Information;Judgment — ECLI:EU:T:2026:30
Date: 2026-01-21
Language of the case: English
Court formation: First Chamber
Procedure: Action for annulment

JUDGMENT OF THE GENERAL COURT (First Chamber) 21 January 2026 (*) ( EU trade mark – Opposition proceedings – Application for the EU figurative mark Elton – Earlier national word mark ELON – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 ) In Case T‑561/24, Universal Brand Group Pty Ltd, established in Johannesburg (South Africa), represented by W. Pors, lawyer, applicant, v European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl and V. Ruzek, acting as Agents, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Elon Group AB, established in Örebro (Sweden), represented by J. Norderyd and J. Nilsson, lawyers, THE GENERAL COURT (First Chamber), composed, at the time of the deliberations, of I. Gâlea, acting as President, T. Tóth (Rapporteur) and S.L. Kalėda, Judges, Registrar: J. Čuboň, Administrator, having regard to the written part of the procedure, further to the hearing on 21 October 2025, gives the following Judgment 1 By its action under Article 263 TFEU, the applicant, Universal Brand Group Pty Ltd, seeks the annulment and alteration of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 19 August 2024 (Case R 2553/2023‑5) (‘the contested decision’). Background to the dispute 2 On 15 June 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign: 3 The mark applied for covered, inter alia, goods in Classes 9 and 11 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, corresponding, for each of those classes, to the following description: – Class 9: ‘Software for remote control and intelligent operation of heating apparatus for dispensing hot beverages and installations for heating beverages’; – Class 11: ‘Heating apparatus for dispensing hot beverages; Installations for heating beverages; Coffee machines, electric; Coffee capsules, empty, for electric coffee machines’. 4 On 10 October 2022, the intervener, Elon Group AB, 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, inter alia, on the earlier Swedish word mark ELON, registered on 23 November 2020 under No 551 583, covering goods in, inter alia, Classes 9 and 11. 6 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). 7 On 14 November 2023, the Opposition Division upheld the opposition in part, namely for all the contested goods in Classes 9 and 11, on the basis of Article 8(1)(b) of Regulation 2017/1001, finding that there was a likelihood of confusion in respect of those goods. 8 On 21 December 2023, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision. 9 By the contested decision, the Board of Appeal dismissed the appeal. First, it noted that the relevant public was the Swedish public, composed of the public at large and professional and business customers with specific professional knowledge or expertise, whose degree of attention varied from average to high. Second, it found that the goods in question were either identical or similar. Third, finding that the signs at issue had a high degree of visual similarity and an at least above average degree of phonetic similarity and that the earlier trade mark had an average degree of inherent distinctiveness, it held that the conceptual differences between the signs at issue were not sufficient to exclude the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, in respect of the goods referred to in paragraph 3 above. Forms of order sought 10 The applicant claims that the Court should: – annul the contested decision; – reject the opposition in its entirety; – order EUIPO and the intervener to pay the costs. 11 EUIPO contends that the Court should: – dismiss the action; – order the applicant to pay the costs in the event that a hearing is convened. 12 The intervener contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law Admissibility of evidence submitted for the first time before the Court 13 EUIPO claims that Annexes A.5 to A.15 to the application are inadmissible in so far as they were produced for the first time before the Court. 14 Those annexes consist of evidence seeking to establish the phonetic and conceptual difference between the signs at issue. In that regard, the applicant produces, inter alia, a declaration by Professor Andersson concerning the pronunciation of those signs in Swedish, together with additional information (Annexes A.5 and A.6), two articles from a Swedish newspaper on Elon Musk (Annex A.7) and on Elton John’s tour of Sweden (Annex A.10), the results from searches on the Swedish pages of the Google search engine for ‘Elon Musk’ and ‘Zlatan Ibrahimović’ (Annexes A.8 and A.9), a screenshot of the song rankings on the Apple Music online music website in Sweden in 2022 (Annex A.11), pages from the amazon.se and bokus websites relating to the Swedish version of Elton John’s autobiography (Annexes A.12 and A.13), information from the Swedish tax authorities on the frequency of certain male names in Sweden (Annex A.14), and a Swedish article on the launch of Brad Pitt’s campaign for DeLonghi in 2021 (Annex A.15). 15 It is apparent from EUIPO’s file that that evidence had not been produced during the administrative proceedings. By contrast, the applicant claimed at the hearing that the evidence in question could not be regarded as new since it merely supplemented the evidence already produced before the Board of Appeal. 