Information;Judgment — ECLI:EU:T:2021:694
Date: 2021-10-13
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

JUDGMENT OF THE GENERAL COURT (Sixth Chamber) 13 October 2021 (*) (EU trade mark – Invalidity proceedings – EU figurative mark UNI-MAX – Earlier EU figurative marks uni and uni-ball – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 (now Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001)) In Case T‑591/20, Unimax Stationery, established in Daman (India), represented by A. Hempel and C. Grünewald, lawyers, applicant, v European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl and A. Folliard-Monguiral, acting as Agents, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Mitsubishi Pencil Co. Ltd, established in Tokyo (Japan), represented by J. Fesenmair, lawyer, ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 20 July 2020 (Case R 371/2020‑5), relating to invalidity proceedings between Mitsubishi Pencil and Unimax Stationery, THE GENERAL COURT (Sixth Chamber), composed of A. Marcoulli (Rapporteur), President, J. Schwarcz and C. Iliopoulos, Judges, Registrar: E. Coulon, having regard to the application lodged at the Court Registry on 28 September 2020, having regard to the response of EUIPO lodged at the Court Registry on 22 December 2020, having regard to the response of the intervener lodged at the Court Registry on 22 December 2020, 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 14 August 2015, the applicant, Unimax Stationery, 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 following figurative sign, for which the colours orange, red, white and black were claimed: 3 The goods in respect of which registration was sought are in Class 16 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 to the following description: ‘Writing instruments and articles of stationery’. 4 The application for registration was published in Community Trade Marks Bulletin No 2015/158 of 24 August 2015. The contested mark was registered as an EU trade mark on 1 December 2015 under No 14466932 for the goods referred to in paragraph 3 above. 5 On 13 August 2018, the intervener, Mitsubishi Pencil Co. Ltd, filed an application with EUIPO for a declaration of invalidity of the contested mark. 6 The application for a declaration of invalidity was based on the following earlier rights: – the EU figurative mark registered on 8 January 2009 under No 6920615 for goods in Class 16 corresponding to the following description: ‘Writing instruments including correction pens’, and reproduced below: – the EU figurative mark registered on 19 November 1998 under No 142463 for goods in Class 16 corresponding to the following description: ‘Stationery’, and reproduced below: 7 The grounds relied on in support of the application for a declaration of invalidity were those referred to 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) and (5) of Regulation No 207/2009 (now Article 8(1)(b) and (5) of Regulation 2017/1001). 8 By decision of 17 December 2019, the Cancellation Division upheld the application for a declaration of invalidity and declared the contested mark invalid. 9 On 14 February 2020, 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 20 July 2020 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal and upheld the decision of the Cancellation Division. 11 For reasons of procedural economy, the Board of Appeal, as the Cancellation Division had also done, examined the application for a declaration of invalidity in relation to the first earlier figurative mark. In particular, the Board of Appeal endorsed the findings of that division, which were not disputed before it, to the effect that, first, the relevant public consisted of at least the English-speaking general public of the European Union, whose level of attention varied from average to low, and, secondly, the goods at issue were identical. As regards the comparison of the signs at issue, it found that they had at least an average degree of visual and phonetic similarity and were conceptually identical. In those circumstances, it concluded that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 and that, therefore, it was not necessary to examine the other earlier right on which the action for a declaration of invalidity was based. Forms of order sought 12 The applicant claims that the Court should: – annul the contested decision; – order EUIPO to pay the costs. 13 EUIPO and the intervener contend that the Court should: – dismiss the action; – order the applicant to pay the costs. Law 14 Given the date on which the application for registration at issue was filed, namely 14 August 2015, 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 (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited). 15 Accordingly, in the present case, as regards the substantive rules, the references made by the Board of Appeal in the contested decision and by the applicant and the intervener in their written pleadings to Article 8(1)(b) and (5) and Article 60(1)(a) of Regulation 2017/1001 must be understood as referring to Articles 8(1)(b) and (5) and Article 53(1)(a) of Regulation No 207/2009, which are identical in content. 