Judgment — ECLI:EU:T:2018:43
Date: 2018-01-30
Language of the case: English
Court formation: First Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded

JUDGMENT OF THE GENERAL COURT (First Chamber) 30 January 2018 (*) (EU trade mark — Opposition proceedings — International registration designating the European Union — Figurative mark representing a member of the cat family jumping to the right — Earlier EU figurative mark representing a member of the cat family jumping to the left — Relative ground for refusal — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001)) In Case T‑113/16, Arctic Cat Inc., established in Thief River Falls, Minnesota (United States), represented by M. Hartmann and S. Fröhlich, lawyers, applicant, v European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent, defendant, the other party to the proceedings before the Board of Appeal of EUIPO having been Slazengers Ltd, established in Burnham (United Kingdom), ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 11 January 2016 (Case R 2953/2014-5), relating to opposition proceedings between Slazengers and Arctic Cat, THE GENERAL COURT (First Chamber), composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges, Registrar: E. Coulon, having regard to the application lodged at the Court Registry on 21 March 2016, having regard to the response lodged at the Court Registry on 3 May 2016, having regard to the suspension of the procedure, at the request of the parties to the procedure before the Board of Appeal of EUIPO, between 20 June 2016 and 12 May 2017, having regard to Slazengers having lost its status as an intervener before the General Court in that it failed to respond to the application within the period prescribed, having regard to the fact that no request for a hearing was submitted by the main 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 22 November 2007 the applicant, Arctic Cat Inc., designated the European Union, with effect from 12 October 2012, in the context of its application for protection of the international registration No 941 684. 2 The mark for which the designation was made is the following figurative sign: 3 The goods in respect of which protection was sought are, following the restriction made in the course of proceedings before the European Union Intellectual Property Office (EUIPO), in Classes 12 and 25 of the Nice Agreement concerning the Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for the goods in Class 25, to the following description: ‘Power sport vehicle-specific clothing, including protective outerwear, balaclavas and face masks’. 4 The application for protection was published in Community Trade Marks Bulletin No 64/2007 of 26 November 2007. 5 On 22 August 2008 Slazengers Ltd filed a notice of opposition pursuant to Article 156 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p.1), read in conjunction with Article 41 of that regulation (those two articles now Articles 196 and 46, respectively, of Regulation (EU) 2017/1001 of the European Parliament and the Council of 14 June 2017 on the EU trade mark (OJ 2017 L 154, p.1)), initially for all the goods mentioned in paragraph 3 above, the opposition being subsequently limited to the goods in Class 25. 6 The opposition was based, inter alia, on the following earlier marks: – The EU figurative mark No 4 071 528 designating, inter alia, goods in Class 25 corresponding to the following description: ‘clothing; sportswear; footwear; sports shoes, trainers, boots, walking boots, football boots, shoes, cycling shoes; headgear; waterproof and weatherproof clothing; thermal clothing; lightweight clothing; coats; sports clothing; jackets, anoraks, pullovers, trousers, shirts, T-shirts, cagoules, smocks and salopettes; gloves, hats, balaclavas, socks, underwear and gaiters; parts and fittings for all the aforesaid goods’, as reproduced below: – The UK figurative mark No 2 380 107 designating goods in Class 12, as reproduced below: 7 The grounds relied on in support of the opposition were those referred to in Article 8(1)(b), (4) and (5) of Regulation No 207/2009 (now Article 8(1)(b), (4) and (5) of Regulation No 2017/1001). 8 On 22 October 2014 the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009 both in respect of the goods in Class 12 and in respect of those in Class 25. 9 On 19 November 2014 the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Opposition Division. 10 By decision of 11 January 2016 (‘the contested decision’), the Fifth Board of Appeal of EUIPO upheld the appeal solely to the extent that the decision of the Opposition Division had upheld the opposition in respect of the goods in Class 12. 11 As regards the goods in Class 25 (‘the goods in question’), the Board of Appeal found that there was a likelihood of confusion between the marks at issue, taking into consideration the EU figurative mark No 4 071 528 (‘the earlier mark’) only. That finding is based, in essence, on the assessments that (i) the relevant public is composed of the general public, whose level of attention is not above average, and of power sport vehicle professionals, whose level of attention is above average, (ii) the goods are identical, (iii) the signs are similar, given their visual similarity and their obvious conceptual similarity, a phonetic comparison being irrelevant, and (iv) the earlier mark has an average degree of distinctiveness. Forms of order sought and procedure before the Court 12 The applicant claims that the Court should: – annul the contested decision to the extent that it dismisses the applicant’s appeal relating to the opposition as regards the goods covered in Class 25; – authorise the protection of the international registration No 941 684 in the European Union for the goods covered in Class 25; – order EUIPO to pay the costs of the proceedings before the General Court and order the other party before the Board of Appeal to pay the costs of the proceedings before EUIPO. 