Judgment;Judgment (extracts);Abstract — ECLI:EU:T:2021:603
Date: 2021-09-22
Language of the case: English
Court formation: Third Chamber
Subject matter: Trade marks;Intellectual, industrial and commercial property
Procedure: Action for annulment - unfounded
Origin: Belgium

JUDGMENT OF THE GENERAL COURT (Third Chamber) 22 September 2021 (*) (1) (EU trade mark – Opposition proceedings – Applications for the EU word mark COLLIBRA and figurative mark collibra – Earlier national word mark Kolibri – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Right to be heard – Second sentence of Article 94(1) of Regulation 2017/1001) In Cases T‑128/20 and T‑129/20, Collibra, established in Brussels (Belgium), represented by A. Renck, I. Junkar and A. Bothe, lawyers, applicant, v European Union Intellectual Property Office (EUIPO), represented by H. O’Neill and V. Ruzek, acting as Agents, defendant, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being Hans Dietrich, residing in Starnberg (Germany), represented by T. Träger, lawyer, ACTIONS brought against two decisions of the First Board of Appeal of EUIPO of 13 December 2019 (Cases R 737/2019-1 and R 738/2019-1), relating to opposition proceedings between Mr Dietrich and Collibra, THE GENERAL COURT (Third Chamber), composed of A.M. Collins, President, Z. Csehi (Rapporteur) and G. De Baere, Judges, Registrar: A. Juhász-Tóth, Administrator, having regard to the applications lodged at the Court Registry on 27 February 2020, having regard to EUIPO’s responses lodged at the Court Registry on 6 May 2020, having regard to the intervener’s responses lodged at the Court Registry on 7 May 2020, having regard to the decision of 2 July 2020 joining Cases T‑128/20 to T‑129/20 for the purposes of the written part and any oral part of the procedure, further to the hearing on 11 March 2021, gives the following Judgment I. Background to the dispute 1 On 1 June 2017, Collibra, the applicant, filed two applications for registration of EU trade marks 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 The trade marks in respect of which registration was sought are: – in Case T‑128/20, the word sign COLLIBRA; – in Case T‑129/20, the figurative sign represented below: 3 The goods and services in respect of which registration was sought are, in Case T‑128/20, in Classes 9 and 42, and in Case T‑129/20, in Class 9 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 9: ‘Data governance software for the purpose of organisation and management of internal data’; – Class 42: ‘Design and development of computer software; computer software consultancy; installation and maintenance of computer software; scientific and technological services and research and design relating to the design and development of computer software; industrial analysis and research services in the field of computer software; all of the above in relation to the data governance and catalogue software for the purpose of organisation and management of internal data’. 4 The trade mark application was published in European Union Trade Marks Bulletin No 2017/113 of 16 June 2017. 5 On 31 August 2017, Mr Hans Dietrich, the intervener, filed two notices of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of all the goods and services referred to in paragraph 3 above. 6 The two oppositions were based, inter alia, on the earlier German word mark Kolibri, filed on 1 July 1999 and registered on 17 October 1999 under No 39938675, covering goods and services in Classes 9, 16, 36, 38, 41 and 42 of the Nice Agreement and corresponding, for each of those classes, to the following goods and services: – Class 9: ‘Programs saved on data carriers (software) for data processing and word processing; programs for data and word processing regarding real estate information systems, Geographic Information Systems (GIS), real property management, building management, facility management and ancillary services, house and/or real estate administration, provision of car parks and underground car parks including the disposition of parking lots; data and word processing programs for public or municipal administration, data and word processing programs for public or municipal administration regarding real estate information systems, building and development charges, real property management, building application procedure, urban land-use planning, building permit procedure, stock data regarding channel and water pipelines, treasury budget accounting, residence registration, civil registry office, cemetery administration, organisation, preparation and conducting of elections, providing of car parks and underground car parks including the disposition of parking lots’; – Class 42: ‘Rental of data and word processing programs; installation and provision of hotlines and help desks for data and word processing in the public and municipal administration; installation and provision of municipal information systems’. 7 The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001). 8 On 28 March and 3 April 2018, the applicant requested in both cases that proof of use of the earlier mark be submitted. 9 On 21 June 2018, the intervener submitted proof of use numbered from OP 1 to OP 50. 10 On 6 February 2019, the Opposition Division upheld the oppositions. 11 On 3 April 2019, the applicant filed two notices of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decisions of the Opposition Division. 12 By decisions of 13 December 2019 (‘the contested decisions’), the First Board of Appeal of EUIPO dismissed the appeals. 13 As regards proof of use, the Board of Appeal upheld the findings of the Opposition Division that genuine use of the earlier mark had been established, in Germany, throughout the reference period, for certain goods in Class 9 and certain services in Class 42, but not for, inter alia, ‘programs saved on data carriers (software) for data processing and word processing’ and ‘data processing programs’. 14 The Board of Appeal found that the goods and services covered by the marks applied for were intended primarily for businesses and other organisations or entities generating and needing to store, access and manage a large amount of data in the field of land, buildings and facilities management. The level of attention of the relevant public was considered to be higher than average. It also noted that the relevant territory was Germany. 15 The Board of Appeal considered that the software products (Cases T‑128/20 and T‑129/20) and services (Case T‑128/20) covered by the marks applied for were similar to the software products for which the earlier mark was used. 16 The Board of Appeal found that the marks at issue were visually similar and phonetically and conceptually highly similar. 17 The Board of Appeal upheld the Opposition Division’s finding that, for the relevant public, consisting of professionals in business and public organisations, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, as regards the marks at issue, in spite of the high level of attention of that public. II. Procedure and forms of order sought 18 The applicant claims that the Court should: – annul the contested decisions; – order EUIPO and the intervener to pay the costs. 19 EUIPO and the intervener contend that the Court should: – dismiss the actions; – order the applicant to pay the costs. III. Law 20 Pursuant to Article 68 of the Rules of Procedure of the General Court two or more cases concerning the same subject matter may at any time, either of the Court’s own motion or on application by a main party, be joined, on account of the connection between them, for the purposes, alternatively or cumulatively, of the written or oral part of the procedure or of the decision which closes the proceedings. 21 In the light of EUIPO’s requests that the present cases be joined, the other parties were heard, after which the cases were initially joined for the written part and the oral part of the procedure, if any, by decision of 2 July 2020. 22 The Court considers it appropriate also to join the present cases for the purposes of the decision which closes the proceedings. 23 In support of its action, the applicant essentially raises two pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation 2017/1001, and the second infringement of the rights of defence laid down in Article 94(1) of Regulation 2017/1001. 