Information;Judgment — ECLI:EU:T:2021:710
Date: 2021-10-20
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Croatia

JUDGMENT OF THE GENERAL COURT (Fifth Chamber) 20 October 2021 (*) (EU trade mark – Invalidity proceedings – EU word mark TELEVEND – Earlier EU word mark TELEVES – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)) In Case T‑112/20, Intis d.o.o., established in Zagreb (Croatia), represented by T. Nagy, lawyer, applicant, v European Union Intellectual Property Office (EUIPO), represented by V. Ruzek, acting as Agent, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Televes, SA, established in Santiago de Compostela (Spain), represented by F. Peña López, lawyer, ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 12 December 2019 (Case R 1923/2019‑5), relating to invalidity proceedings between Televes and Intis, THE GENERAL COURT (Fifth Chamber), composed of D. Spielmann, President, U. Öberg (Rapporteur) and R. Mastroianni, Judges, Registrar: E. Coulon, having regard to the application lodged at the Court Registry on 20 February 2020, having regard to the response of EUIPO lodged at the Registry of the Court on 11 August 2020, having regard to the response of the intervener lodged at the Court Registry on 28 April 2021, having regard to the fact that no request for a hearing was submitted by the 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 Background to the dispute 1 On 16 June 2016, the applicant, Intis d.o.o., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)). 2 Registration as a mark was sought for the word sign TELEVEND. 3 The goods in respect of which registration was sought fall within Classes 7, 9 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description: – Class 7: ‘Vending machines’; – Class 9: ‘Computer software applications, downloadable; remote control apparatus; optical readers; card reading equipment; recorded computer programs; encoded key cards; electrical controlling devices; intercommunication apparatus; modems; monitoring apparatus, electric; data processing apparatus; transmitters of electronic signals; control panels [electricity]; printed circuit boards; computer hardware; software; electro-dynamic apparatus for the remote control of signals; computer interface apparatus’; – Class 42: ‘Cloud computing; monitoring of computer systems by remote access; installation, maintenance and updating of database software; consultancy relating to computer database programs; computer system design; creating of computer programs; cross-platform conversion of digital content into other forms of digital content; electronic data storage; computer programming; maintenance of computer programs; updating of computer software; software as a service [SaaS]’. 4 The trade mark application was published in European Union Trade Marks Bulletin No 114/2016 of 21 June 2016. The contested trade mark was registered on 28 September 2016. 5 On 30 June 2017, the intervener, Televes, SA, filed an application with EUIPO for a declaration of invalidity of the contested trade mark in respect of the goods and services referred to in paragraph 3 above. 6 The application for a declaration of invalidity was based on the earlier EU word mark TELEVES, applied for on 29 April 2004 and registered on 8 September 2005 under No 3809431, covering goods and services in Classes 9, 37 and 38 and corresponding, for each of those classes, to the following description: – Class 9: ‘Scientific, nautical, surveying, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life saving and teaching apparatus and instruments; apparatus for conducting, switching, transforming, accumulating, regulating or controlling electricity; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin operated apparatus; cash registers, calculating machines, data processing equipment and computers; extinguishers’; – Class 37: ‘Services for construction; repair; repair and maintenance’; – Class 38: ‘Telecommunications’. 7 The ground relied on in support of the application for a declaration of invalidity was that set out in Article 53(1)(a) of Regulation No 207/2009 (now Article 60(1)(a) of Regulation 2017/1001), read in conjunction with Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001). 8 By decision of 28 June 2019, the Cancellation Division of EUIPO upheld the application for a declaration of invalidity of the contested trade mark, on the ground that there was a likelihood of confusion on the part of the relevant public, within the meaning of Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001). 9 On 28 August 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Cancellation Division. 