Judgment – 09/09/2026 – Modus v. EUIPO, Case T‑608/25

– The case concerned proceedings for a declaration of invalidity of the EU figurative mark registered for goods and services in Classes 9 and 42 relating to business-document workflow management software. The application for a declaration of invalidity was based on the earlier international registration of the word mark PAPYRUS designating the European Union, registered for “data processing apparatus, computers” in Class 9, and relied on Article 60(1)(a) in conjunction with Article 8(1)(b) of Regulation 2017/1001.

Earlier Mark	Contested Mark
PAPYRUS (Owner: ISIS Papyrus Europe AG)	(Owner: Modus AE)

 

– The Cancellation Division upheld the application in respect of almost all the goods and services, with the exception of the services “quality control relating to computer software; debugging computer software for others”. On the appeals brought by both parties, the First Board of Appeal of EUIPO upheld the appeal brought by the party seeking a declaration of invalidity as regards those remaining services and dismissed the appeal brought by the proprietor of the contested mark, declaring the mark papyros by Modus invalid in its entirety.

– The applicant (Modus AE) relied on a single plea alleging infringement of Article 60(1)(a) in conjunction with Article 8(1)(b) of Regulation 2017/1001, arguing in essence that there was no likelihood of confusion between the marks at issue, since the goods and services covered by the contested mark (software) and the goods covered by the earlier mark (computer hardware) are of a different nature and are not similar to one another — which, in the applicant’s view, ruled out one of the cumulative conditions for the application of that provision.– The Court held that it lacked jurisdiction to issue directions to EUIPO requiring it to maintain the registration of the contested mark (the applicant’s second head of claim) and rejected that claim on that ground.

– As regards the comparison of the goods and services, the Court confirmed that the goods in Class 9 covered by the contested mark are similar to an average degree to the Class 9 goods covered by the earlier mark (complementarity, overlapping consumers and distribution channels), and that the Class 42 services are similar at least to a low degree, since numerous undertakings offer end-to-end IT solutions comprising both hardware and software services; the Court rejected the applicant’s argument based on the differing nature of “software” and “hardware”.

– As regards the comparison of the signs, the Court confirmed that the word element “papyros” is the dominant element of the contested mark and has an average distinctive character, as does the element “by Modus”, which nonetheless plays only a secondary role owing to its size and position; the figurative element (a stylised papyrus scroll) is not dominant.

– The Court confirmed an average degree of visual similarity (the element “papyros” being almost identical to the earlier mark PAPYRUS, differing only in the letters “o”/ “u”), a high degree of phonetic similarity (the element “by Modus” is unlikely to be pronounced by a significant part of the public given its secondary visual role), and a high degree of conceptual similarity (both marks refer to the papyrus plant or writing material, the element “by Modus” merely indicating the undertaking).

– The Court confirmed an average, inherent distinctive character of the earlier mark PAPYRUS, rejecting the argument that it was widely used on the market, since the applicant had not demonstrated the actual presence of that element on the market (as opposed to trade mark registers).

– In its global assessment, the Court confirmed that, even for a public with a heightened level of attention (professionals), given the almost identical reproduction of the earlier mark within the contested mark and the high phonetic and conceptual similarity, there is a likelihood of confusion, which the applicant did not rebut by evidence of peaceful coexistence of the marks on the market.

– The Court dismissed the action brought by Modus AE in its entirety, upholding the declaration of invalidity of the mark papyros by Modus for all the goods and services it covered, and ordered the applicant to bear the intervener’s costs. The case was won by ISIS Papyrus Europe AG.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0608

 

Judgment – 09/09/2026 – Nutristar SpA v. EUIPO, Case T‑574/25

– The case concerned proceedings for revocation of the EU figurative mark

registered for goods and services in Classes 5, 9, 31, 42 and 44, including zootechnical integrators and animal feed in Classes 5 and 31. The application for revocation was based on Article 58(1)(a) of Regulation 2017/1001, on the ground that the mark had allegedly not been put to genuine use for a continuous period of five years.

– The Cancellation Division partially upheld the application, revoking the mark for all the goods and services in Classes 5, 9, 42 and 44 and part of the goods in Class 31, while maintaining the registration for the remaining Class 31 goods intended for livestock feeding. Following appeals by both parties, the First Board of Appeal of EUIPO dismissed the appeal brought by the proprietor of the mark (Nutristar SpA) and upheld the cross-appeal of the applicants for revocation, revoking the mark in its entirety, including for the remaining Class 31 goods.