16 In support of its action, the applicant raises a single plea in law, alleging infringement of Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) thereof. 17 The applicant criticises the Board of Appeal’s finding that the element ‘max’ of the contested mark was a laudatory term devoid of any distinctive character. It submits that that element is not a mere laudatory message and that the existence of EU trade marks composed of the ending ‘max’ demonstrates its distinctive character. It also maintains that the board did not give a reasoned reply to all its arguments in that regard. Therefore, according to the applicant, that element was not duly taken into account by the Board of Appeal in its assessment of the similarity of the signs, which is, moreover, incomplete and inadequate. 18 EUIPO contends that the applicant’s arguments are ineffective and, in any event, unfounded. 19 The intervener disputes the applicant’s arguments. 20 Under Article 53(1)(a), read in conjunction with Article 8(1)(b) of Regulation No 207/2009, upon application by the proprietor of an earlier trade mark, an EU trade mark is to 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. 21 According to settled case-law, 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. According to the same case-law, 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 33 and the case-law cited). 22 For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, 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). 23 According to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30). The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, 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 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 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). 24 Where the protection accorded to the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited). 25 It is in the light of those considerations that the present action must be examined. 26 As a preliminary point, it should be noted that the applicant does not dispute the Board of Appeal’s assessment that the relevant public is composed of at least general English-speaking consumers of the European Union, whose level of attention varies from average to low. Nor does the applicant dispute the Board of Appeal’s finding that the goods at issue are identical. Moreover, it should be noted that there is nothing in the file capable of calling those findings into question. The effectiveness of the single plea in law 27 EUIPO submits that the single plea in law must be rejected as ineffective in so far as, by that plea, the applicant merely claims that the Board of Appeal incorrectly assessed, without stating sufficient reasons, the distinctive character of the element ‘max’ of the contested mark and its impact on the comparison of the signs, without stating the influence of those alleged errors on the outcome of the cancellation proceedings. In its view, in the present case, even if established, such errors do not vitiate the Board of Appeal’s analysis of the likelihood of confusion. More specifically, it claims that the element ‘uni’, which constitutes in itself the earlier mark, conveys its own concept in the contested mark and therefore plays an independent role therein, with the result that the relevant public would have the impression that the earlier mark is entirely contained in the contested mark. Therefore, in such a case, in accordance with the judgment of 6 October 2005, Medion (C‑120/04, EU:C:2005:594, paragraph 37), a likelihood of confusion should in any case be found. 28 In that regard, the Court of Justice has held that where the goods or services are identical there may be a likelihood of confusion on the part of the public where the contested sign is composed of the juxtaposition of the company name of another party with a registered mark which has normal distinctiveness and which, without alone determining the overall impression conveyed by the composite sign, still has an independent distinctive role therein (judgment of 6 October 2005, Medion, C‑120/04, EU:C:2005:594, paragraph 37). 29 It should be noted that the application of that case-law has been extended to other situations, including, inter alia, cases in which the goods and services at issue are not identical but merely similar and cases in which the earlier mark is not the name of the undertaking which holds it (see judgment of 28 April 2021, West End Drinks v EUIPO – Pernod Ricard (The King of SOHO), T‑31/20, not published, EU:T:2021:217, paragraph 112 and the case-law cited). 