24 Given that the date on which the application for registration was filed, namely 1 June 2017, 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, as amended by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Council Regulation (EC) No 207/2009 on the Community trade mark and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21) (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). Furthermore, 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. 25 Consequently, in the present case, so far as concerns the substantive rules, the references made by the Board of Appeal in the contested decisions, by the applicant in its argument, by the intervener and by EUIPO to Article 8(1)(b) of Regulation 2017/1001 must be understood as referring to Article 8(1)(b) of Regulation No 207/2009, as amended, the wording of which is identical. A. Admissibility of the documents produced for the first time before the Court 26 EUIPO maintains that Annex 6 to the applications and Annex 9, attached to the applicant’s replies to the measures of organisation of procedure, must be declared inadmissible on the ground that they are documents submitted for the first time before the Court. 27 The applicant maintains in its submission on whether a hearing should be held and at the hearing that the intervener’s Annexes INT 3 to INT 11 and INT 12 to INT 18 are also inadmissible because they were lodged for the first time before the Court. 28 It should be noted that Annex 6 to the applications consists of extracts from the register of the Deutsche Patent-und Markenamt (German Patent and Trade Mark Office) relating to other trade marks containing the word ‘kolibri’. That document, which was produced for the first time before the Court, cannot be taken into consideration. The purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001, with the result that it is not the Court’s function to review the facts in the light of documents produced for the first time before it. The document referred to above must therefore be excluded, without there being any need to assess its probative value (see, to that effect, judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR AND FELICIE), T‑346/04, EU:T:2005:420, paragraph 19and the case-law cited). It must therefore be declared inadmissible, as must, for the same reasons, Annexes IN 3 to IN 18 of the intervener, and the intervener’s statements based on those documents. 29 The applicant’s Annex 9, attached to its answers to the written questions put by the Court, is an expert’s report drawn up by an information processing systems engineer, intended to assist the Court in the comparison of the goods and services at issue. The applicant claims that that annex should be declared admissible because it concerns a response to a clear distortion of the facts by the Board of Appeal in relation to the assertion that the same undertakings could be responsible for producing the software products under comparison, or the assertion that this is a well-known fact. In that regard, it cites the judgment of 12 September 2007, Koipe v OHIM – Aceites del Sur (La Española) (T‑363/04, EU:T:2007:264, paragraphs 76 and 77). However, that argument must be rejected because, unlike in the case cited, the document was not produced in the first exchange of pleadings, as required by Article 85(1) of the Rules of Procedure, but belatedly, with the answers to the written questions put by the Court. Annex 9 must therefore be declared inadmissible. B. The first plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 30 As a preliminary point, it should be noted that the applicant does not call into question the assessment of the proof of genuine use of the earlier mark in paragraphs 16, 17, 27 and 35 of the contested decisions. Therefore, it is necessary to examine the present action on the basis of the finding that the earlier mark was used, inter alia, for the following goods: – Class 9: programs for data and word processing regarding real estate information systems, Geographic Information Systems (GIS), real property management, building management, facility management and ancillary services, house and/or real estate administration; data and word processing programs for public or municipal administration, data and word processing programs for public or municipal administration regarding real estate information systems, building and development charges, real property management, building application procedure, urban land-use planning, building permit procedure, stock data regarding channel and water pipelines, treasury budget accounting’; – Class 42: ‘installation and provision of hotlines and help desks for data and word processing in the public and municipal administration; installation and provision of municipal information systems’. 31 Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the mark applied for must not be registered 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 mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. Furthermore, under Article 8(2)(a)(ii) of Regulation No 207/2009, ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark. 32 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). 33 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). 34 According to the case-law, 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 at issue (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). 35 As regards the public for the goods and services covered by the marks applied for, the Board of Appeal found, in paragraphs 31 and 32 of the contested decisions, that it was composed primarily of businesses and other organisations or entities generating and needing to store, access and manage a large amount of data in the field of land, buildings and facilities management. It stated that the level of attention of the relevant public would be higher than average and that the relevant territory to be taken into account was Germany given that the earlier mark was German. That definition is not disputed by the parties. 36 The applicant alleges, in the first place, an error of assessment of the degree of similarity of the signs at issue; in the second place, an error of assessment of the degree of similarity of the goods and services at issue; and, in the third place, an error in the global assessment of the likelihood of confusion. 37 EUIPO and the intervener dispute all of those arguments. 1. The comparison of the signs 38 The applicant claims that there were errors of assessment regarding the degree of visual, phonetic and conceptual similarity of the signs at issue. 39 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). 40 According to settled case-law, in general, two marks are similar where, 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 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30 and the case-law cited). (a) The visual comparison 41 As regards the visual comparison, the applicant claims that the Board of Appeal erred in finding that there was an average degree of similarity between the signs; instead, the degree of similarity is, at most, very low. In the applicant’s view, the Board of Appeal disregarded the following: (i) the fact that the marks under comparison differ visually in terms of their first letters, ‘k’ and ‘c’, which, according to settled case-law, are of great importance; (ii) the fact that the marks applied for have an extra ‘l’, which will be noted on account of the high level of attention of the public; (iii) the fact that they are longer than the earlier mark; (iv) the fact that the marks differ in terms of their final letters, ‘a’ and ‘i’; and (v) that those differences will be more easily perceived in the case of short signs, as in the present case. 42 In Case T‑129/20, the applicant adds that the figurative mark applied for contains a stylised font and a figurative element placed at the beginning of the mark which, because of its position and size, will not go unnoticed by the relevant public displaying a high level of attention. The applicant maintains that it is distinctive and has a significant impact on the overall visual impression. 43 The applicant also refers to the fact that the intervener appears not to object to the fact that in Germany there are at least seven other owners of rights registered in respect of the kolibri sign designating software products or related services, as listed in Annex 6 to its application. 