10 By decision of 12 December 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal. First, it found that the relevant territory consisted of the part of the European Union in which the relevant public speaks German, Bulgarian and Polish. That public consists of both the public at large and professionals, whose level of attention varies from average to high. Next, the Board of Appeal found that, in view of the identity or similarity of the goods and services covered by the signs at issue, the above-average degree of visual and phonetic similarity between the signs at issue, their lack of conceptual comparability, and having regard to the average degree of distinctiveness of the earlier mark, 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. Forms of order sought 11 The applicant claims that the Court should: – annul the contested decision; – order EUIPO to pay the costs. 12 EUIPO and the intervener contend that the Court should: – dismiss the application; – order the applicant to pay the costs. Law 13 As a preliminary point, given the date on which the application for registration at issue was filed, namely 16 June 2016, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009. 14 Consequently, in the present case, the references made by the Board of Appeal in the contested decision and by the parties in their written pleadings to Article 8(1)(b) of Regulation 2017/1001 and Article 60(1)(a) of Regulation 2017/1001 must be understood as referring to Article 8(1)(b) and Article 53(1)(a) of Regulation No 207/2009, which are worded identically. 15 Moreover, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001. 16 In support of its action, the applicant relies, in essence, on a single plea in law, alleging infringement by the Board of Appeal of Article 8(1)(b) of Regulation No 207/2009, in so far as it found that there was a likelihood of confusion between the signs at issue. In particular, the applicant disputes the Board of Appeal’s findings relating to the comparison of the services and goods covered by the signs at issue, the assessment of the relevant public, the comparison of those signs, and the conclusions which the Board of Appeal drew from its previous findings in its assessment of the overall likelihood of confusion. 17 EUIPO and the intervener dispute the applicant’s arguments. 18 Under Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) thereof, upon application by the proprietor of an earlier mark, a registered EU trade mark must be declared invalid 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. 19 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 similarity of the marks and 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 33 and the case-law cited). The relevant public 20 In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited). 21 In the contested decision, the Board of Appeal upheld the Cancellation Division’s finding that the goods and services at issue were aimed at both the public-at-large and professionals, whose level of attention varies from average to high. 22 The applicant submits that the Board of Appeal should have taken account of the fact that, since the intended purpose of the goods and services differs significantly, as do the distribution channels, the goods and services will not be in competition and, in the applicant’s view, the relevant customer will not be the same either. According to the applicant, the goods and services covered by the mark applied for are aimed at IT professionals, and the goods and services covered by the earlier mark are targeted at the general public. In addition, it takes the view that the goods and services linked to the IT sector are purchased on the basis of careful consideration. 23 EUIPO and the intervener dispute the applicant’s arguments. 24 The Court notes, as a preliminary point, that the examination of the goods in question must be based on the group of goods or services protected by the marks at issue and not the goods actually marketed under those marks (judgments of 16 June 2010 in Kureha v OHIM – Sanofi-Aventis (KREMEZIN), T‑487/08, not published, EU:T:2010:237, paragraph 71, and of 12 March 2020, Sumol + Compal Marcas v EUIPO – Heretat Mont-Rubi (SUM011), T‑296/19, not published, EU:T:2020:93, paragraph 44). Consequently, the Board of Appeal was right to find that the goods and services at issue were intended for both the public at large and professionals. 25 With respect to the relevant public’s level of attention, in view of the nature of the goods and services in question, the level of attention of the relevant public will vary from average to higher than average, depending on the prices of those goods and services and how frequently they are purchased (see, to that effect, judgment of 23 May 2019, Negru v EUIPO – Sky (SkyPrivate), T‑837/17, not published, EU:T:2019:351, paragraph 25). 26 In the light of the foregoing, the Board of Appeal correctly held that the relevant public for the goods and services at issue consists of the public at large and professionals, whose level of attention varies from average to high. Comparison of the goods and services 27 In assessing the similarity of the goods or services at issue, 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 and their method of use and whether they are in competition with each other or are complementary (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23). Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited). 28 Both the Board of Appeal and the Cancellation Division found that the goods ‘automatic vending machines’ covered by the mark applied for in Class 7 were identical to the same goods in Class 9 covered by the earlier mark, that the goods in Class 9 covered by the mark applied for were identical to certain goods in Class 9 covered by the earlier mark, and that the services covered by the mark applied for in Class 42 were similar to the ‘data processing equipment’ in Class 9 covered by the earlier mark, by virtue, inter alia, of their complementarity. 29 Furthermore, the Board of Appeal found that, in order to assess the similarity of the goods at issue, it was necessary to take into account the group of goods protected by the marks at issue and not the goods actually marketed under those marks. 30 The applicant submits that, in concluding that the contested goods and services were identical or similar, the Board of Appeal failed to take into consideration all the factors relevant to the comparison of those goods and services. 31 Furthermore, it submits that the Board of Appeal should have taken account of the fact that the parties operate on different markets, namely the telecommunications technology market (as regards the proprietor of the earlier mark) and the market for IT industry related to vending (as regards the applicant for the trade mark applied for), which is also apparent from the nature of the goods and services concerned. 32 In any event, the goods and services concerned are not, according to the applicant, offered to the same public or sold in the same outlets, nor do they have the same producers or method of use. In the highly computerised world of today, the main basic components can be found simultaneously in many electronic products and apparatus, resulting in a clear overlap between the goods and services concerned. In order to assess whether they are identical, similar or complementary, it is therefore necessary to examine whether they are actually offered through the same distribution channels, in the same shops and to the same customers. 33 Furthermore, by definition, according to the applicant, goods intended for different publics cannot be complementary. The same applies to ancillary goods, which merely accompany or supplement another registered product or service, since, according to the case-law, the component or accessory nature of one product with respect to another does not imply complementarity. 34 According to the applicant, the Board of Appeal’s conclusion that the applicant’s services in Class 42 were to be considered similar to the goods ‘data processing equipment’, covered by the earlier mark in Class 9, is based on an exceedingly broad and incorrect interpretation. ‘Data processing equipment’ registered as ‘goods’ refers to tangible hardware and software equipment while the applicant’s services registered in Class 42, for example ‘computer system design’, encompasses the process of defining the architecture, modules, interfaces, and data for a system to satisfy specified requirements. Furthermore, their distribution channels are not the same. 35 EUIPO and the intervener dispute the applicant’s arguments. 36 As correctly noted by EUIPO, it is apparent from the case-law that, in order to assess the identity or similarity of the goods and services at issue, the group or description of the goods and services protected by the marks at issue must be taken into account and not the goods actually marketed or to be marketed under those marks (see, to that effect, judgments of 16 June 2010 in Kureha v OHIM – Sanofi-Aventis (KREMEZIN), T‑487/08, not published, EU:T:2010:237, paragraph 71, and of 12 March 2020, Sumol + Compal Marcas v EUIPO – Heretat Mont-Rubi (SUM011), T‑296/19, not published, EU:T:2020:93, paragraph 44). The purpose of that assessment is to reduce the risk that the contested mark will be used for goods which may be perceived as coming from the same source. 37 Furthermore, although the assessment of similarity is based on a set of factors derived from those established in the case-law cited in paragraph 27 above, that assessment cannot be centred on the mere fact that the goods or services protected by the marks at issue have different distribution channels, which is only one factor among others to be taken into consideration. 38 That argument must therefore be rejected. 39 In that regard, first, as regards the ‘automatic vending machines’ covered by the mark applied for in Class 7, they are identical, both in nature and in method of use, to the ‘automatic vending machines and mechanisms for coin operated apparatus’ in Class 9 covered by the earlier mark. As is apparent from the contested decision, the goods at issue were classified in different classes only because of the different filing dates for the respective applications. 40 Secondly, the ‘data processing apparatus’ in Class 9 covered by the mark applied for are identical to the ‘data processing equipment’ covered, in the same Class 9, by the earlier mark. They must therefore be regarded as identical. 