– The applicant relied on a single plea alleging infringement of Article 58(1)(a) of Regulation 2017/1001, comprising several complaints, including that the Board of Appeal had disregarded part of the evidence submitted and had incorrectly characterised the use of the mark as merely that of a business name rather than as a trade mark.

– The Court recalled that genuine use of a trade mark means use in accordance with its essential function of indicating the origin of the goods or services, and that proof of such use must be based on solid and objective evidence rather than probabilities; it is not necessary for each individual item of evidence to relate to the place, time, nature and extent of use – what matters is an overall assessment of all the evidence taken together.

– The Court upheld the applicant’s first complaint, finding that it was not apparent from the reasoning of the contested decision that the Board of Appeal had carried out an overall assessment of all 37 annexes submitted by the applicant, since the decision referred to only some of them, disregarding 13 documents (Annexes 1 to 8 and 11 to 13).

– The Court recalled that a company’s business name may constitute genuine trade mark use where it establishes a link between the sign and the goods placed on the market, including by affixing the sign directly to invoices, technical data sheets, price lists and catalogues alongside the names of specific product lines – which, contrary to the Board of Appeal’s finding, was demonstrated in the present case by numerous items of evidence submitted by the applicant, including invoices relating to specific products (e.g. Modular Oriente, Floga, Ferment XP, Atpure Evo) falling within Classes 5 and 31.

– The Court found that the Board of Appeal had wrongly considered the applicant’s arguments on the classification of individual product lines to be unclear, even though the applicant had explained in detail which goods belonged to Classes 5 or 31, supporting this with invoices and technical data sheets.

– The Court upheld the applicant’s single plea and annulled the contested decision in so far as it concerned the goods in Classes 5 and 31, without it being necessary to examine the other specific complaints.

– The Court upheld the action brought by Nutristar SpA and annulled the decision of the First Board of Appeal of EUIPO as regards the goods in Classes 5 and 31, ordering EUIPO to bear the costs of the proceedings. The case was won by Nutristar SpA.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0574

 

Judgment – Almaviva v. EUIPO, Cases T-495/25, T-496/25 i T-497/25

– The case concerned three parallel sets of invalidity proceedings against the EU figurative marks MOOVA AlmavivA Group (registered for goods and services in Classes 9, 41 and 42, including navigation software, transport-management software and educational services), brought by Moovit App Global Ltd on the basis of the earlier EU word mark MOOVIT, registered for goods and services in Classes 9 and 42 relating to navigation and public transport. The applications relied on Article 60(1)(a) in conjunction with Article 8(1)(b) of Regulation 2017/1001, concerning the likelihood of confusion. The contested registrations (challenged respectively by decisions of the Fifth Board of Appeal in Cases R 1891/2024-5, R 1892/2024-5 and R 1893/2024-5) differ only slightly in the colour scheme of the MOOVA graphic, which had no bearing on the legal assessment, identical in all three cases.

Earlier Mark	Contested Mark
MOOVIT (Owner: Moovit App Global LtD)	(Owner: Almaviva – The Italian Innovation SpA)

– The Cancellation Division upheld all three applications for a declaration of invalidity in their entirety. The Fifth Board of Appeal of EUIPO dismissed the appeals brought by Almaviva – The Italian Innovation SpA, confirming a likelihood of confusion between the earlier mark and the contested marks for all the goods and services covered, with the exception of the services in Class 41.

– The applicant raised a plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001, disputing the existence of a likelihood of confusion between the marks at issue. The applicant argued that the goods and services covered by the marks at issue and those covered by the earlier marks are different in nature and are not similar to one another. According to the applicant, this precluded the fulfilment of one of the cumulative conditions for the application of that provision, namely the requirement of similarity between the goods and services.

– The Court confirmed that the Board of Appeal was correct to focus its assessment on the Spanish- and French-speaking part of the relevant public, which suffices to establish a relative ground for refusal under Article 8(1)(b); the level of attention of that public was average or above average depending on the goods and services.

– As regards the comparison of the goods and services, the Court confirmed that the goods in Class 9 were identical or similar to a high degree, and the services in Class 42 identical or similar to an average degree.

– On the comparison of the signs, the Court held that the word element “moov(i)a” is visually dominant in the contested mark, but that the element “almaviva group” – although secondary owing to its size and position – is not negligible, since it clearly indicates the commercial origin of the goods and services and had to be taken into account in the global assessment.