30 Thus, it is apparent from the case-law resulting from the judgment of 6 October 2005, Medion (C‑120/04, EU:C:2005:594), and the developments since, that, even if the element common to the marks at issue cannot be regarded as dominating the overall impression, it must be taken into account in the assessment of the similarity of those marks, to the extent that it constitutes in itself the earlier mark and retains an independent distinctive role in the trade mark consisting, inter alia, of that element, for which registration is sought. Where a common element retains an independent distinctive role in the composite sign, the overall impression produced by that sign may lead the public to believe that the goods or services at issue come, at the very least, from companies which are linked economically, in which case a likelihood of confusion must be held to be established (judgment of 22 October 2015, BGW, C‑20/14, EU:C:2015:714, paragraph 38). 31 That said, the Court of Justice has stated that that particular case-law cannot affect the obligation to carry out a global assessment of all the components of the marks at issue. It is settled case-law that the existence of a likelihood of confusion on the part of the public must be assessed globally, taking into account all factors relevant to the circumstances of the case (see order of 29 June 2011, adp Gauselmann v OHIM, C‑532/10 P, not published, EU:C:2011:433, paragraph 43 and the case-law cited). 32 Therefore, even in the circumstances set out in paragraph 28 above, it is necessary to ascertain, in each individual case, the overall impression made on the target public by the sign whose registration is contested, by means of, inter alia, an analysis of the components of a sign and of their relative weight as perceived by the target public, and then, in the light of that overall impression and all factors relevant to the circumstances of the case, to assess the likelihood of confusion (see, by analogy, judgment of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 34). 33 Therefore, even if the Board of Appeal found that the element ‘uni’ comprising the earlier mark retained, in the contested mark, an independent distinctive role within the meaning of the case-law cited in paragraph 28 above, which is not apparent from the contested decision, it follows from the case-law referred to in paragraphs 31 and 32 above that the existence of a likelihood of confusion between the marks at issue cannot be based on that finding alone but must, in any event, result from a global assessment of all the components of the signs at issue, akin to that carried out by the Board of Appeal itself. It follows that, contrary to EUIPO’s submissions, the applicant’s single plea in law is not ineffective. The merits of the single plea in law 34 As noted in paragraph 17 above, in order to call into question the Board of Appeal’s finding as to the existence of a likelihood of confusion between the marks at issue, the applicant merely disputes the Board of Appeal’s finding that the element ‘max’ of the contested mark was a laudatory term devoid of any distinctive character. According to the applicant, that element was therefore not duly taken into account by the Board of Appeal in its assessment of the similarity of the signs. 35 According to the case-law, in order to determine 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 or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services 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 (judgment of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35). 36 In the present case, the contested mark consists of the words ‘uni’ and ‘max’ linked by a hyphen, represented in white, bold and italic capital letters. That word element is located in a bright red rectangle in the centre of which an orange dot is placed, the diameter of which is approximately twice as great as that of the font used for the word element. 37 As regards the distinctive character of the elements comprising the contested mark, the Board of Appeal found, first, that the figurative elements were simple decorative elements and were not distinctive. That assessment is not disputed by the applicant and, moreover, there is nothing in the file capable of calling it into question. 38 Secondly, as regards the term ‘uni’ of the contested mark, the Board of Appeal found that it was a well-known prefix in English which means ‘having or consisting of only one’ or which is an abbreviation for university and that it would be perceived by the English-speaking public as referring to ‘single’. That term has no descriptive or otherwise weak meaning for the goods at issue. Its inherent distinctive character is therefore normal. That assessment is also not disputed by the applicant and, moreover, there is nothing in the file capable of calling it into question. 39 Lastly, as regards the term ‘max’ of the contested mark, the Board of Appeal stated that it would be perceived as a common abbreviation of the word ‘maximum’. Since it clearly and directly informs the consumer of the characteristics of the goods at issue as to their strength, their components or their size, it is a laudatory term, devoid of any distinctive character for the goods at issue. The impact of that non-distinctive element in the assessment of the likelihood of confusion is therefore limited. 40 In order to dispute the Board of Appeal’s assessment, the applicant submits, in the first place, that the term ‘max’ of the contested mark is not a mere laudatory message. 