphs 69, 71 and 72 of that decision, it concluded, relying on the Opposition Division’s findings in that regard, that the signs at issue were conceptually different.
68 In the first place, relying on the Board of Appeal’s assessment in paragraphs 40 to 42 of the contested decision, as summarised in paragraphs 45 and 46 above – in particular on the fact that it found, in paragraph 42 of that decision, that it could not be ruled out that the Spanish-speaking public could perceive the earlier mark as a reference to and an allusion to the Spanish verb ‘montar’, which means ‘to assemble’, ‘putting together’ – the applicant submits that that mark may be understood as relating to that verb. In order to do so, it is sufficient to separate the term ‘monta’ from the final letters ‘ck’ and to apply the case-law resulting, inter alia, from the judgment of 29 January 2013, nfon (T‑283/11, not published, EU:T:2013:41, paragraphs 58 to 62 and the case-law cited), from which it is apparent that the relevant public normally works to break down a sign into word elements which suggest a concrete meaning for it or which resemble words known to it.
69 Moreover, according to the applicant, the contested decision contains contradictory statements, since the Board of Appeal suggests, in paragraph 42 of that decision, that the Spanish-speaking public could perceive the earlier mark as a reference to, and an allusion to, the Spanish verb ‘montar’, while concluding, in paragraphs 52 and 53 of that decision, that, since that mark does not have an immediately perceptible meaning for that public, a conceptual comparison is not possible.
70 In the second place, according to the applicant, it is apparent, in essence, from an application, by analogy, of the case-law resulting from the judgment of 29 January 2013, nfon (T‑283/11, not published, EU:T:2013:41, paragraphs 53 to 55), that, in the present case, the signs at issue should have been considered to be conceptually similar to at least an average degree.
71 EUIPO and the intervener dispute the applicant’s arguments.
72 It should be borne in mind that it is apparent from the case-law that, although a conceptual comparison of the signs is not possible where neither of the signs being compared has a meaning, that comparison is, however, possible and relevant where one of the two signs has an immediately perceptible meaning for the relevant public (see, to that effect, judgment of 5 May 2021, Grangé and Van Strydonck v EUIPO – Nema (âme), T‑442/20, not published, EU:T:2021:237, paragraph 60 and the case-law cited).
73 It is also apparent from the case-law that, where the relevant public attributes a clear and immediately perceptible meaning to only one of the two signs compared, the signs at issue must be considered not to be conceptually similar (see, to that effect, judgment of 5 May 2021, âme, T‑442/20, not published, EU:T:2021:237, paragraph 60 and the case-law cited), with the result that they are conceptually different (see, to that effect, judgment of 28 April 2021, ACCUSÌ, T‑300/20, not published, EU:T:2021:223, paragraph 50 and the case-law cited).
74 In the present case, it should be noted at the outset that, in the light of the case-law cited in paragraph 72 above, the Board of Appeal erred in finding, in paragraphs 53 and 70 of the contested decision, that the signs at issue could not be compared conceptually.
75 That error cannot, however, lead to the annulment of the contested decision, since, despite the abovementioned finding, the Board of Appeal concluded, in paragraphs 69, 71 and 72 of that decision, that the signs at issue were conceptually different.
76 First, that interpretation is supported by the fact that, in paragraph 69 of the contested decision, the Board of Appeal adopted the reasoning of the Opposition Division’s decision as regards the conceptual comparison. As stated in the eighth indent of paragraph 8 of the contested decision, the Opposition Division found that the signs at issue were not conceptually similar, thus taking the view that they were conceptually different.
77 Second, as is apparent from paragraphs 69 and 72 of the contested decision, the Board of Appeal based its assessment of the conceptual comparison of the signs at issue on the judgments of 4 March 2020, EUIPO v Equivalenza Manufactory (C‑328/18 P, EU:C:2020:156, paragraph 74 et seq.), and of 13 April 2005, Duarte y Beltrán v OHIM – Mirato (INTEA) (T‑353/02, EU:T:2005:124, paragraph 32), both of which concerned signs considered to be conceptually different.
78 The conclusion reached in paragraph 75 above cannot be called into question by the applicant’s line of argument referred to in paragraph 69 above, since that argument is based on a misreading of paragraph 42 of the contested decision. As has already been pointed out in paragraph 46 above, the Board of Appeal found, in paragraph 42 of that decision, that, even though it could not be ruled out that the Spanish-speaking public would perceive the term contained in the earlier mark as a reference to, and an allusion to, the Spanish verb ‘montar’, which means ‘to assemble’, ‘putting together’ and, therefore, as having a link with the adhesive goods, the fact remains that such a link cannot be considered to be immediately perceived. According to the case-law resulting, inter alia, from the judgment of 15 December 2016, START UP INITIATIVE (T‑529/15, EU:T:2016:747, paragraph 62), on which the Board of Appeal relied in paragraph 42 of the contested decision, the relevant public must recognise such a link immediately, without having to analyse the sign at issue.
79 Furthermore, it should be noted that paragraph 42 of the contested decision must be interpreted in its context, that is to say, in the light of the other findings of the Board of Appeal set out in the paragraphs preceding paragraph 42. In paragraphs 40 and 41 of that decision, the Board of Appeal noted, inter alia, that the term making up the earlier mark was perceived by the Spanish-speaking public as an integral unit and that, assessed as a whole, that term had no meaning.
80 In the light of the foregoing, the applicant’s line of argument referred to in paragraph 69 above must be rejected as being unfounded.