13 EUIPO contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law Preliminary observations 14 At the outset, concerning, first of all, the applicant’s second head of claim that the General Court should authorise the protection of international registration No 941 684 in the European Union in respect of the goods in question, it should be borne in mind that, in an action brought before the Courts of the European Union against the decision of a Board of Appeal of EUIPO, EUIPO is required, in accordance with Article 65(6) of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001), to take the measures necessary to comply with judgments of the Courts of the European Union. Accordingly, is not for the General Court to issue directions to EUIPO. It falls to the latter to draw the appropriate inferences from the operative part and grounds of the judgments of the Courts of the European Union (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 20 and the case-law cited). Therefore, the applicant’s second head of claim is inadmissible. 15 Next, as regards the applicant’s position relating, first, to the marks relied on in support of the opposition other than those on which the Board of Appeal based its decision, and, secondly, to the grounds of opposition referred to in Article 8(4) and (5) of Regulation No 207/2009 which were not examined by the Board of Appeal, it should be borne in mind that it is not for the General Court, in the context of its review of the lawfulness of the decisions taken by the Boards of Appeal of EUIPO, to carry out an assessment of a point on which those Boards of Appeal have not yet adopted a position (see, to that effect, judgment of 16 February 2017, Gruppe Nymphenburg Consult v EUIPO (Limbic® Sales), T‑517/15, not published, EU:T:2017:81, paragraph 55 and the case-law cited). 16 Finally, as regards the reference made by the applicant to the written submissions it made during the course of the administrative proceedings, it must be noted that such a reference does not satisfy the requirements of Article 76(d) of the General Court’s Rules of Procedure and therefore cannot be taken into account (see, by analogy, judgment of 7 June 2005, Münchener Rückversicherungs-Gesellschaft v OHIM (MunichFinancialServices), T‑316/03, EU:T:2005:201, paragraph 23 and the case-law cited). The action 17 The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. That plea is, in essence, composed of four parts, raising objections to the contested decision as regards, in the first part, the level of attention of the relevant public, in the second and third parts, the comparison of the signs and, in the fourth part, the global assessment of the likelihood of confusion. The applicant refers to various errors that the Board of Appeal allegedly made, namely: – first, in finding that only part of the relevant public would have a higher than average level of attention; – second, in finding that the signs at issue are visually similar; – third, in finding that the signs at issue are conceptually identical; – fourth, in failing to take into account the weak distinctive character of the earlier mark in its assessment of the likelihood of confusion between the marks at issue. 18 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not 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 in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 19 It must be noted, at this point, that the finding of the Board of Appeal that the goods covered in Class 25 designated by the marks at issue are identical is not disputed. That finding is based on adoption of the reasoning of the Opposition Division in that regard, which held that the ‘power sport vehicle-specific clothing, including protective outerwear, balaclavas and face masks’ in Class 25 and covered by the applicant’s mark are included in the broader category of ‘clothing’ covered by the earlier mark. The relevant public 20 It is apparent from the contested decision that the relevant public, which is made up of consumers likely to use both the goods designated by the earlier mark and those designated by the applicant’s mark, includes, on the one hand, average consumers with an average level of attention and, on the other hand, power sport vehicle professionals, whose level of attention is higher than average, given the importance of the goods in question for their physical protection. 21 By the first part of its plea, the applicant, which accepts the Board of Appeal’s definition of the relevant public, nonetheless challenges the contested decision as concerns the level of attention of average consumers. With regard to the goods in question, namely ‘power sport vehicle-specific clothing’, which are specialised goods, those consumers are also specialist consumers, as they are persons who practice power vehicle sports or, at the least, persons involved in such sports, who also have a higher than average level of attention. 22 EUIPO does not accept that this part of the plea is well founded. 23 In that regard, it must be noted that consumers have a higher level of attention when choosing safety and protection goods that are specifically connected to the dangers of practising a motor sport compared to their level of attention with regard to choosing sporting articles in general (see, to that effect, judgment of 8 September 2010, Kido v OHIM — Amberes (SCORPIONEXO), T‑152/08, not published, EU:T:2010:357, paragraphs 3 and 38). 24 Nonetheless, as EUIPO contends, the description of the goods designated by the applicant’s mark in Class 25 is broad since, although it includes ‘protective outerwear’, it refers generically to ‘power sport vehicle-specific clothing’. That generic description covers a wide range of goods, some of which have no connection with the safety and protection of practitioners of motor sports with regard to the specific dangers of practising those sports, and in respect of the purchase of which average consumers will not have a higher degree of attention than in respect of the purchase of sporting articles in general. 