41 Thirdly, as the Board of Appeal rightly held, ‘remote control apparatus; optical readers; card reading equipment; encoded key cards; electrical controlling devices; intercommunication apparatus; modems; monitoring apparatus, electric; data processing apparatus; transmitters of electronic signals; control panels [electricity]; computer hardware; electro-dynamic apparatus for the remote control of signals; computer interface apparatus’ in Class 9, covered by the mark applied for, are included in or partially covered by the goods in Class 9 covered by the earlier mark. Therefore, those goods are considered identical. 42 Fourthly, as regards ‘computer software applications, downloadable; recorded computer programs and software’ and ‘printed circuit boards’ covered by the mark applied for, these were correctly found by the Board of Appeal to be similar to the ‘computers’ covered by the earlier mark. Moreover, as regards ‘computer software applications, downloadable; recorded computer programs and software’, the Board of Appeal correctly pointed out in the contested decision that those goods make it possible ‘to develop the same function’ namely the use of a computer system, software being indispensable to the functioning of computers, with the result that they are complementary. In addition, they are used by the same users, who can buy them in the same outlets. The same applies to printed circuit boards, which are complementary to computers, which may have the same distribution channels and target the same public. 43 Lastly, as regards the services in Class 42 covered by the mark applied for, the Board of Appeal correctly held that they are similar to ‘data processing equipment’ in Class 9 covered by the earlier mark given their complementarity and the fact that they are liable to be sold via the same distribution channels and target the same public. 44 As regards the argument based on the lack of complementarity between the goods and services designated by the marks at issue, relied on by the applicant, it must be held that, although it is true, as the applicant submits, that goods cannot be regarded as complementary on the ground that one is manufactured with the other (judgment of 9 April 2014, EI du Pont de Nemours v OHIM – Zueco Ruiz (ZYTEL), T‑288/12, EU:T:2014:196, paragraph 39 and the case-law cited), the applicant has not shown that the goods of one of the parties are manufactured using the goods of the other. 45 As regards the applicant’s argument relating to the tangible or intangible nature of the goods and services at issue, it seems to suggest that goods, which are by definition tangible, and services, which are not, cannot be complementary. In that regard, it suffices to note that the fact that ‘goods’, unlike ‘services’, are tangible is not per se sufficient to exclude the possibility of their complementarity (see, to that effect, judgment of 24 September 2008, Oakley v OHIM – venticinque (O STORE), T‑116/06, EU:T:2008:399, paragraphs 52 and 53). 46 It follows from the foregoing considerations that the Board of Appeal did not err in finding that the goods and services covered by the mark applied for are either identical or similar to those covered by the earlier mark. The comparison of the signs 47 The global assessment of the likelihood of confusion, in relation to the visual, aural or conceptual similarity of the marks in question, 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 this 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). 48 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 Board of Appeal’s assessment of the distinctive and dominant elements of the earlier mark. The distinctive and dominant elements of the earlier mark 49 The Board of Appeal found, first of all, that the two marks consisted of a single word and that no element could be regarded as dominant. Next, it found that the word ‘tele’ had a low degree of distinctiveness, in that it is used throughout the European Union to designate activities or services performed at a distance, such as telecommunications, the telephone and television. Lastly, the Board of Appeal noted that the elements ‘ves’ and ‘vend’ have no meaning for the relevant public, since they do not resemble any of the equivalents in the languages concerned, and that the element ‘vend’, in particular, will not be understood by the relevant public as it does not constitute a basic English word. Therefore, the Board of Appeal held that, despite the fact that the earlier mark is in part composed of an element which is not distinctive or weak, namely ‘tele’, its association with ‘ves’, which has no meaning in the relevant territories, would give the earlier mark an average degree of inherent distinctiveness. 