– Contrary to the Board of Appeal, the Court found that the relevant public would break down the earlier mark MOOVIT into the elements “moov” and “it”, understood as the English command “move it”, given the widespread knowledge of basic English vocabulary in the electronics and computing sector and the lexical proximity of “move” to the Spanish “mover” and French “mouvoir”.

– Consequently, the Court held that the earlier mark MOOVIT has a weak (rather than average, as found by the Board of Appeal) inherent distinctive character, since the element “moov” is evocative of goods and services relating to mobility.

– As regards the visual comparison, the Court found – contrary to the Board of Appeal – that the signs are similar only to a low degree, owing to their different graphic representation, different endings (“it”/“a”) and the additional element “almaviva group” in the contested mark. It confirmed an average degree of phonetic similarity (common element “moov”) and found the signs conceptually dissimilar, since the earlier mark conveys a meaning (“move it”) while the contested mark has none.

– In its global assessment, the Court held that the low degree of visual similarity and the conceptual differences offset the average phonetic similarity, and that, given the weak distinctive character of the earlier mark and the heightened level of attention of the public for the Class 42 services, no likelihood of confusion could be found, despite the identity or similarity of the goods and services.

– The Court upheld all three actions brought by Almaviva – The Italian Innovation SpA, annulled the decisions of the Fifth Board of Appeal of EUIPO in so far as they found a likelihood of confusion and, exercising its power to alter those decisions, rejected the applications for a declaration of invalidity filed by Moovit App Global Ltd in all three cases (T-495/25, T-496/25 and T-497/25), ordering EUIPO to bear the costs of the proceedings before the Court and before the Board of Appeal. The cases were won by Almaviva – The Italian Innovation SpA.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0495

https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0496

https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0497

 

Judgment – 09/09/2026 – CFL Australia v. EUIPO, Case T-420/25

– The case concerned opposition proceedings against the international registration designating the European Union of the word mark GOTCHA for goods and services in Classes 30, 32 and 43 (including teas, coffees, non-alcoholic beverages, and catering and café services). The opposition was based on the earlier EU word mark GONG CHA, registered for goods and services in Classes 30, 32, 35 and 43, and relied on the relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001.

Earlier Mark	Contested Mark
GONG CHA (Owner: Gong cha Global Ltd)	GOTCHA (Owner: CFL Australia Pty Ltd)

– The Opposition Division rejected the opposition in its entirety. The Second Board of Appeal of EUIPO upheld the appeal brought by Gong cha Global Ltd, finding a likelihood of confusion on the part of the Polish-speaking part of the relevant public, pointing to the identity or high similarity of the goods and services, an average degree of visual similarity, and a high degree of phonetic similarity between the signs.

– The applicant (CFL Australia Pty Ltd) relied on five pleas, reclassified by the Court into two pleas: infringement of Article 94(1) of Regulation 2017/1001 and Article 27(4) of Delegated Regulation 2018/625 (admission of late-filed evidence without sufficient reasoning) and infringement of Article 8(1)(b) of Regulation 2017/1001 (risk of confusion between disputed marks).

– As regards the first plea, the Court found it ineffective, since the Board of Appeal based the contested decision solely on the inherent distinctiveness of the earlier mark, without relying on the late-filed evidence relating to reputation and enhanced distinctiveness.

– On the definition of the relevant public, the Court confirmed that the Board of Appeal was right to focus on Polish-speaking consumers of the Union, since the existence of a relative ground for refusal in part of the EU territory suffices to refuse registration; it rejected the complaint of insufficient reasoning for that choice and the argument that the Opposition Division had previously identified the Portuguese-speaking public.

– As regards the comparison of the goods and services, the Court found the applicant’s complaint ineffective, since the Board of Appeal – endorsing the Opposition Division’s assessment – found the Class 43 services identical, which rendered unnecessary any comparison between the Class 30 goods and the Class 43 services.

– As regards the conceptual comparison of the signs, the Court rejected the argument that the English word “gotcha” (an informal contraction of “got you”) is understood by the Polish-speaking public, finding that the applicant had not shown that the term forms part of basic English vocabulary widely known across the EU, and that reliance on a single earlier Board of Appeal decision on the level of English proficiency in Poland was insufficient.

– The Court confirmed that both the mark applied for, GOTCHA, and the earlier mark, GONG CHA, are devoid of any clear and specific meaning for the relevant public, with the result that the principle of neutralisation of conceptual differences did not apply, and that the Board of Appeal had not introduced an unjustified “sufficiency” threshold in assessing neutralisation.