44 EUIPO and the intervener dispute those arguments. The intervener argues that the reliance on the other marks listed in Annex 6 is inadmissible. EUIPO maintains that the applicant’s argument is irrelevant. 45 As a preliminary point, it must be recalled that Annex 6 is inadmissible, as stated in paragraph 28 above. Furthermore, EUIPO rightly maintains that the existence of other Kolibri trade marks in Germany or the fact that the intervener did not object to other similar trade marks in the European Union is irrelevant for the purposes of the visual comparison of the marks. 46 Primarily, in the present case, the Board of Appeal did not overlook the case-law according to which the consumer normally attaches more importance to the first part of words (judgment of 17 March 2004, El Corte Inglés v OHIM – González Cabello et Iberia Líneas Aéreas de España (MUNDICOR), T‑183/02 and T‑184/02, EU:T:2004:79, paragraph 81). However, it considered that, from a visual point of view, the word element of the marks applied for reproduced the same series of letters ‘ol’ and ‘ibr’ as the earlier mark, the only differences being the first consonant ‘c’ of the marks applied for compared with the letter ‘k’ in the earlier mark, the additional letter ‘l’ in the middle of the marks applied for and the ending ‘a’ in the marks applied for instead of the ending with the letter ‘i’ of the earlier mark. It concluded that a certain degree of visual similarity arose from the five letters common to the marks at issue, namely ‘o’, ‘l’, ‘i’, ‘b’ and ‘r’. 47 It follows from the foregoing that, in the present case, the Board of Appeal correctly applied the case-law cited in paragraphs 39, 40 and 46 above. Contrary to what the applicant claims, the analysis carried out does not omit any of the visual differences indicated by the applicant. It must be noted, however, as the Board of Appeal did, that those visual differences, namely the three letters in the marks applied for, ‘c’, ‘l’ and ‘a’, do not outweigh the more numerous similarities, since the same sequences of five letters in total, ‘ol’ and ‘ibr’, appear in the marks under comparison. The fact that one of those visual differences concerns the first letter of the marks at issue is not sufficient, in the present case, to offset the overall visual similarity of those marks. Furthermore, visually, the addition of an ‘l’ after an initial ‘l’ in the middle of the words will not particularly attract the attention of the relevant public, even where that public displays a high level of attention. 48 The argument that the differences are more apparent in the case of a short sign must be rejected on the ground that the earlier mark still contains seven letters. Furthermore, although the marks applied for are in fact longer than the earlier mark, it is only by one letter, which will go unnoticed visually. 49 More specifically, with regard to Case T‑129/20, the Board of Appeal described the figurative mark applied for as consisting of a device formed by lines and round dots arranged vertically and horizontally in a circular arrangement, followed by the word ‘collibra’. It added that, according to the case-law, given their excessive simplicity, representations made up of lines and a basic geometric figure, such as a circle, were not inherently capable of conveying a message which consumers would be able to remember. It concluded that the device formed by lines and dots arranged in a circular manner was therefore a mainly decorative and ancillary element to the word element ‘collibra’. It also stated that the lower-case letters of the word element did not confer any distinctive character on it. The Board of Appeal found that the difference introduced by the circular representation was not of particular importance because of its relative simplicity and its decorative function, as well as its colour, and that that element, although taken into consideration, was not dominant in the overall visual perception of the figurative mark applied for. It also referred to settled case-law to the effect that when a mark is composed of word elements and figurative elements, the former are, in principle, more distinctive than the latter, since the average consumer will more readily refer to the goods in question by quoting the name rather than describing the figurative element of the mark. 50 It must be held that that analysis is correct. Contrary to what the applicant claims, the position and size of the figurative element do not make it more distinctive than the word element, even in the eyes of a public with a high level of attention. 51 Furthermore, the applicant’s assertion in Case T‑129/20 that the Opposition Division classified that figurative element as co-dominant and with normal distinctiveness must be rejected, since the Board of Appeal is called upon to carry out a new, full examination of the merits of the opposition, in terms of both law and fact (see, to that effect, judgment of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraphs 56 and 57). In the present case, it is apparent from the reasoning set out in paragraph 49 above that the Board of Appeal overturned those findings of the Opposition Division since it correctly found that that figurative element was not dominant in the figurative mark applied for. As regards the font, it is clearly not striking. 52 The applicant’s arguments must therefore be rejected and the average degree of visual similarity between the marks at issue must be confirmed. (b) The phonetic comparison 53 The applicant claims that there is a very low degree of phonetic similarity. It maintains that the Board of Appeal wrongly concluded that there is no difference between the pronunciation of the double consonant ‘ll’ and the single consonant ‘l’. Moreover, two identical consonants ‘l’ after a single vowel lead to a short pronunciation in the German language of the vowel ‘o’. In addition, the marks applied for end with the vowel ‘a’. Therefore, the marks applied for are pronounced differently from the earlier mark in that they have a long ‘o’ and the vowel ‘i’ at the end. 54 EUIPO and the intervener dispute those arguments. 55 In the present case, the Board of Appeal found that, from a phonetic point of view, although the letter ‘c’ plays only a minor role in the German alphabet, since the letter ‘k’ replaces the letter ‘c’ of equivalent foreign words, the relevant German public, where it sees a word beginning with the letter ‘c’, pronounces that letter as the letter ‘k’ of a German word. Furthermore, it observed that there is no difference in the pronunciation of ‘ll’ and ‘l’. Consequently, the Board of Appeal concluded that the pronunciation of the marks applied for differed from that of the earlier mark solely in terms of the last letter, namely ‘a’, for the marks applied for and ‘i’ in the earlier mark, and that the marks at issue were phonetically similar to a high degree. 56 It should be noted that the fact that the consonant ‘c’ will be pronounced like the consonant ‘k’ by the relevant German public is not disputed. In that regard, the Board of Appeal’s reasoning must be upheld. 57 First, the dispute relates to whether the Board of Appeal erred in stating that the consonants ‘ll’ would be pronounced in the same way as a single ‘l’. However, the applicant does not explain how the pronunciation in question differs. In any event, even if there were a difference in pronunciation of the ‘l’, that difference would be minor and would not affect the outcome of the phonetic comparison. 58 Second, the applicant claims that the Board of Appeal failed to take into consideration the fact that the doubling of the consonant ‘l’ leads to a short pronunciation of the vowel ‘o’, in contrast to the long pronunciation in the earlier mark. However, as EUIPO points out, that explanation is not supported by reference to a specific phonetic rule. In any event, that phonetic difference, if it had been established, would be minimal and would have no effect on the overall phonetic comparison. Accordingly, it must be rejected, and there is no need to rule on the admissibility of that line of argument, which is disputed by the intervener. 