16 In that regard, it should be recalled that, according to the case-law, 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). In addition, the applicant cannot be recognised as having the right to submit documents for the first time before the Court on the sole ground that they illustrate well-known facts, which, moreover, are not alleged to have been put forward in the contested decision (see judgment of 21 November 2018, PepsiCo v EUIPO – Intersnack Group (Exxtra Deep), T‑82/17, EU:T:2018:814, paragraph 19 and the case-law cited). 17 Therefore, it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, the documents produced by the applicant for the first time before the Court must be excluded and there is no need to assess their probative value (see, to that effect, judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited). 18 It follows from the foregoing that Annexes A.5 to A.15 to the application are inadmissible. The single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 19 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 particular, it calls into question the Board of Appeal’s findings relating to the comparison of the signs at issue and the global assessment of the likelihood of confusion. 20 EUIPO and the intervener dispute the applicant’s arguments. 21 In accordance with Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an 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 of Sweden, the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 22 The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited). 23 For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, 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 (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited). 24 It is in the light of those considerations that it is necessary to examine whether the Board of Appeal correctly held that there was a likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation 2017/1001. The relevant public, the comparison of the goods in question and the inherent distinctiveness of the earlier mark 25 The Board of Appeal found that the relevant public consisted partly of the Swedish public at large and partly of Swedish professional and business customers. In addition, it noted that the goods covered by the marks at issue were either identical or similar. 26 Those findings are not disputed. 27 Similarly, the parties do not dispute the Board of Appeal’s finding that the earlier mark has an average degree of inherent distinctiveness. The comparison of the signs 28 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 engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited). 29 In the present case, before addressing the question of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the assessment of the distinctive elements of the mark applied for. – The distinctive elements of the mark applied for 30 The Board of Appeal found, in paragraphs 42 and 43 of the contested decision, that the word element ‘elton’ was the most distinctive element of the mark applied for since the slight stylisation of that element would be perceived as merely ornamental. 31 The applicant claims that, in view of the specific font used in the present case, the Board of Appeal was incorrect to find that the stylisation of the word element of the mark applied for was merely ornamental. 32 EUIPO and the intervener dispute the applicant’s arguments. 33 In that regard, it should be noted that a graphic style, even if it has a certain particularity, cannot be considered to be a distinctive figurative element unless it is capable of making an immediate and lasting impression on the relevant public allowing it to distinguish the goods of the applicant for the figurative mark from those of other suppliers on the market. That is particularly not the case if the graphic style used remains largely common in the eyes of the relevant public or if the figurative element only has the function of highlighting the information conveyed by the word elements (see judgments of 9 April 2019, Zitro IP v EUIPO (PICK & WIN MULTISLOT), T‑277/18, not published, EU:T:2019:230, paragraph 38 and the case-law cited; of 3 May 2023, Chambre de commerce et d’industrie territoriale de la Marne en Champagne v EUIPO – Ambrosetti Group (TEHA), T‑60/22, not published, EU:T:2023:236, paragraph 39 and the case-law cited; and of 11 October 2023, Biogena v EUIPO (THE GOOD GUMS), T‑87/23, not published, EU:T:2023:617, paragraph 38 and the case-law cited). 34 Since, in the present case, the slight stylisation of the mark applied for is not likely to divert the relevant public’s attention away from the word element ‘elton’, the Board of Appeal was correct to find, first, that that stylisation was perceived as merely ornamental and, second, that the word element was the most distinctive element of that mark. – The visual similarity 35 In paragraphs 45 to 48 of the contested decision, the Board of Appeal found, first, that the signs at issue were similar since they coincided in the sequence of letters ‘el’ and ‘on’ present in the same order in both signs and, second, that they differed in the additional letter ‘t’ in the middle of the sign applied for and in the slight stylisation of that sign, which would be perceived as merely ornamental. In addition, it concurred with the Opposition Division’s observation that the intermediate position of the additional letter ‘t’ in the sign applied for was less noticeable than the beginnings and endings of those very similar signs. Overall, the Board of Appeal endorsed the Opposition Division’s findings that the signs at issue were visually very similar. 