– In its global assessment of the likelihood of confusion, the Court confirmed that the average visual similarity, the high phonetic similarity, and the identity or high similarity of the goods and services give rise to a likelihood of confusion that is not neutralised by conceptual differences.

– The Court dismissed the action brought by CFL Australia Pty Ltd in its entirety, upholding the decision of the Board of Appeal of EUIPO refusing protection to the mark GOTCHA in the EU territory, ordering the applicant to bear the intervener’s costs and EUIPO to bear its own costs. The case was won by Gong cha Global Ltd.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0420

 

Judgment – 09/09/2026 – NEAM v. EUIPO, Case T‑351/25

– The case concerned opposition proceedings against the application for the EU word mark NEA for venture-capital investment services in Class 36. The opposition was based on the earlier EU figurative mark NEAM registered for financial and monetary affairs in Class 36, and relied on Article 8(1)(b) of Regulation 2017/1001.

Earlier Mark	Contested Mark
(Owner: Nord Est Asset Management SA)	NEA   (Owner: New Enterprise Associates, Inc.)

– At the request of the applicant for registration (New Enterprise Associates, Inc.), EUIPO invited the opponent (Nord Est Asset Management SA) to furnish proof of genuine use of the earlier mark under Article 47(2) of Regulation 2017/1001. The Opposition Division rejected the opposition on the ground that genuine use of the earlier mark had not been shown, and the Fifth Board of Appeal of EUIPO upheld that decision, finding that the evidence submitted showed only use of the sign NEAM as a company name, not as a trade mark.

– The applicant raised a single plea alleging infringement of Article 47(2) of Regulation 2017/1001, in conjunction with Article 10(2) of Delegated Regulation 2018/625, arguing that the Board of Appeal had incorrectly found that the applicant had failed to establish genuine use of the earlier trade mark within the territory of the European Union in respect of the services for which it had been registered.– The Court recalled that use of a company name may constitute genuine trade mark use only where the public perceives it as indicating the commercial origin of specific goods or services – this requires establishing a link between the sign and the goods/services offered, not merely identifying the company itself.

– Examining the individual items of evidence (including an internal company presentation, website screenshots, financial statements, distribution agreements, tax returns, press materials and information on awards), the Court confirmed the Board of Appeal’s findings that none of the documents showed financial services being offered on the market under the sign NEAM in a manner establishing a link between that sign and specific services – in many of the documents, the financial services were in fact offered under the separate mark NEF, managed by the applicant.

– The Court rejected the argument that the earlier mark functioned as an “umbrella mark” covering the NEF brand, pointing to the absence of evidence showing that the services were identified and offered on the market under the sign NEAM.

– The Court recalled that the commercial success of an undertaking is irrelevant to the assessment of genuine use of a trade mark, and that such an assessment cannot be based on probabilities or presumptions but requires solid and objective evidence.

– The Court dismissed the action brought by Nord Est Asset Management SA in its entirety, upholding the decision of the Board of Appeal of EUIPO rejecting the opposition for failure to demonstrate genuine use of the earlier mark NEAM, and ordered the applicant to bear the intervener’s costs. The case was won by New Enterprise Associates, Inc.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62025TJ0351

 

Judgment – 09/09/2026 – Eurest Colectividades v. EUIPO, Case T‑642/24

– The case concerned opposition proceedings against the application for the EU figurative mark  FISH REVOLUTION for goods in Class 29 (meat, fish, poultry, game and processed foodstuffs). The opposition was based on the earlier EU figurative mark CANNED TUNA REVOLUTION registered for goods in Class 29 (fish, seafood, fish products), and relied on the relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001.

Earlier Mark	Contested Mark
(Owner: Fish Tales Holding BV)	(Owner: Eurest Colectividades, SL)

– The Opposition Division partially upheld the opposition. The Second Board of Appeal of EUIPO dismissed the appeal brought by the applicant (Eurest Colectividades, SL), finding – at least on the part of the Greek- or Hungarian-speaking part of the relevant public – a likelihood of confusion for all the contested goods.

– The applicant relied on three pleas: infringement of Article 8(1)(b) of Regulation 2017/1001 (risk of confusion between disputed marks), breach of the principles of good administration and equal treatment, and breach of the rights of the defence.

– As regards the first plea, the Court confirmed that the common word element “revolution” is distinctive for the Greek- and Hungarian-speaking part of the public, since it does not form part of basic English vocabulary (level B2) and has no phonetically similar equivalent in those languages; it rejected the argument that the element is commonly used on the food market and is laudatory.