25 As regards the assessment of the likelihood of confusion, when a type of goods designated by a mark at issue covers several kinds of goods, none of which is insignificant, for which the level of attention of the relevant public varies, the section of the public which has the lowest level of attention must be taken into consideration in order to evaluate the likelihood of confusion (see, to that effect, judgments of 15 February 2011, Yorma’s v OHIM — Norma Lebensmittelfilialbetrieb (YORMA’S), T‑213/09, not published, EU:T:2011:37, paragraph 25, and of 15 July 2011, Ergo Versicherungsgruppe v OHIM — Société dedéveloppement et de recherche industrielle (ERGO), T‑220/09, not published, EU:T:2011:392, paragraphs 20 and 21). 26 The same applies when the level of attention differs as concerns, on the one hand, the section of the relevant public with regard to the goods covered by the earlier mark and, on the other hand, the section of the relevant public with regard to the goods covered by the mark applied for, provided that the section of the relevant public with the lowest level of attention is not insignificant (see, to that effect, judgment of 8 September 2010, SCORPIONEXO, T‑152/08, not published, EU:T:2010:357, paragraphs 37 to 40). However, in the present case, it is not alleged that the level of attention of the section of the relevant public concerned by a not insignificant part of the goods covered by the earlier mark is higher than average. 27 Therefore, it is not apparent that the Board of Appeal erred in its determination of the level of attention of the relevant public to be taken into consideration for the purpose of the assessment of the likelihood of confusion between the marks at issue. 28 The first part of the plea must therefore be rejected. The comparison of the signs 29 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 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 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). 30 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 (see judgment of 24 May 2012, Grupo Osborne v OHIM — Industria Licorera Quezalteca (TORO XL), T‑169/10, not published, EU:T:2012:261, paragraph 22 and the case-law cited). 31 In that regard, according to the contested decision, the signs at issue are similar on account of the fact that they are visually similar and conceptually identical, while a phonetic comparison is not relevant, as the two signs are purely figurative. 32 More specifically, as regards, in the first place, the visual comparison, the contested decision notes that there are many similarities between the two signs (representation of a black, wild cat jumping upwards, conveying an impression of movement, stretching its fore- and hind legs, with tail pointing up and muzzle wide open) and certain differences (animal facing left or right, more rounded or more angular graphical representation). However, those differences are said to be details that consumers hardly notice and probably do not remember. 33 By the second part of its plea, the applicant disputes the Board of Appeal’s assessment that the marks at issue are visually similar. The two marks have, in that respect, marked differences that broadly cancel out their similarities, described by the applicant as very weak. 34 A material difference, according to the applicant, is that the signs in question represent different animals (a fantasy animal as concerns the applicant’s mark, a black panther as concerns the earlier mark) in different styles (a stylised and angular outline as concerns the applicant’s mark, soft and regular lines as concerns the earlier mark), so that each sign conveys a very different overall impression. What is more, the signs also face in different directions, and the applicant’s mark has recognisable teeth, eyes and ears; the animals represented are also either in a tilted or horizontal position, depending on the sign. The Board of Appeal also, according to the applicant, described the marks at issue incorrectly, as the panther of the earlier mark is not jumping and that mark alone represents an animal whose forelegs are stretched, whereas the forelegs of the animal represented in the applicant’s mark are tucked. 35 EUIPO does not accept that this part of the plea is well founded. 36 According to the case-law recalled in paragraph 29 above, the comparison of the signs must be based on the overall impression given by those signs, as the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details. The applicant’s argument that this is not the case in the clothing sector, as the visual perception of marks is particularly important, is based, as stated by EUIPO, on an incorrect interpretation of the case-law according to which, in that sector, in the course of an analysis of the likelihood of confusion, the visual comparison of signs is particularly important compared to the phonetic comparison of those signs, as these are goods which are generally chosen by carrying out a visual assessment (see, to that effect, judgments of 6 October 2004, New Look v OHIM — Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection), T‑117/03 to T‑119/03 and T‑171/03, EU:T:2004:293, paragraphs 49 and 50, and of 23 September 2015, Appelrath-Cüpper v OHIM — Ann Christine Lizenzmanagement (AC), T‑60/13, not published, EU:T:2015:677, paragraph 48 and the case-law cited). 37 In the present case, the overall impression is dominated, in both of the signs concerned by the black silhouette of a member of the cat family represented in profile, conveying an impression of movement, characterised by the position of the fore- and hind legs extending from the central part of the body and not supporting it. Those similarities will be immediately noticed and easily remembered by the average and reasonably observant consumer. 