59 Third, the phonetic difference resulting from the last letters of the signs at issue was indeed taken into account in the contested reasoning, but, given that the rest of the signs are pronounced in the same way, or almost the same way, the Board of Appeal was right to find that there was a high degree of phonetic similarity rather than that they were identical. (c) The conceptual comparison 60 The applicant claims that the Board of Appeal erred in finding that there was a high degree of conceptual similarity between the marks at issue and maintains, on the contrary, that they are different. 61 The applicant agrees that the earlier mark refers to a hummingbird for the German public. 62 However, it claims that the earlier mark has a second possible meaning, namely that it consists of the acronym of the German expression ‘Kommunale Liegenschaften, Boden – und Raumbezogenes Informationssystem’ (municipal real estate-, floor- and area-related information system). The applicant also puts forward other possible meanings of the marks applied for, namely ‘coll’ referring to ‘collaboration’ and ‘libra’ referring to ‘freedom’ or ‘book’ in Latin, which are different meanings from that of the earlier mark. 63 The applicant disputes the fact that the relevant German consumer may perceive the marks applied for as alluding to a hummingbird and thus to the same concept as the earlier mark. In view of the goods and services covered by the marks applied for, the applicant maintains that it is farfetched to say that the relevant German consumer would consider that ‘collibra’, a wholly fanciful term, refers to a hummingbird. In the present case the marks applied for have no apparent meaning in any EU official language and in particular no meaning in German. The applicant maintains that the case-law confirms that there can be no conceptual similarity between a mark which conveys no apparent meaning and another mark whose word element generally carries actual meaning for the relevant public. 64 The applicant also refers, by analogy, to the judgments of 5 October 2017, Wolf Oil v EUIPO (C‑437/16 P, not published, EU:C:2017:737, paragraph 46), and of 1 June 2016, Mega Brands v EUIPO – Diset (MAGNEXT) (T‑292/12 RENV, not published, EU:T:2016:329, paragraph 29), which considered respectively that the signs CHAMPION and CHEMPIOL and MAGNET 4 and MAGNEXT were conceptually different. 65 EUIPO and the intervener dispute those arguments. 66 It should be borne in mind that marks are conceptually similar when they convey analogous semantic content (see judgment of 1 October 2014, Lausitzer Früchteverarbeitung v OHIM – Rivella International (holzmichel), T‑263/13, not published, EU:T:2014:845, paragraph 62 and the case-law cited). 67 In the present case, first, the Board of Appeal found that the earlier mark could, in German, refer to a hummingbird, which is not disputed. 68 Second, the Board of Appeal noted that, given the proximity in pronunciation of the word ‘collibra’ to the word ‘kolibri’, it cannot be ruled out that a significant part of the German public will perceive an allusion to the concept of a hummingbird in the marks applied for. It therefore concluded that the marks at issue could be regarded as conceptually highly similar for a non-negligible part of the relevant public in Germany. 69 That reasoning appears correct in the light of the case-law to the effect that even if the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details, the fact remains that, when perceiving a word sign, he or she will recognise word elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (see, to that effect, judgments of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 51; of 13 February 2007, RESPICUR, T‑256/04, EU:T:2007:46, paragraph 57; and of 19 September 2012, TeamBank v OHIM – Fercredit Servizi Finanziari (f@ir Credit), T‑220/11, not published, EU:T:2012:444, paragraph 38). The fact that the concept of a hummingbird bears no relation to the goods and services covered by the marks applied for is irrelevant in view of the fact that those marks resemble the German word ‘kolibri’, which is known by a non-negligible part of the German public. 70 None of the applicant’s arguments is capable of invalidating that reasoning. 71 As regards the case-law relied on, according to which there can be no conceptual similarity between a mark which conveys no discernible meaning in any of the languages of the European Union and another mark which carries actual meaning for the relevant public (see judgments of 16 January 2008, Inter-Ikea v OHIM – Waibel (idea), T‑112/06, not published, EU:T:2008:10, paragraph 70 and the case-law cited, and of 21 January 2016, Laboratorios Ern v OHIM – michelle menard (Lenah.C), T‑802/14, not published, EU:T:2016:25, paragraph 45 and the case-law cited), it suffices to note that it is not applicable in the present case since the Board of Appeal was entitled to find that the marks applied for evoked the concept of a hummingbird, as did the earlier mark. 72 The judgments cited by the applicant, referred to in paragraph 64 above, are not applicable on the ground that the signs under comparison in those judgments are different from the signs under comparison in the present case. 73 Finally, the applicant’s arguments that the earlier mark and the marks applied for may have other meanings (see paragraph 62 above) must be rejected on the ground that the alternative meanings suggested by the applicant are too complicated to be understood immediately and without effort by the relevant public, including one that displays a higher-than-average level of attention. In any event, even supposing the likelihood of confusion exists only for a part of the relevant public, that is to say, the non-negligible part consisting of the consumers likely to perceive the signs at issue as referring to the concept of a hummingbird, and not for the part of the public that would perceive the earlier mark as an acronym, such a finding would be sufficient, since it is not necessary to establish that there is a likelihood of confusion for the whole of the relevant public (see, to that effect, judgment of 20 July 2017, Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line), T‑521/15, not published, EU:T:2017:536, paragraph 69 and the case-law cited). 74 Therefore, the Board of Appeal did not err in law in finding that there was a high degree of conceptual similarity between the signs at issue. 2. The comparison of the goods and services (a) The goods in Class 9 75 As regards the comparison of the software products at issue, the applicant criticises the Board of Appeal’s finding that the software products for which the earlier mark was used are similar to an average degree to the software products covered by the marks applied for. 76 In the present case, it must be borne in mind that the software products under comparison are: – ‘data governance software for the purpose of organisation and management of internal data’ covered by the marks applied for, and – ‘programs for data and word processing regarding real estate information systems, Geographic Information Systems (GIS), real property management, building management, facility management and ancillary services, house and/or real estate administration; data and word processing programs for public or municipal administration, data and word processing programs for public or municipal administration regarding real estate information systems, building and development charges, real property management, building application procedure, urban land-use planning, building permit procedure, stock data regarding channel and water pipelines, treasury budget accounting’ for which the earlier mark was used. 77 According to settled case-law, 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 end users, their method of use and whether they are in competition with each other or are complementary. 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). 78 The applicant submits that the software products under comparison are different or, at most, similar to a low degree. It criticises the analysis of the nature, intended purpose, users and production of the software products under comparison. In addition, it claims that they are neither complementary nor in competition. 79 EUIPO and the intervener dispute those arguments. (1) The nature of the software products 80 The applicant criticises the Board of Appeal for automatically reaching the conclusion that the goods are similar while relying solely on the fact that all the goods related to software, in breach of EUIPO’s Trade Marks and Designs Guidelines. 