– The Court confirmed that the figurative elements of both marks are not negligible, but that the word element “revolution” – owing to its length and identical final position in both marks – accounts for at least a low degree of visual similarity and an average degree of phonetic similarity; as regards the conceptual comparison, the Court confirmed a low degree of similarity for fish-related goods and a high degree for the remaining goods, while noting an inconsistency in the reasoning of the contested decision that had no bearing on its legality.

– The Court confirmed an average, inherent distinctive character of the earlier mark as a whole, despite the presence of the descriptive element “tuna” and the figurative elements depicting fish.

– In its global assessment, the Court confirmed that the identity or similarity of the goods, combined with the similarity of the signs arising from the common distinctive element “revolution”, gives rise to a likelihood of confusion for all the contested goods, including those related to fish; the applicant’s arguments regarding an alleged restriction on freedom of competition and on the promotion of the “fish revolution” educational project were rejected as unrelated to the prospective assessment of the likelihood of confusion.

– The Court rejected the second plea (breach of the principles of equal treatment and good administration), noting that earlier registrations of other marks containing the word “revolution” were not the subject of opposition proceedings based on the intervener’s earlier mark and could not call into question the legality of the contested decision; it likewise rejected the third plea concerning breach of the rights of the defence in connection with the use of the expression “at least” regarding the territorial scope of the likelihood of confusion found.

– The Court dismissed the action brought by Eurest Colectividades, SL in its entirety, upholding the decision of the Board of Appeal of EUIPO, and ordered the applicant to bear the costs incurred by EUIPO and the intervener. The case was won by Fish Tales Holding BV.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62024TJ0642

 

Judgment – 09/09/2026 – Unipreus v. EUIPO, Case T‑551/24

– The case concerned opposition proceedings against the application for the EU figurative mark wallapop for services in Classes 35, 38 and 42. The opposition was based on three earlier Spanish figurative marks WALA W registered for goods in Class 35, and relied on Article 8(1)(b) of Regulation 207/2009.

Earlier Marks	Contested Mark
(Owner: Unipreus SL)	(Owner: Wallapop, SL)

– The case had a long procedural history: the Opposition Division partially upheld the opposition; the Fifth Board of Appeal of EUIPO upheld the appeal of the applicant for registration (Wallapop, SL) and dismissed the opponent’s appeal (Unipreus SL); by judgment of 3 October 2018 in Case T-186/17, the Court partially annulled that decision, finding an erroneous assessment of the dissimilarity of the services at issue; after the Court of Justice’s dismissal of the appeal against that judgment, the case was remitted to the Board of Appeal for a fresh decision.

– In the meantime, the registrations of all three earlier WALA W marks had expired owing to their non-renewal by the applicant, as ultimately confirmed by Spanish judicial decisions of 25 October 2023 and 7 March 2024. The First Board of Appeal of EUIPO, to which the case had been reallocated, dismissed the appeal and the opposition, holding that the opposition had become devoid of purpose given the loss of validity of the earlier marks during the proceedings.

– The intervener (Wallapop, SL) raised a plea of inadmissibility based on the principle of venire contra factum proprium, pointing to an alleged contradiction between the applicant’s request to stay the proceedings and its later claim that the 2018 judgment had to be complied with. The Court rejected that plea, finding that the applicant had consistently requested either a stay of proceedings or compliance with the judgment, leaving the choice to EUIPO.

– The applicant relied on two pleas: infringement of Article 121 of the Rules of Procedure of the General Court and of the principle of legal certainty (failure to comply with the binding nature of the 2018 judgment), and infringement of Article 55 of Regulation 207/2009 concerning the effects of revocation of a mark. The applicant argued that the Board of Appeal had incorrectly assessed the legal effects of the earlier judgment and of the revocation of the trade mark. According to the applicant, this resulted in an infringement of the principle of res judicata and an incorrect determination of the scope of protection afforded to the marks at issue.

– The Court explained that the annulment of the Fifth Board of Appeal’s decision by the 2018 judgment, without alteration, merely referred the case back for a fresh decision and did not determine the existence of a likelihood of confusion, since the Court had not, at that time, carried out a global assessment of that likelihood – it had found only that the services were similar.

– Relying on the judgment of the Court of Justice of 5 February 2026 in EUIPO v Nowhere (C-337/22 P), the Court confirmed that the existence of the earlier mark must be assessed not only as at the date of filing of the contested mark but also as at the date of the final decision on the opposition – otherwise the essential function of the earlier mark (indicating commercial origin) could not be jeopardised by the registration of the later mark.