38 Furthermore, there is no basis for the applicant’s claim that the Board of Appeal incorrectly described the animals represented. There is no specific feature that permits the inference that the animal represented in the applicant’s mark would be identified by the relevant public as a fantasy animal rather than a member of the cat family. Although the more angular style of the representation of that animal is not as realistic as the style of the earlier mark, that difference in style does not prevent that animal from being perceived as a member of the cat family. As described by the Board of Appeal, the animals are represented in both signs in a position that clearly conveys an impression of movement, jumping, in contrast to a resting position, moving at a slow pace or with legs tucked while running. Although the sharp downward extension of the line which corresponds to the hind legs of the animal represented in the applicant’s mark suggests that that animal is beginning its jump rather than actually jumping, that observation is however the result of an analysis based on a detail. There is a low probability that the average consumer would carry out such an analysis and, in any event, that he would remember it. 39 In addition to the similarity of the silhouettes noted in paragraph 37 above, other elements — of secondary importance — are common to both signs, such as the position of the tail and the fact that the muzzle is open, which accentuate that similarity. Although certain differences referred to by the applicant do exist, specifically the fact that the members of the cat family face in different directions, the tucked forelegs of the animal represented in the applicant’s mark, and, as previously noted, the extension of that animal’s hind legs, are also secondary and, therefore, are not sufficient, in the context of an overall visual assessment, to prevail over the similarities. It must moreover be noted that the Board of Appeal also analysed the signs in respect of their differences, carrying out an evaluation against their similarities in order to appropriately conclude that the marks are visually similar. 40 Accordingly, the assessment of the Board of Appeal that the signs in the present case are visually similar is not incorrect, and consequently the second part of the plea must be rejected. 41 As regards, in the second place, the conceptual comparison, according to the contested decision, both signs convey an identical concept, referring to the representation of a black cat jumping in a manner that conveys an impression of movement. 42 In the third part of its plea, the applicant argues, on the contrary, that the signs at issue are conceptually different. According to the applicant, the earlier mark is identified as a ‘black panther’, whereas the applicant’s mark is identified as an ‘imaginary animal’, a ‘fantasy cat’ or an ‘Arctic cat’. In any event, the possibility that both signs bring to mind jumping, wild cats, as observed by the Board of Appeal, only establishes a vague and weak connection between those signs that is insufficient ground for a conclusion that they are conceptually similar. 43 EUIPO does not accept that this part of the plea is well founded. 44 Conceptual similarity arises from the fact that two marks use images with analogous semantic content (see judgment of 12 November 2015, CEDC International v OHIM — Fabryka Wódek Polmos Łańcut (WISENT VODKA), T‑450/13, not published, EU:T:2015:841, paragraph 125 and the case-law cited), in the sense that those images convey the same idea or the same concept. 45 In that regard, it must be observed that the applicant’s main argument arises in essence from its premiss that the signs at issue are visually different, in particular as regards the species of animal represented, and this premiss has been found above to be incorrect. In the present case, the average consumer of the goods in question is likely to identify a member of the cat family in each of the signs in the present case, without however being able to specify what species of cat it is, as is moreover clear from the Board of Appeal’s finding in paragraph 26 of the contested decision that, objectively, the animals represented do not correspond to a specific species of cat. By contrast, there is nothing to permit the view that that consumer would perceive that only the animal represented in the earlier mark is a representation of a real member of the cat family, as the particular stylisation of the animal represented in the applicant’s mark is not such as to give that animal the appearance of a fantasy or imaginary animal. 46 Moreover, in so far as the concept conveyed by the signs in the present case includes the stance of the represented animals, the jumping position, which conveys an impression of movement, in which they are both represented confirms the conceptual identity of the signs. 47 Accordingly, the finding of the Board of Appeal that the signs in the present case convey an identical concept and are obviously conceptually similar is not incorrect either, and consequently the third part of the plea must also be rejected. The likelihood of confusion 48 On the basis of all its findings on the relevant public, on the comparison of the goods and the comparison of the signs, the Board of Appeal concluded that there is a likelihood of confusion between the marks at issue for the goods in question. In that regard, it considered that the applicant’s claim that the earlier mark has a weak inherent distinctive character in respect of the goods at issue had not been substantiated and, in any event, that that claim was not relevant in the present case in the light of the fact that the signs at issue are obviously conceptually similar. 