81 However, it is apparent from the Board of Appeal’s reasoning that it did not confine itself to the nature of the goods since it stated, in paragraph 41 of the contested decisions, that the relevant public for the goods at issue and the nature and intended purpose of the software products at issue could coincide, as could the undertakings involved in the design and development of the software products at issue. Therefore, that argument must be rejected. (2) The intended use of the software products 82 The applicant submits that the intended purpose of the software products at issue is very different, as the Opposition Division itself stated. The intended purpose of the software covered by the marks applied for is to ensure internal data governance, the main objective of which is to allow persons within an organisation to search for, locate and verify the reliability of internal data while ensuring regulatory compliance. Although the software products covered by the earlier mark, according to the proof of use, may allow data to be consulted, which, according to the applicant, is a common feature of most software products, their intended purpose is to automate and assist real estate transactions, in particular the drafting of real estate documents, the management of building permits and facilities management. 83 In addition, the applicant disputes paragraph 39 of the contested decisions, which states that the intervener’s document OP 17 shows that the software products covered by the earlier mark also enable users to perform data governance tasks, specifically to ‘create a customise[d] map of [their] key data elements’. The applicant maintains that the documents in the file and document OP 17 do not corroborate this. In its view, the Board of Appeal merely reproduced an unsubstantiated claim made by the intervener. 84 As a preliminary point, the intervener raises the inadmissibility of the applicant’s argument that the software products for which the earlier mark was used were simply intended for the automation of tasks and the drafting of documents. 85 In that regard, it must be noted that, under Article 188 of the Rules of Procedure, the pleadings of the parties cannot change the subject matter of the proceedings before the Board of Appeal. It is for the Court, in the present case, to review the legality of decisions taken by the Boards of Appeal. Consequently, the Court’s review cannot go beyond the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 6 June 2013, Kastenholz v OHIM – Qwatchme (Watch dials), T‑68/11, EU:T:2013:298, paragraph 25 and the case-law cited). Likewise, an applicant does not have the power to alter before the Court the terms of the dispute, as delimited in the respective claims and allegations submitted by itself and by the intervener (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 43). 86 Admittedly, the documents before the Court show that the argument referred to above was not raised as such before the Board of Appeal. That being so, contrary to what the intervener claims, the purpose of the argument raised by the applicant is not to re-examine the factual circumstances of the dispute in the light of factual explanations put forward for the first time before the Court, but constitutes an expansion of its initial arguments during the administrative procedure seeking to establish a difference in the intended purposes of the software products on the ground that, first, the software products covered by the earlier mark are very specific software products used in a specific area of business, in particular in the course of real estate transactions, construction and parcel management, building permits and other construction and real estate sectors, and, furthermore, the software products covering the marks applied for are highly specialised for internal data organisation and governance. That argument must therefore be held to be admissible (see, to that effect and by analogy, judgment of 26 April 2007, Alcon v OHIM, C‑412/05, EU:C:2007:252, paragraph 40). 87 As regards the definition of the creation of a customised map of key data, the admissibility of which is also disputed, it must also be declared admissible on the ground that it constitutes a development of the initial argument before the Board of Appeal, which had already defined that map. In addition, the applicant cannot be criticised for merely responding, in the application, to a point of the Board of Appeal’s reasoning concerning that concept. 88 Primarily, it is necessary to examine the merits of the arguments relating to the comparison of the intended purpose of the software. 89 In the first place, it is necessary to reject the applicant’s assertion that the software products covered by the earlier mark are used only to draft documents and to automate tasks, since it is apparent from the analysis of the proof of use, which, moreover, is not disputed, that the purpose of those software products is not only ‘text processing’ but also ‘data processing’, which may cover a wider range of activities than the mere drafting of documents or the automation of tasks. 90 In the second place, in paragraph 40 of the contested decisions, the Board of Appeal stated that ‘the need for data-related policies, maintaining data integrity and its trustworthiness, and ensuring regulatory standards are met’ was equally of relevance to the field of real estate transactions (acquisition, sale, hereditary building rights, concession contracts), as to the field of administration of buildings, such as leasing and rental of properties, building and facilities management. It considered that entities in the public sector, like any private organisation, would need to enforce ‘data related policies, maintain data integrity, and ensure that regulatory standards were met’ in relation to applications for building permits and in the administration and management of facilities. 91 In paragraph 40 of the contested decisions, the Board of Appeal did not compare the intended purposes of the software products at issue, nor did it explain how the software products covered by the earlier mark had the same objectives as data governance software, contrary to EUIPO’s assertion. By contrast, the Board of Appeal, in that paragraph implicitly defined data governance as ‘[the implementation] of data-related policies, [maintaining] data integrity and reliability [and] compliance with regulatory standards’, a definition which the parties do not dispute. 92 In the third place, it should be noted that the only comparison of the intended purposes of the software products at issue by the Board of Appeal is made in paragraph 39 of the contested decisions, which reads as follows: ‘The organisation and management of internal data which is described in the specification of the mark[s] applied for is also a feature of the [intervener’s] software. For instance the [intervener’s] building application software (OP 17) enables an organisation to create a customised map of its key data elements: file flows, specialist departments, individual tasks and allocation of tasks.’ 93 It was therefore only in paragraph 39 of the contested decisions that the Board of Appeal found, in essence, that the ‘data processing’ and ‘text processing’ carried out by the software products covered by the earlier mark involved the same characteristics of ‘organisation and management of internal data’ as the ‘data governance software for the purpose of organisation and management of internal data’ covered by the marks applied for. It was in that regard, and only in paragraph 39 of the contested decisions, that the Board of Appeal found that the software products overlap, based on the existence of common characteristics of the software products at issue, namely that they all enabled internal data to be organised and managed. In that regard, it should be noted that the intervener is wrong to claim that the applicant admitted that there were overlaps between the software products under comparison during the administrative procedure. The comments to which the intervener refers, which allegedly acknowledge such overlaps, are in fact derived from that party’s own written pleadings, and not those of the applicant. 