41 In that regard, as the Board of Appeal has observed, the term ‘max’ has a laudatory connotation in so far as it constitutes the common abbreviation of the English word ‘maximum’ and therefore refers to a maximum level of performance and efficiency (see, to that effect, judgments of 15 October 2008, Air Products and Chemicals v OHIM – Messer Group (Ferromix, Inomix and Alumix), T‑305/06 to T‑307/06, not published, EU:T:2008:444, paragraph 49, and of 9 March 2017, Maximum Play v EUIPO (MAXPLAY), T‑400/16, not published, EU:T:2017:152, paragraph 32). As the Board of Appeal states, the element ‘max’ of the contested mark therefore informs the relevant public clearly and directly of the characteristics of the goods at issue as regards their strength, their components or their size. 42 In the second place, the applicant submits that the Board of Appeal did not state reasons for rejecting its argument that the element ‘max’ of the contested mark has no meaning since the element ‘uni’ of that mark, which refers to ‘universal’, ‘university’ or ‘uniformity/monochromaticity’, cannot be ‘maximised’. 43 It should be noted that that criticism is based on a partial, and therefore incorrect, reading of the contested decision. In paragraph 35 of that decision, to which the applicant refers, the Board of Appeal stated, first, that the applicant’s argument that the contested mark was a neologism, in which the element ‘max’, combined with the element ‘uni’, had no meaning, was manifestly unfounded. It then set out, secondly, in paragraph 36 of that decision, the reasons for that rejection. It stated, in essence, that the relevant public will perceive the contested mark as consisting of two separate word elements. 44 Furthermore, in so far as the applicant seeks to claim that the element ‘max’ of the contested mark has no meaning because of its combination with the element ‘uni’ of that mark, which cannot be maximised, without however claiming that that mark is a neologism, that argument cannot be accepted. It must be held that, for the reasons put forward by the Board of Appeal, the fact that the element ‘uni’ cannot allegedly be ‘maximised’ does not alter the clear and laudatory meaning of the element ‘max’. 45 First, as the Board of Appeal observes, the terms ‘uni’ and ‘max’ are separated in the contested mark by a hyphen. The presence of that hyphen creates a visual separation which suggests the meaning of those words. 46 Secondly, as the Board of Appeal observes, according to the case-law, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a verbal sign, he or she will break it down into elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 57). 47 In the present case, as has been found in paragraphs 38 and 41 above, the element ‘uni’, as a reference to the term ‘single’, and the element ‘max’, as an abbreviation of the term ‘maximum’, convey in the contested mark an independent and clearly comprehensible meaning. Therefore, irrespective of whether the term ‘uni’ may be ‘maximised’, it must be held that the Board of Appeal was correct in finding that the English-speaking part of the relevant public would easily break down the word element of the sign whose registration is contested into two independent parts, particularly since the combination of the elements ‘uni’ and ‘max’ is unremarkable. 48 It follows that the element ‘max’ retains its meaning in the contested mark and will be perceived by the relevant public as referring to the word ‘maximum’. 49 In the third place, the applicant’s argument that the element ‘max’ of the contested mark is necessarily distinctive, since EUIPO has, in the past, granted applications for registration of EU trade marks composed of a descriptive prefix and the ending ‘max’, cannot succeed either. 50 In that regard, it must be borne in mind that, according to settled case-law, the decisions which the Boards of Appeal of EUIPO are called on to take under Regulation No 207/2009, concerning registration of a sign as an EU trade mark, are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of the decisions of the Boards of Appeal must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of a previous decision-making practice of EUIPO, which cannot, in any event, bind the Courts of the European Union (judgments of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47, and of 16 October 2014, Larrañaga Otaño v OHIM (GRAPHENE), T‑458/13, EU:T:2014:891, paragraph 35). 51 It follows that the fact that EUIPO may have taken into consideration, in the context of the registration as EU trade marks of marks consisting of the element ‘max’, that that element is distinctive is not a sufficient ground, in itself, for the Court to annul the contested decision (see, to that effect, judgment of 9 December 2020, Promed v EUIPO – Centrumelektroniki (Promed), T‑30/20, not published, EU:T:2020:599, paragraph 57 and the case-law cited). 