50 The applicant submits that the earlier mark has a low degree of overall distinctiveness because the relevant public will be able to understand the term ‘ves’, which is shorter and placed after the non-distinctive element ‘tele’, as referring to ‘vision’ and to the goods and services covered by the earlier mark. The sign ‘televes’ thus suggests distance vision. Furthermore, it considers that the non-distinctive element ‘tele’ is dominant. In the alternative, the applicant submits that the degree of distinctiveness of the earlier mark must be considered to be average. 51 EUIPO and the intervener dispute the applicant’s arguments. 52 For the purpose of assessing the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35 and the case-law cited). 53 It should also be noted that the greater or lesser degree of distinctiveness of the elements making up the marks at issue is one of the relevant factors in the assessment of the similarity of the signs. The descriptive, non-distinctive or weakly distinctive elements of a trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by the mark (see, by analogy, judgments of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited; of 9 December 2020, Man and Machine v EUIPO – Bim Freelance (bim ready), T‑819/19, not published, EU:T:2020:596, paragraph 44 and the case-law cited; and of 12 May 2021, Sun Stars & Sons v EUIPO – Valvis Holding (AC AQUA AC), T‑638/19, not published, paragraphs 50 and 51). 54 In the present case, the element ‘tele’ will be perceived by the relevant public as descriptive of the goods and services offered by the proprietor of the mark, whereas, as the Board of Appeal rightly pointed out, it is used throughout the European Union to designate activities or services performed at a distance. Contrary to what the applicant claims, that element cannot be regarded as dominant. 55 As regards the element ‘ves’ of the earlier mark, the Board of Appeal’s finding that that word is not comprehensible to the German, Bulgarian and Polish public must be upheld. It does not resemble the equivalent in those languages. Accordingly, that element must be considered distinctive. 56 In view of the fact that ‘tele’ will be understood by the relevant public as an indication of the goods and services covered by the earlier mark, the element ‘ves’, which has no meaning for the relevant public, forms the dominant part of the mark. By weighing the descriptive element ‘tele’ against the distinctive character of the element ‘ves’, it must be held, as the Board of Appeal found, that the earlier mark ‘televes’, as a whole, enjoys an average degree of distinctiveness. Visual, phonetic and conceptual similarity 57 The Board of Appeal found that the marks at issue were visually and phonetically similar to a higher than average degree, having regard to the fact that they are similar in length, that they coincide in the letters ‘televe**’ and that the consumer generally pays greater attention to the beginning of a mark than to the end. Furthermore, it noted that the two marks are pronounced in three syllables and with a very similar rhythm. Conceptually, to the extent that the relevant public will dissect the marks in two elements, they coincide in their first, albeit weak, element ‘tele’. Therefore, the marks have a low degree of conceptual similarity. 58 The applicant submits that the signs at issue are visually and phonetically similar to a degree varying from low to average, given their different endings and the associated difference in pronunciation, as well as the letter ‘D’ contained in the mark applied for. It takes the view that, conceptually, the signs at issue are different. According to the applicant, the relevant public will understand each of the elements ‘ves’ and ‘vend’ contained in those signs. As regards the term ‘ves’, namely ‘see’ in Latin, the applicant submits that the Latin roots ‘vis’ and ‘vid’ of the word are found in Croatian equivalents (‘vidjeti’), Polish (‘widzenie’), Bulgarian (‘vizhdane’) and German (‘sehen’), as well as in numerous English words. As regards the term ‘vend’, the applicant submits that it is found in the etymology of the indo-European languages, for example, ‘vendor’ in English and ‘verkaufen’ in German, and that it is at least present in Latin form. It takes the view that the relevant public’s understanding of those terms will be all the more significant in view of the fact that, given the nature of the goods and services in question, that public is made up of young consumers who are inclined to know foreign languages. Besides, most communication concerning IT technologies takes place in English. 59 Furthermore, the applicant takes the view that the term ‘vend’ is itself associated with the vending industry, a common worldwide name for the self-service appliance industry. The relevant public will therefore in principle associate the term ‘vend’ with that sector. In addition, the term ‘vend’ is used in the automatic distribution industry in Germany (‘Deutschen Vending-Automatenwirtschaft’), Poland (‘Polskie Stowarzyszenie Vendingu’) and Bulgaria (‘Българска вендинг асоциация’). 60 EUIPO and the intervener dispute the applicant’s arguments. 