36 The applicant claims that the differences between the signs at issue, namely the letter ‘t’ in the middle of the mark applied for and the distinctive stylisation of that mark, create a different overall visual impression. It also notes that, since the signs at issue are short, they will be perceived as a whole and the relevant public will perceive their differences more easily. 37 EUIPO and the intervener dispute the applicant’s arguments. 38 In that regard, it should be noted that it does indeed follow from the case-law that the shorter the signs, the easier it is for the relevant public clearly to perceive the differences between them (see, to that effect, judgment of 20 February 2018, Deutsche Post v EUIPO – bpost (BEPOST), T‑118/16, not published, EU:T:2018:86, paragraph 65 and the case-law cited). 39 However, according to settled case-law, where a figurative mark containing word elements is visually compared with a word mark, the marks are considered to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lower case or upper case, or in colour (see judgment of 11 October 2023, Dr. Rudolf Liebe Nachfolger v EUIPO – Bit Beauty (ayuna LESS IS BEAUTY), T‑490/22, not published, EU:T:2023:616, paragraph 51 and the case-law cited). 40 In the present case, it must be stated that the word elements ‘elon’ and ‘elton’ containing the sequence of letters ‘el’ and ‘on’ in the same order are visually almost identical, the only difference being the presence of the letter ‘t’ in the middle of the mark applied for. In addition, as noted in paragraph 34 above, the slight stylisation of the word element of the mark applied for performs a purely decorative function and therefore does not divert the attention of the relevant public. 41 Consequently, the Board of Appeal did not make an error of assessment in finding that the signs at issue had a high degree of visual similarity. – The phonetic similarity 42 The Board of Appeal found, in paragraphs 49 to 63 of the contested decision, that the signs at issue had an at least above average degree of phonetic similarity, given that they consisted of two syllables which had a similar syllable structure and followed a similar rhythmic pattern. It considered, in essence, that, despite the differences in length of the vowels ‘e’ and ‘o’ and the presence of the consonant ‘t’ in the middle of the contested mark, the overall pronunciation of the signs at issue in Swedish was similar. 43 The applicant submits that there is no phonetic similarity between the signs at issue. In particular, it alleges that the Board of Appeal failed to take into account the separation of the two signs into syllables and the difference in the pronunciation of the first letter. 44 EUIPO and the intervener dispute the applicant’s arguments. 45 It should be noted that it is apparent from paragraphs 58, 59, 61 and 63 of the contested decision that the Board of Appeal took into account the separation of the signs at issue into syllables and the differences in the pronunciation of the vowels. As the Board of Appeal pointed out, although the first letter ‘e’ is elongated in the earlier mark, whereas it is short in the mark applied for, it creates a similar vowel sound at the beginning of the signs at issue. Likewise, despite the fact that the letter ‘o’ is pronounced as a long, rounded vowel in the earlier mark, whereas it is shorter and less emphasised in the mark applied for, the penultimate position of that letter in both signs contributes to a similar overall pronunciation. As regards the letters ‘l’ and ‘n’, they are pronounced in the same way in those signs. 46 Consequently, the applicant has not succeeded in calling into question the Board of Appeal’s finding that the phonetic differences between the marks at issue are not sufficiently significant to outweigh their similarities, or the Board of Appeal’s finding that those marks have, in essence, an above average degree of phonetic similarity. – The conceptual similarity 47 In paragraphs 64 to 77 of the contested decision, the Board of Appeal found, in essence, that, although the signs at issue could be perceived as first names, that did not decisively influence their comparison. According to the Board of Appeal, the applicant had not successfully demonstrated that the relevant public associated those first names with the businessman Elon Musk and with the singer Elton John respectively. Therefore, given the nature of the goods in question, it cannot be argued that the marks at issue convey such a clear and specific meaning that they would be understood by a non-negligible part of the relevant public as references to those two individuals. 