The distinctive character of the earlier mark
81 According to settled case-law, the degree of distinctive character of the earlier mark, which determines the extent of the protection conferred by it, is one of the relevant factors for assessing the likelihood of confusion. The more distinctive the earlier mark, the greater the likelihood of confusion. Nevertheless, the existence of a likelihood of confusion is not precluded where the distinctive character of the earlier mark is weak (see judgment of 7 June 2023, Cassa Centrale v EUIPO – Bankia (BANQUÌ), T‑368/22, not published, EU:T:2023:309, paragraph 34 and the case-law cited).
82 In the present case, the Board of Appeal concluded, in essence, that, since the term ‘montack’ had no directly perceptible meaning for the Spanish-speaking public and could not be immediately understood by that public as an allusion to a specific term, it had to be held that the earlier mark had an average degree of inherent distinctive character.
83 Although the applicant claims, in the context of the conceptual comparison of the signs at issue, that the earlier mark may be perceived as an allusion to the Spanish word ‘montar’, it does not, however, dispute the Board of Appeal’s conclusion referred to in paragraph 82 above and there is therefore no reason to call that conclusion into question.
Global assessment of the likelihood of confusion
84 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, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
85 It is also apparent from settled case-law that, in the global assessment of the likelihood of confusion, the visual, phonetic or conceptual aspects of the signs at issue do not always have the same weight and the extent of the similarity or difference between those signs may depend on their inherent qualities (see, to that effect, judgment of 28 April 2021, ACCUSÌ (T‑300/20, not published, EU:T:2021:223, paragraph 53 and the case-law cited).
86 It is also apparent from settled case-law that the global assessment of the likelihood of confusion implies that conceptual differences between the signs at issue may counteract phonetic and visual similarities between those two signs, provided that at least one of them has a clear and specific meaning for the relevant public, so that that public is capable of grasping it immediately (see, to that effect, judgment of 4 March 2020, EUIPO v Equivalenza Manufactory, C‑328/18 P, EU:C:2020:156, paragraph 74 and the case-law cited).
87 It should also be borne in mind that the Court has repeatedly held that there is nothing to prevent a finding, in view of the circumstances of a particular case, that there is no likelihood of confusion, even where identical goods are involved and there is a weak degree of similarity between the marks at issue (see, to that effect, 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).
88 It is apparent from the case-law cited in paragraphs 86 and 87 above that the extent of the similarity or difference between the signs at issue and the potential counteraction of the similarities must be examined at the stage of the global assessment of the likelihood of confusion.
89 In the present case, the Board of Appeal expressly relied on the principle of the interdependence between the factors set out in the case-law cited in paragraphs 85 to 87 above, stating, in essence, that the likelihood of confusion had to be assessed globally, in the light of that principle, and in the light of the particular circumstances of the present case. In that regard, it noted, in particular, that the conceptual difference between the signs at issue, linked to the fact that, unlike the earlier mark, the mark applied for had a clear and immediately perceptible meaning for the relevant public, counteracted the visual and phonetic similarities, with the result that the signs at issue could not be regarded as originating from the same undertaking or from economically linked undertakings. The Board of Appeal therefore concluded that the Opposition Division was correct to find that there was no likelihood of confusion.
90 The applicant disputes that assessment on the part of the Board of Appeal, claiming, in essence, that the visual and phonetic similarities between the signs at issue are so high that they cannot properly be counteracted by the conceptual difference. Furthermore, it repeats, in that context, that the earlier mark could, like the mark applied for, be understood by the Spanish-speaking public as an allusion to the verb ‘montar’, with the result that the two signs cannot be considered to be conceptually different.
91 EUIPO and the intervener dispute the applicant’s arguments.
92 It should be borne in mind that the Board of Appeal correctly found, with regard to the goods in question, first, that the goods in Class 16 covered by the mark applied for had an above-average degree of similarity to the goods covered by the earlier mark and, second, that the goods in Class 17 covered by the mark applied for had, in part, a below-average degree of similarity and, in part, a very slight degree of similarity, if any, to the goods covered by the earlier mark.
93 As regards the signs at issue, the Board of Appeal found that they had an average degree of visual similarity, an above-average degree of phonetic similarity and that they were conceptually different. In accordance with the principle of interdependence, the Board of Appeal was correct to find that the conceptual differences outweighed the visual and phonetic similarities found.
94 In accordance with the case-law cited in paragraphs 85 to 87 above, it must be held that, having regard, first, to the factors referred to in paragraphs 92 and 93 above and, second, to the circumstances of the present case, in particular, to the fact that the mark applied for, inasmuch as it refers to the Spanish verb ‘montar’, which means ‘to assemble’, ‘putting together’, has a clear and immediately perceptible meaning for the Spanish-speaking public, which will establish a direct and immediate link with the adhesive goods, whereas the term used in the earlier mark is perceived by that public as an integral unit, with the result that it cannot be understood as linked with the goods in question, the Board of Appeal did not make an error of assessment in finding that there was no likelihood of confusion.
95 In those circumstances, the Board of Appeal correctly found that there was no likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation 2017/1001.
96 Since the single plea in law is unfounded, the action must be dismissed in its entirety, without it being necessary to examine the argument by which EUIPO disputes the admissibility of the applicant’s claim seeking reimbursement of the costs which it incurred in the course of the proceedings before the Opposition Division.
Costs
97 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
98 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 applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as a hearing has not been organised, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders La Superquímica, SA to bear its own costs and to pay those incurred by Monta Klebebandwerk GmbH.
3. Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Škvařilová-Pelzl | Nõmm | Kukovec |
Delivered in open court in Luxembourg on 10 September 2025.
V. Di Bucci | | R. Mastroianni |