94 It must be confirmed that the ‘data processing’ concerning real estate covered by the earlier mark requires the features of organisation and management of internal data, which are also present in the software products covered by the marks applied for. In that regard, EUIPO and the intervener rightly maintain that the ‘facilities management’ or ‘house and/or real estate administration’ software products covered by the earlier mark generate a large volume of data and incorporate certain functionalities for the organisation and management of those data, functionalities which they share with the ‘data governance’ software products. 95 The existence of an overlap between the intended purposes of those software products is the reason why the Board of Appeal found only an average, rather than a high, degree of similarity in terms of intended purpose. 96 Furthermore, the applicant’s argument that the Opposition Division had stated that the intended purpose of the software products was very different must be rejected. The Opposition Division stated that, although their specific purpose of use was not the same, they were all used, in general, for data processing and, in addition, their method of use (via a computer) was the same. It is therefore also apparent from those decisions that the intended purposes of the software products overlap, in that they all enable data processing to be carried out. 97 In the fourth place, document OP 17, the interpretation of which is contested, is a flyer relating to the intervener’s building application software product, which describes the objectives, functions and interfaces of that software. 98 In paragraph 39 of the contested decisions, referred to in paragraph 92 above, the Board of Appeal found that that document demonstrated, by way of example, that the intervener’s building application software enabled an organisation to create a ‘customised map of its key data elements’, such as file flows, specialist departments, individual tasks and allocation of tasks. However, according to the applicant, that analysis is incorrect. 99 The applicant submits that the creation of a customised map is a key process whereby data governance software creates an organisational index. In its statement of grounds, the applicant had also explained that a ‘customised map of [all] key data elements’ identified, first, where the data were stored (which applications and databases), second, which individuals in the organisation had rights of access to those data, and, third, which individuals controlled the quality and accuracy of those data (referred to as ‘data stewards’). 100 First, it must be observed, as EUIPO itself acknowledges, that the Board of Appeal merely reproduced, in paragraph 39 of the contested decisions, the intervener’s claims as contained in its final observations before the Board of Appeal of 2 August 2019, even though that document does not mention the creation of a customised map of key data. 101 Secondly, it is apparent from the details of document OP 17 that the functionalities of the building permit application software covered by the earlier mark do not correspond, either individually or overall, to the creation of a customised map or index of all the key data of an organisation. 102 However, the statement in paragraph 39 of the contested decisions that the intervener’s building permit application software enables an organisation to create a customised map of its key data elements was used only by way of example and for the sake of completeness. The fact that it is incorrect is therefore not capable of affecting the validity of the Board of Appeal’s reasoning. Therefore, it must be held that the arguments alleging misinterpretation of Annex OP 17, even if they are correct, remain ineffective. 103 In conclusion, all of the applicant’s arguments concerning the degree of similarity between the intended purposes of the software products at issue must be rejected. (3) The users of the software products 104 The applicant submits that, even if the two types of goods may be used by the same organisation, that is to say a municipality or a private company, they are chosen, purchased and used by different specialised professionals, with different roles within their organisation, for example a data analyst or ‘data officer’, on the one hand, and a facilities or real estate manager, on the other. In that respect the applicant maintains that the professionals who choose the respective software products are not the same. 105 In the present case, the Board of Appeal found in paragraph 41 of the contested decisions that, as the Opposition Division had rightly held in its decisions, the relevant public for the goods at issue could coincide. It should be noted that, before the Opposition Division and the Board of Appeal, the applicant had claimed that the software products at issue were addressed to different groups of users, on the ground that the software products covered by the marks applied for were intended only for large undertakings interacting with high volumes of data and for seeking data governance solutions, while those covered by the earlier mark were aimed mainly at public authorities, municipalities, towns and public localities, which sought software products for specific purposes relating to the property or building sector. The Opposition Division and the Board of Appeal rejected that argument and found that the relevant public overlapped in that the software products of the marks applied for could be used by any entity handling internal data, be it an undertaking of a certain size or a public authority or body, whereas the software products for which the earlier mark was used could be used not only by municipal or public authorities but also by private companies (decisions of the Opposition Division, p. 9 and the contested decisions, paragraphs 36 to 38). 106 It must be stated that neither the decisions of the Opposition Division nor the contested decisions express a view on the argument summarised in paragraph 104 above, given that that argument was not formulated as such before them. Although, in its statement of grounds for the appeal, the applicant had stated that its software was purchased by a ‘chief data officer’, that is to say, by a professional buyer responsible for an organisation’s data management, this was only in order to ask the Board of Appeal to assess the similarity of the marks through the perception of a professional displaying a high level of attention. 107 That line of argument, which was raised for the first time before the Court, must therefore be declared inadmissible in accordance with the case-law cited in paragraph 85 above. (4) The software production companies 108 The applicant disputes the reasoning and validity of the finding, in paragraph 41 of the contested decisions, that the ‘same undertakings could be responsible for the design and development of both data governance software and data processing programs in the real estate and facilities management’. The applicant maintains that in view of the very different purpose of each highly specialised software product requiring specialist background knowledge, it would be extremely unlikely for the same undertaking to produce both types of software. The applicant stresses that the intervener never adduced any evidence to show that it had itself entered the data governance market nor that there exists a single undertaking which manufactures the two types of software at issue in the present case. 109 It is settled case-law that the statement of reasons required by Article 296 TFEU must disclose clearly and unequivocally the reasoning followed by the institution which adopted the measure in question. That duty is intended, first, to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights and, secondly, to enable the Courts of the European Union to exercise their power to review the legality of the decision (see, to that effect, judgment of 21 October 2004, KWS Saat v OHIM, C‑447/02 P, EU:C:2004:649, paragraphs 63 to 65 and the case-law cited). 110 In the present case, the statement of reasons in paragraph 41 of the contested decisions, though succinct, is sufficient to enable the applicant to ascertain the reasons for the measure in order to defend its rights and the Court to exercise its power to review the legality of the contested decisions. 