49 In the context of the fourth part of its plea, the applicant repeats that the earlier mark has a weak inherent distinctive character on account of its limited imaginative content, since the image of a member of the cat family has a laudatory and allusive character as concerns goods in Class 25, and is commonly used in marks covering those goods. It adds that the earlier mark could not be considered to be a well-known mark, precisely because that image is commonly used. Therefore, the existence of conceptual similarity is not sufficient ground to conclude that there is a likelihood of confusion. This is specifically the case here. First, the visual appearance of the marks is particularly important as concerns goods in the clothing sector, irrespective of the fact that they are technical articles of clothing. As it is, the marks at issue are not visually similar. Secondly, in the light of the high level of attention and sophistication of the relevant public, the difference between the signs would indeed be identified and remembered. 50 EUIPO does not accept that this part of the plea is well founded. 51 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 (see judgment of 30 June 2015, La Rioja Alta v OHIM — Aldi Einkauf (VIÑA ALBERDI), T‑489/13, EU:T:2015:446, paragraph 68 and the case-law cited). 52 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). 53 In addition, the degree of distinctiveness of the earlier mark with regard to the goods at issue, which depends on the inherent characteristics of the mark and the knowledge the relevant public has of them (see, to that effect, order of 27 April 2006, L’Oréal v OHIM, C‑235/05 P, not published, EU:C:2006:271, paragraph 36 and the case-law cited), is also a relevant factor which must be taken into consideration (see, to that effect, judgment of 13 December 2007, Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM), T‑134/06, EU:T:2007:387, paragraph 70 and the case-law cited). 54 In that regard, it must be borne in mind that the distinctiveness of an element is affected if it is already commonly used, as such, for the type of goods concerned. Indeed, that element, in that case, loses its ability to enable the consumer to distinguish immediately and with certainty the goods covered by a mark, in so far as it contains that element, from the goods of other undertakings (see, by analogy, judgment of 9 October 2002, Dart Industries v OHIM (UltraPlus), T‑360/00, EU:T:2002:244, paragraph 48). 55 However, the applicant is wrong to argue that the Board of Appeal should have assessed the likelihood of confusion by taking account of the fact that the earlier mark has a weak inherent distinctive character, due to the existence of many registrations of marks containing a representation of members of the cat family in the clothing sector that cover goods in Class 25. Indeed, the relevant factor for the purposes of disputing the distinctive character of an element is its actual presence on the market concerned and not its having been entered in registers or databases (judgment of 8 March 2013, Mayer Naman v OHIM — Daniel e Mayer (David Mayer), T‑498/10, not published, EU:T:2013:117, paragraph 77). Therefore, the Board of Appeal rightly found, in essence, that the applicant had not established the presence on the market of the marks it relied on in order to demonstrate the weak distinctive character of the earlier mark. 56 Furthermore, the indirectly laudatory character that the applicant perceives the representation of a member of the cat family as possessing as concerns sports clothing, by bringing to mind superior physical abilities, strength and aggressiveness, cannot apply to all goods in Class 25. 57 In any event, a finding that the earlier mark has a weak distinctive character does not preclude a finding that there is a likelihood of confusion. Although the distinctive character of the earlier mark must be taken into account in assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Consequently, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see judgment of 12 November 2008, Shaker v OHIM — Limiñana y Botella (Limoncello della Costiera Amalfitana shaker), T‑7/04, EU:T:2008:481, paragraph 56 and the case-law cited). 58 However, the applicant’s premiss that there is no likelihood of confusion between the marks at issue, despite the identity of the goods in question, by reference to paragraphs 24 to 26 of the judgment of 11 November 1997, SABEL (C‑251/95, EU:C:1997:528), is specifically based on the assertion that the signs in the present case are visually different and, at most, slightly similar conceptually — an incorrect assertion in the light of the findings above relating to the comparison of those signs. 59 In addition, it is clear from paragraphs 25 and 26 above that, in the present case, the assessment of the likelihood of confusion must be carried out by taking account of the fact that the relevant public has an average, not high, level of attention. 60 It must therefore be held that, contrary to the applicant’s claim, the Board of Appeal was not incorrect in finding that there was a likelihood of confusion between the marks at issue in the light of the average level of attention of the relevant public, the identity of the goods in question, the visual similarity of the signs concerned, their obvious conceptual similarity and the irrelevance of a phonetic comparison, the earlier mark’s distinctive character being regarded as average. 61 Accordingly, the fourth part of the single plea must also be rejected, and, therefore, the action must be dismissed. Costs 62 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party’s pleadings. 63 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Dismisses the action; 2. Orders Arctic Cat Inc. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO). Pelikánová Nihoul Svenningsen Delivered in open court in Luxembourg on 30 January 2018. E. Coulon I. Pelikánová Registrar President * Language of the case: English.