48 The applicant complains that the Board of Appeal wrongly inferred from the judgment of 1 December 2021, Inditex v EUIPO – Ffauf Italia (ZARA) (T‑467/20, not published, EU:T:2021:842), that the comparison between the signs at issue was not decisively influenced by the fact that those signs referred to first names. The same case-law in fact makes a conceptual comparison possible in the particular circumstances of the present case, since the two first names at issue are immediately perceived as referring to celebrities. The applicant adds that the judgment of 30 June 2021, Wolf Oil v EUIPO – Rolf Lubricants (ROLF) (T‑531/20, not published, EU:T:2021:406), which was cited by the Board of Appeal and explicitly leaves open the possibility of carrying out a conceptual comparison of signs containing surnames or first names, applies in the present case. 49 The applicant claims that, given the fame of Elon Musk and Elton John, it is implausible that the average Swedish consumer would not make a link to their celebrity in respect of at least one of the signs at issue. It submits that the average consumer is very used to making such links between the goods in question and celebrities. It points out, in that regard, that it is common knowledge that George Clooney has become practically synonymous with the Nespresso coffee machine. 50 EUIPO and the intervener dispute the applicant’s arguments. 51 In that regard, it must be noted that it is indeed true that the case-law is not entirely settled on how to carry out a conceptual comparison in the case of signs referring to surnames or first names of persons. According to one line of case-law, the fact that marks contain surnames or first names leaves open the possibility of a conceptual comparison, but does not necessarily imply that there is a conceptual similarity, which can become apparent only from an examination of each individual case. According to a second line of case-law, a conceptual comparison between trade marks composed of surnames or first names of persons is in principle impossible and neutral, unless there are special circumstances which make such a comparison possible, such as, for example, the celebrity of the person concerned or the semantic content of a name (see judgment of 30 June 2021, ROLF, T‑531/20, not published, EU:T:2021:406, paragraph 63 and the case-law cited). 52 In paragraphs 76 and 77 of the contested decision, the Board of Appeal did indeed refer to one of the two lines of case-law cited in paragraph 51 above. Nevertheless, its finding that the comparison between the signs at issue is not decisively influenced by the fact that those signs may be perceived as referring to different first names must not be read as the adoption of a position in favour of one of the two lines of case-law. Moreover, any such position would have no effect on the Board of Appeal’s finding that a non-negligible part of the relevant public would perceive the signs at issue as ordinary first names, or even as fanciful terms, and not as referring to celebrities. 53 As regards the applicant’s line of argument that the signs at issue are directly associated with the celebrities Elon Musk and Elton John, it must be stated that, as the Board of Appeal correctly observed, although the evidence produced before it establishes the celebrity of Elon Musk and Elton John, that evidence is not sufficient, having regard in particular to the nature of the goods in question, to demonstrate that the relevant public will associate the first names Elon and Elton specifically with those two celebrities. 54 With regard to the applicant’s arguments concerning George Clooney, even though the public at large in general may make a link between the name of that celebrity and Nespresso coffee machines, that circumstance is not capable of demonstrating the existence of such a link between the signs at issue and the goods in question. In that regard, it must be recalled that, as the applicant has also noted, George Clooney’s name has become associated with Nespresso coffee machines following many advertising campaigns. The applicant has neither claimed nor established that any such advertising campaigns were conducted in relation to the signs at issue. 55 Therefore, the applicant has not succeeded in calling into question the Board of Appeal’s finding that it is likely that a non-negligible part of the relevant public will perceive the marks at issue as ordinary first names or even as fanciful terms. 56 Accordingly, the applicant’s arguments concerning the conceptual comparison of the signs at issue must be rejected. The likelihood of confusion 57 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), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74). 58 The Board of Appeal found, in paragraphs 83 to 88 of the contested decision, that, in view of the identity or similarity between the goods in question, of the high degree of visual similarity and the at least above average degree of phonetic similarity between the signs at issue and of the average degree of inherent distinctiveness of the earlier mark, the conceptual differences between those signs were insufficient to rule out the existence of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. 59 The applicant alleges, in essence, that the Board of Appeal assessed the likelihood of confusion wrongly by taking as a basis an incorrect analysis of the visual, phonetic and conceptual comparison of the signs at issue and an incorrect assessment of the level of attention of the relevant public. 