111 As regards the substance, it must be noted, as the intervener and EUIPO assert, that the applicant disputes for the first time before the Court the fact that the undertakings producing the goods under comparison may be the same, even though that finding was already made in the Opposition Division’s decisions. Therefore, the argument summarised in paragraph 108 above must be declared inadmissible in the light of the case-law cited in paragraph 85 above. (5) Complementarity and competition between the software products 112 The applicant also disputes the complementarity and the competitive relationship between the software products at issue. 113 It is sufficient to note that those arguments are ineffective in so far as the Board of Appeal found neither a complementary relationship nor that there was a competitive relationship between the goods and services at issue. Those arguments must therefore be rejected. 114 The applicant’s assertion that other comparison factors could be used, such as the distribution channels, must be rejected, since it is not substantiated. 115 Consequently, given that the nature, the public and the intended purpose of the software products could coincide, as could the undertakings involved in their design and development, the Board of Appeal was right to find that the software products under comparison displayed average similarity. (b) The services in Class 42 116 The applicant claims that the Board of Appeal merely states, without any reasoning, that the services covered by the word mark applied for could be offered by the same undertakings that design the types of software products for which the earlier mark is used. Furthermore, according to the applicant, that fact, which is moreover disputed, is insufficient to conclude that those services and goods are similar. In reality, those services are different from the software products covered by the earlier mark or, at most, similar to a very low degree. 117 EUIPO and the intervener dispute those arguments. 118 As a preliminary point, EUIPO’s assertion that the Board of Appeal endorsed the Opposition Division’s reasoning as regards the comparison between the services covered by the word mark applied for and the services covered by the earlier mark must be rejected. It is apparent from paragraph 41 of the contested decision at issue that the Board of Appeal endorsed the Opposition Division’s reasoning only as regards the relevant public of the software products under comparison, and that it then, in its new, full examination of the merits of the opposition, in terms of both law and fact, compared the services of the word mark applied for with the software products covered by the earlier mark, finding them to be similar. 119 In the present case, in paragraph 41 of the contested decision in Case T‑128/20, the Board of Appeal stated that the ‘same undertakings could be responsible for the design and development of both data governance software and data processing programs in the real estate and facilities management as well as provide after sales maintenance and consultancy including scientific, research and technological services’. It concluded that the services covered by the word mark applied for were similar to the software products covered by the earlier mark. 120 In the first place, although it is indeed very brief, the reasoning is comprehensible and enables the applicant to ascertain the reasons for the finding of similarity between the software products covered by the earlier mark and the services covered by the word mark applied for, and enables the Court to exercise its power of review as to the legality of that reasoning. 121 In the second place, the Board of Appeal did not err in stating that the real-estate and facilities-management software products covered by the earlier mark and the data governance software products covered by the word mark applied for could be designed and developed by the same undertakings. It should be noted that, in the field of information technology, software manufacturers will also commonly provide software services. Furthermore, as EUIPO observes, in the present case the end users and the manufacturers of the goods and services at issue coincide. The applicant’s arguments in that regard having already been rejected, the Board of Appeal was entitled to conclude that the services covered by the word mark applied for, which all concerned data governance and catalogue software products for the purpose of organisation and management of internal data, were similar to the software products covered by the earlier mark. Furthermore, that reasoning is sufficient to establish a similarity, contrary to what the applicant claims. 3. The likelihood of confusion 122 The applicant submits that, in view of the errors identified in the assessment of the degree of similarity between the signs, on the one hand, and between the goods or between the services and goods, on the other hand, the Board of Appeal did not correctly assess the likelihood of confusion globally. The applicant submits in particular that the conceptual dissimilarity between the signs at issue is capable of counteracting the visual and phonetic similarities. 123 The applicant also submits that visual differences are more important so far as concerns the phonetic comparison, given that the consumer will make a decision after a detailed examination, in particular on the basis of catalogues or the internet. 124 Furthermore, it submits that the Board of Appeal should have taken into consideration the fact that the relevant public displayed a high, or higher-than-average level of attention, in view, first, of the fact that it was composed solely of professionals and, second, of the nature of the goods and services at issue, their price and their technological nature. 125 EUIPO and the intervener dispute those arguments. 126 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). 127 In the present case, the Board of Appeal found, in essence, in both cases that, first, there was an average degree of visual similarity between the marks at issue and a high degree of phonetic and conceptual similarity, second, the goods and services covered by the marks at issue were similar to an average degree and, third, the earlier mark had an inherent distinctive character for goods and services in the field of information technology. It added, in essence, that, in view of those coincidences, a non-negligible part of the relevant public would perceive, in the marks applied for and the earlier mark, the same allusion to the concept of a hummingbird. It concluded that, for the relevant public, consisting of professionals in business and public organisations, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009, despite the high level of attention of that public. 128 In Case T‑129/20, the Board of Appeal added that, in the light of the above, the simple circular figurative element of the mark applied for did not rule out the possibility that a significant part of the relevant public might believe that the figurative mark applied for was another trade mark of the intervener, designating a line of goods intended, for instance, for a non-German-speaking public. Therefore, that element was not sufficient to dispel a likelihood of confusion, even in the eyes of a highly attentive professional public. 129 In the first place, contrary to what the intervener claims, the case-law cited in paragraph 30 of the contested decisions is general case-law which was set out just before finding, in paragraph 31 of the contested decisions, that the public was composed, in the present case, only of professionals. 130 In the second place, it follows from the foregoing that the Board of Appeal did not commit any errors of assessment as regards, first, the comparison of the signs and, second, the comparison of the goods and services. Therefore, the applicant’s arguments referred to in paragraph 122 above must be rejected, including those relating to an alleged conceptual dissimilarity. 131 In the third place, as regards the argument that the visual differences are more important so far as concerns the phonetic comparison, referred to in paragraph 123 above, it must be pointed out that that argument is ineffective in so far as the signs are visually similar and not different. 