– Consequently, the Court held that the Board of Appeal had correctly taken into account the expiry of the registrations of the earlier WALA W marks, as established by final national judicial decisions, and had rightly found the opposition devoid of purpose, without infringing the res judicata effect of the 2018 judgment or the principle of legal certainty.

– The Court rejected the argument based on Article 55 of Regulation 207/2009, noting that that provision applies only to EU trade marks, whereas the earlier WALA W marks are national (Spanish) marks.

– The Court dismissed the action brought by Unipreus SL in its entirety and ordered it to pay the costs. The case was won by Wallapop, SL.

Case details: https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62024TJ0551

 

Judgment – 09/09/2026 – Cosmetika v. EUIPO, Case T‑244/24

– The case concerned opposition proceedings against the application for the EU figurative mark LOTO DL SVR for goods in Class 3 (perfumes, cosmetics, soaps, shampoos and other body-care products). The opposition was based on the earlier EU word mark SVR, registered for cosmetics, shampoos, hair lotions, anti-perspirants and soap, and relied on the relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001.

Earlier Mark	Contested Mark
SVR (Owner: Laboratoires Svr)	(Owner: Cosmetika S.A.S.)

– The Opposition Division partially upheld the opposition. The Fifth Board of Appeal of EUIPO dismissed the appeal brought by the applicant (Cosmetika S.A.S.), finding a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.

– The applicant relied on a plea alleging infringement of Article 95 of Regulation 2017/1001 read together with Article 27(2) and (4) of Delegated Regulation 2018/625, and breach of the right to be heard (Article 94(1) of Regulation 2017/1001 in conjunction with Article 41(2) of the Charter of Fundamental Rights), and, in the alternative, a plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001. The applicant argued that the Board of Appeal had incorrectly disregarded or admitted evidence submitted during the proceedings and had infringed its procedural rights. It further argued that the Board of Appeal had erred in finding that there was a likelihood of confusion between the marks at issue, which, according to the applicant, resulted in an incorrect application of the provisions forming the legal basis for the refusal of registration.

– As regards the first plea, the Court confirmed that the Board of Appeal was entitled to examine the perception of the signs by the non-Spanish-speaking, including Italian-speaking, public, even though the Opposition Division had limited its assessment to the Spanish-speaking public – given the unitary character of the EU trade mark, it suffices to demonstrate a likelihood of confusion in part of the Union, and the applicant itself had raised arguments concerning the non-Spanish-speaking public before the Board of Appeal.

– The Court also held that the intervener (Laboratoires Svr) did not need to file a cross-appeal in order to rely on the perception of the signs by the Italian-speaking public, since that argument supplemented rather than altered the subject matter of the proceedings, and the new evidence met the requirements of Article 27(4) of Delegated Regulation 2018/625, as it supplemented evidence already filed and was, on the face of it, relevant to the outcome.

– As regards the alleged breach of the right to be heard, the Court found that the applicant had the opportunity to present its position in a second round of pleadings before the Board of Appeal, and that new evidence filed only before the Court (market surveys – Annexes A.5 and A.6) was inadmissible, since it post-dated the contested decision and could have been submitted earlier.

– On the comparison of the goods, the Court confirmed that “soap products” are identical to “cosmetics for skin care”, and that shampoos and other hair-care products are similar to an average degree.

– As regards the comparison of the signs, the Court confirmed that the element “svr” – common to both marks – has an average distinctive character and is the dominant element of the contested mark owing to its length (three syllables) and final position, whereas “loto” (the Italian word for “lotus”) has a weak distinctive character as descriptive of an ingredient, and the connecting element “dl” is devoid of distinctive character.

– The Court confirmed an average degree of visual and phonetic similarity (owing to the fully reproduced element “svr”) and found that a conceptual comparison was not possible, since neither mark as a whole conveys a clear meaning to the Italian-speaking public – the Court rejected the applicant’s argument that the contested mark would be read as “loto del sur” (Spanish for “lotus of the south”).

– In its global assessment, the Court confirmed that the element “svr” retains an independent and dominant distinctive role within the contested mark, which may lead the relevant public to believe that the contested mark is a sub-brand of the product line of the earlier mark SVR, giving rise to a likelihood of confusion.

– The Court dismissed the action brought by Cosmetika S.A.S. in its entirety, upholding the decision of the Board of Appeal of EUIPO, and ordered each party to bear its own costs (no hearing having been held). The case was won by Laboratoires Svr.

Case details:  https://eur-lex.europa.eu/legal-content/PL/TXT/?uri=CELEX:62024TJ0244