61 As regards the visual and phonetic similarity between the signs, it must be stated that the signs at issue are similar to a higher than average degree. Although the common prefix ‘tele’ has a weak distinctive character, it cannot be denied that the words ‘televes’ and ‘televend’ consist of seven and eight letters respectively and coincide in the element ‘televe**’. As correctly noted by EUIPO, they are both pronounced in three syllables and with a very similar rhythm. The differences in the purposes of the marks are not sufficiently significant to change that conclusion. 62 Conceptually, the signs at issue coincide in the element ‘TELE’, which has a weak distinctive character, given that the relevant public will understand it as an activity or service provided at a distance. It has already been concluded that the element ‘ves’ has no meaning for the relevant public. The same applies to the element ‘vend’ of the mark applied for, given that, contrary to the applicant’s assertions, that word does not resemble its equivalents in German, Bulgarian or Polish, and that the English word ‘vendor’ cannot be regarded as forming part of basic English vocabulary, as a result of which it will not be comprehensible to the relevant public (see, to that effect, with respect to the English terms ‘star’, ‘snack’ and ‘food’, judgment of 11 May 2010, Wessang v OHIM – Greinwald (star foods), T‑492/08, not published, EU:T:2010:186, paragraph 52, and with respect to the term ‘pure power’, judgment of 27 June 2013, International Engine Intellectual Property Company v OHIM (PURE POWER), T‑248/11, not published, EU:T:2013:333, paragraphs 22 to 24 and 28). 63 In the light of the foregoing, the Board of Appeal did not err in finding that the marks at issue had to be regarded as having a higher than average degree of visual and phonetic similarity and a low degree of conceptual similarity. The likelihood of confusion 64 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). 65 The Board of Appeal found that there was a likelihood of confusion on the part of the consumers concerned in the relevant territories. In view of the consumer’s imperfect recollection and the interdependence of the various factors, it found that the differences between the signs would not be sufficient to counteract the similarities. 66 The applicant submits that the earlier mark has a weak distinctive character, that the marks are visually and phonetically similar to a low to average degree and that they are conceptually different. Furthermore, the registered goods and services are different, in view of the fact that they have different purposes, distribution channels, outlets and methods of use and that they are not complementary. Furthermore, according to the applicant, it cannot be claimed that the relevant public, which consists mainly of informed users in the computer industry with an average to high level of attention, would confuse the marks at issue or would assume that the goods and services in question come from the same undertaking or from economically linked undertakings. 67 EUIPO and the intervener dispute the applicant’s arguments. 68 As is apparent from the foregoing, the goods and services at issue are either identical or similar; the earlier mark has an average degree of distinctiveness; the marks at issue are visually and phonetically similar to an average degree and are not conceptually similar. Since the level of attention of the relevant public varies from average to high, the Court finds that, in accordance with the case-law, with respect to the assessment of the likelihood of confusion, the public with the lowest level of attention must be taken into consideration (judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraph 29 and the case-law cited). In the light of all those factors, it must be concluded that there is a likelihood of confusion in the present case. 69 Nor, in addition, can the applicant’s argument that the marks at issue will not be similar since they operate in different markets be linked to the overall assessment of the likelihood of confusion. As particular marketing strategies for the goods or services covered by the marks may vary over time and depend on the wishes of the proprietors of those marks, an analysis of whether there will be a likelihood of confusion between two marks cannot be dependent on the marketing intentions of the proprietors of the marks, whether implemented or not, which are by their very nature subjective (judgments of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59, and of 9 September 2008, Honda Motor Europe v OHIM – Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 63) 70 In the light of all of the foregoing, the appeal must be dismissed. 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 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 (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders Intis d.o.o. to pay the costs. Spielmann Öberg Mastroianni Delivered in open court in Luxembourg on 20 October 2021. E. Coulon S. Papasavvas Registrar President * Language of the case: English.