52 Furthermore, it is also clear from the case-law that EUIPO is under a duty to exercise its powers in accordance with the general principles of EU law. Although, in the light of the principles of equal treatment and sound administration, EUIPO must take account of the decisions already taken in respect of similar applications and consider with especial care whether it should decide in the same way, the way in which those principles are applied must, however, be consistent with respect for the principle of legality. Consequently, a person who files an application for registration of a sign as a trade mark cannot rely, to his or her advantage and in order to secure an identical decision, on a possibly unlawful act committed for the benefit of another (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 76, and of 21 March 2014, FTI Touristik v OHIM (BigXtra), T‑81/13, not published, EU:T:2014:140, paragraph 52). 53 Moreover, for reasons of legal certainty and sound administration, the examination of any application for registration must be stringent and comprehensive in order to prevent marks from being improperly registered. That examination must be undertaken in each individual case. The registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case and the purpose of which is to ascertain whether the sign at issue is caught by a ground for refusal (see, to that effect, judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraph 77, and of 9 March 2017, MAXPLAY, T‑400/16, not published, EU:T:2017:152, paragraph 49). 54 As EUIPO states, it must be observed, first, that the earlier registrations cited by the applicant are all word signs, namely FURNITUREMAX, POWERMAX, THERMOMAX, DURAMAX, MIRRORMAX, OFFICEMAX, the various elements of which form a unitary whole. In that regard, they differ from the contested mark in which the presence of a hyphen creates a visual separation between the elements ‘uni’ and ‘max’. Secondly, with the exception of the mark OFFICEMAX, all the marks relied on concerned goods unrelated to the goods at issue in the present case. 55 Consequently, the Board of Appeal correctly found that the element ‘max’ in the contested mark is devoid of distinctive character and that its impact on the assessment of the likelihood of confusion between the marks at issue is limited. 56 It follows that the applicant relies on a false premiss when it claims that the Board of Appeal did not properly take into account the element ‘max’ of the contested mark in its examination of the similarity of the signs. Accordingly, its arguments in that regard must necessarily be rejected as unfounded. 57 Regarding the applicant’s other arguments relating to the Board of Appeal’s assessment as regards the similarity of the signs, it is necessary, in the first place, to reject the argument that the Board of Appeal failed to examine the phonetic similarity of the signs. That argument is based on an incorrect reading of the contested decision. The Board of Appeal analysed that similarity in paragraphs 40 to 44 of the contested decision and concluded that there was at least an average degree of similarity. It is true that that examination was not the subject of a separate analysis from that relating to the visual similarity of the signs. However, the fact that those analyses were carried out together does not preclude the finding, in the light of paragraphs 40 to 44 of the contested decision, that the examination of the phonetic similarity of the signs was carried out. In addition, in so far as the applicant submits that, in any event, that assessment does not satisfy the comprehensive assessment required in appeal proceedings, it is sufficient to note that that argument is not substantiated in any way. 58 In the second place, as regards the visual and conceptual comparison of the signs, even if the applicant seeks to claim, without it being clear from the application, that the element ‘max’ of the contested mark was not in any way taken into consideration, that argument must be rejected as being unfounded. First, as regards visual similarity, the Board of Appeal stated that the signs at issue differed in their respective representations, but also in the element ‘max’. Secondly, as regards conceptual similarity, it referred to that element, but did not regard it to be decisive given that it was devoid of distinctive character and that the signs at issue are associated with a similar meaning on account of their normally distinctive common element ‘uni’. 59 In those circumstances, it must be held that the applicant has not put forward any arguments from which it may be concluded that the Board of Appeal erred in finding that there was a likelihood of confusion between the contested mark and the earlier mark. 60 Consequently, the single plea in law must be rejected and, accordingly, the action must be dismissed in its entirety. Costs 61 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. 62 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 (Sixth Chamber) hereby: 1. Dismisses the action; 2. Orders Unimax Stationery to pay the costs. Marcoulli Schwarcz Iliopoulos Delivered in open court in Luxembourg on 13 October 2021. E. Coulon M. van der Woude Registrar President * Language of the case: English.