132 In the fourth place, as regards the argument that the Board of Appeal should have taken into consideration the fact that the relevant public displayed a high level of attention, or a higher level of attention than average, given, first, that it was composed solely of professionals and, secondly, given the nature of the goods and services at issue, their price and their technological nature, it suffices to note that the Board of Appeal referred to the case-law which states that the fact that that public will pay more attention to the identity of the producer or supplier of the product or service that it wishes to purchase does not mean, however, that that public will examine the mark before it down to the smallest detail or that it will compare that mark in minute detail to another mark, and even for a public displaying a high level of attention, it remains the case that the average consumer only rarely has the opportunity to compare the different marks directly, but must rely on his or her imperfect recollection of them (judgment of 3 June 2015, Pensa Pharma v OHIM – Ferring and Farmaceutisk Laboratorium Ferring (PENSA PHARMA and pensa), T‑544/12 and T‑546/12, not published, EU:T:2015:355, paragraph 152). 133 Accordingly, the Board of Appeal was right to find that there was a likelihood of confusion. 134 It follows from the foregoing that the first plea in law must be rejected in its entirety. C. The second plea in law, alleging infringement of the rights of the defence under Article 94(1) of Regulation 2017/1001 135 The applicant submits that one of the main claims that led the Board of Appeal to make a finding of similarity between the goods and services at issue is that the software covered by the earlier mark enabled an organisation to create a customised map of key data elements. In reaching that conclusion, the Board of Appeal relied exclusively on information contained in document OP 17 which was not produced in the language of the case by the intervener. The applicant submits that, although Article 10(6) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1) confers on EUIPO the discretion to decide whether the translation of a document proving use is necessary in order to ensure equality of arms in opposition proceedings, that discretion may be exercised only where the document supporting the claims in question contains clear information, not requiring a detailed examination of the foreign language text. According to the applicant, this is for example when the untranslated documents are self-explanatory or their content is easily understandable. This is, however, not the case in relation to the information contained in document OP 17, which is in German. The applicant submits that, by relying on the German text of document OP 17, the Board of Appeal infringed Article 94(1) of Regulation 2017/1001, in that it made a decision based on evidence on which the applicant did not have an opportunity to present its comments; moreover, that is why the Board of Appeal misinterpreted that item of evidence. 136 EUIPO and the intervener dispute those arguments. 137 According to the second sentence of Article 94(1) of Regulation 2017/1001, EUIPO’s decisions are to be based only on reasons on which the parties concerned have had an opportunity to present their comments. That provision affirms, in EU trade mark law, the general principle of protection of the rights of the defence. Under that general principle of EU law, any person adversely affected by a decision of a public authority must have been afforded the opportunity effectively to make known his or her views before the adoption of that decision. The right to be heard extends to all the matters of fact or of law which form the basis for that decision, but not to the final position which the public authority intends to adopt (see, to that effect, judgments of 17 December 2010, Storck v OHIM (Shape of a chocolate mouse), T‑13/09, not published, EU:T:2010:552, paragraph 52 and the case-law cited, and of 1 June 2016, Grupo Bimbo v EUIPO (Shape of a bar with four circles), T‑240/15, not published, EU:T:2016:327, paragraph 61 and the case-law cited). 138 Moreover, it follows from the case-law that the rights of defence are infringed by reason of a procedural irregularity only in so far as the irregularity actually has an effect on the ability of the undertakings involved in the dispute to defend themselves. Consequently, non-compliance with rules in force whose purpose is to protect the rights of defence can vitiate the administrative procedure only if it is shown that the procedure could have had a different outcome if the rules had been observed (see judgment of 17 December 2010, Shape of a chocolate mouse, T‑13/09, not published, EU:T:2010:552, paragraph 53 and the case-law cited). 139 Article 10(6) of Regulation 2018/625 provides, as regards proof of use: ‘where the evidence supplied by the opposing party is not in the language of the opposition proceedings, [EUIPO] may require the opposing party to submit a translation of that evidence in that language pursuant to Article 24 of Implementing Regulation (EU) 2018/626’. 140 Article 24 of Commission Implementing Regulation (EU) 2018/626 of 5 March 2018 laying down detailed rules for implementing certain provisions of Regulation (EU) 2017/1001 (OJ 2018 L 104, p. 37) provides that ‘unless otherwise provided for in this Regulation or in Delegated Regulation (EU) 2018/625, supporting documents to be used in written proceedings before [EUIPO] may be filed in any official language of the Union’ and that ‘where the language of such documents is not the language of the proceedings as determined in accordance with Article 146 of Regulation (EU) 2017/1001, [EUIPO] may, of its own motion or upon reasoned request by the other party, require that a translation be supplied, within a period specified by it, in that language’. 141 In the present case, the Board of Appeal considered, in paragraph 39 of the contested decisions, that it followed from Annex OP 17, by way of example, that the intervener’s building application software enabled an organisation to create a customised map of its key data elements, such as file flows, specialist departments, individual tasks and allocation of tasks. 142 It is true, as the applicant correctly states, that it is, in principle, necessary for it to be able to understand the content of the evidence of use submitted by the intervener. However, in order to be able actually to exercise its rights of defence with regard to that evidence, it is not necessary for the applicant to be able to understand fully every detail. It is sufficient, in that regard, for a person who has a knowledge of the language of the proceedings before EUIPO to be able to identify and understand the relevant information in the documents (see, by analogy, judgment of 24 January 2017, Rath v EUIPO – Portela & Ca. (Diacor), T‑258/08, not published, EU:T:2017:22, paragraph 21). 143 In the present case, the Board of Appeal reproduced, in paragraph 39 of the contested decisions, the analysis and description of that document as set out in the intervener’s observations of 2 August 2019, in English, the language of the case. Accordingly, the applicant was in a position to understand the content of document OP 17 and could effectively make its point of view known. In addition, it did not request a translation of the document in question. 144 In any event, as EUIPO points out, that document was used only by way of example, for the sake of completeness, and failure to respect the rights of defence is therefore not capable of vitiating the administrative procedure, given that it has not been established that that procedure could have had a different outcome in its absence. 145 The second plea in law must therefore be rejected and, accordingly, the action must be dismissed in its entirety. IV. Costs 146 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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 (Third Chamber) hereby: 1. Joins Cases T‑128/20 and T‑129/20 for the purposes of the judgment; 2. Dismisses the actions; 3. Orders Collibra to pay the costs. Collins Csehi De Baere Delivered in open court in Luxembourg on 22 September 2021. E. Coulon M. van der Woude Registrar President * Language of the case: English. 1 This judgment is published in extract form.