60 It submits, in particular, not only that the signs at issue are conceptually different, but that that difference is such as to counteract the similarities between those signs in other respects. It alleges, in that regard, that the Board of Appeal did not act in line with the case-law, that is to say the judgments of 23 March 2006, Mülhens v OHIM (C‑206/04 P, EU:C:2006:194); of 18 December 2008, Les Éditions Albert René v OHIM (C‑16/06 P, EU:C:2008:739); of 17 September 2020, EUIPO v Messi Cuccittini (C‑449/18 P and C‑474/18 P, not published, EU:C:2020:722); of 3 March 2004, Mülhens v OHIM – Zirh International (ZIRH) (T‑355/02, EU:T:2004:62); of 27 October 2005, Éditions Albert René v OHIM – Orange (MOBILIX) (T‑336/03, EU:T:2005:379); of 15 November 2018, Haufe-Lexware v EUIPO – Le Shi Holdings (Beijing) (Leshare) (T‑546/17, not published, EU:T:2018:782); and of 16 June 2021, Smiley Miley v EUIPO – Cyrus Trademarks (MILEY CYRUS) (T‑368/20, not published, EU:T:2021:372). 61 It also submits that the level of attention of the relevant public will always be high in respect of the goods in Class 11 and that that high level of attention will make that public less likely to confuse the marks at issue. 62 EUIPO and the intervener dispute the applicant’s arguments. 63 In that regard, it is apparent from paragraphs 83 to 88 of the contested decision that the Board of Appeal, in its global assessment of the likelihood of confusion, took into account all the relevant factors, including the distinctiveness of the earlier mark, the goods covered by the marks at issue, the relevant public and its level of attention and the degree of visual, phonetic and conceptual similarity of the signs at issue. 64 In addition, as is clear from paragraphs 35 to 46 above, the Board of Appeal was correct to find that the signs at issue had a high degree of visual similarity and an at least above average degree of phonetic similarity. 65 As regards the applicant’s argument concerning counteraction, set out in paragraph 60 above, it should be noted that, according to the case-law, in a situation where at least one of the signs at issue has, from the perspective of the relevant public, a clear and specific meaning which can be grasped immediately by that public, it can be concluded that those signs create a different overall impression, despite the existence of certain elements of visual or phonetic similarity between them (see, to that effect, judgment of 4 March 2020, EUIPO v Equivalenza Manufactory, C‑328/18 P, EU:C:2020:156, paragraph 75 and the case-law cited). 66 In the present case, as is apparent from paragraph 53 above, the applicant has not succeeded in calling into question the Board of Appeal’s finding that the marks at issue did not have any such clear and specific meaning. In addition, even though, in the cases relied on by the applicant, the counteraction theory was applied in respect of names of celebrities or particular surnames, the facts and context of each of those cases were different from those of the present case, which relate to the first names Elon and Elton. Therefore, it does not follow from those cases that those first names also have so clear and specific a meaning that it counteracts the visual and phonetic similarities between the signs at issue. 67 As regards the applicant’s argument concerning the level of attention of the relevant public, it must be stated that, in paragraph 31 of the contested decision, the Board of Appeal found that that level of attention varied from average to high, and stated that the degree of attention in question varied depending on the price, sophistication or terms and conditions of the goods and services purchased. It did not thereby rule out the possibility that the degree of attention might be high in respect of certain goods. Furthermore, it is apparent from paragraph 87 of that decision that the Board of Appeal took account of that high level of attention of the relevant public when assessing the existence of a likelihood of confusion. 68 In that regard, it should be recalled that, according to settled case-law, even an extraordinary level of attention is not, in itself, capable of ruling out the existence of a likelihood of confusion. When a likelihood of confusion is created by other factors, such as the identity or high degree of similarity between the marks and the identity of the goods, the level of attention of the relevant public cannot be the only factor taken into account. A global assessment of the likelihood of confusion must be carried out in each individual case. In the context of a global assessment, the relevant public’s level of attention is only one of the various factors which have to be taken into consideration. Furthermore, even with regard to a public displaying a high level of attention, the fact remains that the average consumer only rarely has a chance to compare the various marks directly, so he or she must rely on his or her imperfect recollection of them (see judgment of 10 April 2024, Mushie & Co v EUIPO – Diana Dolls Fashions (Mushie), T‑262/23, not published, EU:T:2024:227, paragraph 77 and the case-law cited). 69 Consequently, it must be pointed out that, following a global assessment and taking account of the factors referred to above, the Board of Appeal correctly found, in paragraph 88 of the contested decision, that there was a likelihood of confusion. 70 In the light of the foregoing, the applicant’s single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 71 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. 72 Since a hearing has taken place and the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders Universal Brand Group Pty Ltd to pay the costs. Gâlea Tóth Kalėda Delivered in open court in Luxembourg on 21 January 2026. V. Di Bucci M. van der Woude Registrar President * Language of the case: English