A likelihood of confusion exists when consumers can be misled into believing that goods or services bearing the opposing trademarks originate from the same company or from economically linked companies. It is assumed that the assessment of the likelihood of confusion requires an analysis of: (i) the degree of similarity between the goods and services; (ii) the relevant public and the level of attention;  (iii) the degree of similarity between the marks; and (iv) the distinctive character of the earlier mark.  

The overall assessment of the likelihood of confusion should also take into account the case law of the CJEU, which highlights the complexity of the process and also has an impact on the possibility of a certain element of subjectivity. Although the assessment of the likelihood of confusion should be based on premises that are as objective as possible, three judgments of the CJEU dated 30 April 2025 raise doubts regarding the scope of discretion of authorities in practice. 

1. Judgment of the CJEU dated 30 April 2025 in case T-338/24 – Mobility Trader v EUIPO – Cala and Ruiz (hey car select) 

The EUIPO Opposition Division upheld the opposition based on an earlier trademark in relation to services in Classes 35 and 39, and the Board of Appeal upheld that decision. 

The CJEU dismissed the action and pointed out that there was: 

• identity or similarity of services; 

• no visual similarity; 

• high degree of phonetic similarity; 

• no conceptual similarity. 

Ultimately, the CJEU pointed out that in the present case there was a likelihood of confusion. It was relevant that the services at issue could be recommended and advertised orally, in particular on the radio, which meant that particular significance had to be attached to the phonetic similarity. 

2. Judgment of the CJEU dated 30 April 2025 in case T-241/24 – AirPlus International GmbH v EUIPO – Repsol (R+) 

The Opposition Division dismissed the opposition and the Board of Appeal dismissed the appeal. 

The CJEU dismissed the action and pointed out that there was: 

• identity or similarity of goods and services; 

• no visual similarity; 

• average degree of phonetic similarity; 

• no conceptual similarity. 

Ultimately, the CJEU pointed out that in the present case there was no likelihood of confusion. It noted that the goods and services covered by the compared marks are usually purchased on the basis of a written offer or via the Internet, which means that consumers would have the opportunity to visually familiarise themselves with the compared marks. Therefore, the CJEU agreed that in the case of financial services (Class 36), the visual similarity of the marks is particularly important, because the relevant public, when choosing a financial institution, perceives the trademarks on documents and promotional materials. 

3. Judgment of the CJEU dated 30 April 2025 in case T-298/24 – DoDo Services v EUIPO – doqo (doqo) 

The Opposition Division partially upheld the opposition, but the Board of Appeal dismissed the opposition in its entirety. 

The CJEU dismissed the action and pointed out that there was: 

• identity or similarity of services; 

• a low degree of visual similarity (in particular due to graphic differences, the colours used and the font); 

• average degree of phonetic similarity;  

• no conceptual similarity. 

Ultimately, the CJEU indicated that in the present case there was no likelihood of confusion. It pointed out that the relevant public, whose level of attention is average or high, would perceive the differences between the marks, in particular those resulting from the graphic elements. 

Summary 

Although the basic criteria for assessing the likelihood of confusion are firmly established in doctrine, much depends on the assessment of the authorities (CJEU, EUIPO) as to which aspects of the similarity of the marks, i.e. visual, phonetic or conceptual, will be decisive in a given case. In case T-338/24 (hey car select), the CJEU found a likelihood of confusion due to the high degree of phonetic similarity between the signs, despite the absence of visual and conceptual similarity. However, in cases T-241/24 (R+) and T-298/24 (doqo), the CJEU found no likelihood of confusion because, despite the average degree of phonetic similarity, the visual differences were decisive. 

The latest judgments show that EUIPO and the CJEU are increasingly focusing on the context in which a trademark is used, e.g. whether the goods/services covered by the trademark are promoted orally (radio, podcast) or exclusively in writing (documents, online offers), which affects the importance of individual aspects of the assessment of phonetic or visual similarity.