JUDGMENT OF THE GENERAL COURT (First Chamber)
19 September 2017 (*)
(EU trade mark — Opposition proceedings — EU figurative mark RP ROYAL PALLADIUM — Earlier EU word mark RP — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑768/15,
RP Technik GmbH Profilsysteme, established in Bönen (Germany), represented by P.-J. Henrichs, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Schifko, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Tecnomarmi Snc Di Gatto Omar & C., established in Treviso (Italy),
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 14 October 2015 (Case R 2061/2014-2), relating to opposition proceedings between RP Technik and Tecnomarmi,
THE GENERAL COURT (First Chamber),
composed of I. Pelikánová, President, P. Nihoul (Rapporteur) and J. Svenningsen, Judges,
Registrar: X. Lopez Bancalari, Administrator,
having regard to the application lodged at the Court Registry on 28 December 2015,
having regard to the response lodged at the Court Registry on 22 June 2016,
further to the hearing on 26 April 2017,
gives the following
Judgment
Background to the dispute
1        On 20 November 2013, Tecnomarmi Snc Di Gatto Omar & C. filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).
2        Registration as a mark was sought for the following figurative sign:
3        The goods and services in respect of which registration was sought were in, inter alia, Classes 19 and 40 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 corresponded, for each of those classes, to the following description:
–        Class 19: ‘Building materials (non-metallic); non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal; aquaria [structures]; bagasses of cane (agglomerated -) [building material]; alabaster; roof flashing, not of metal; angle irons, not of metal; pantiles; lintels, not of metal; slate; roofing slates; clay; fireclay; potters’ clay; scaffolding, not of metal; reinforcing materials, not of metal, for building; door frames, not of metal; asphalt; masts [poles], not of metal; furrings of wood; balustrading; floating docks, not of metal, for mooring boats; platforms, prefabricated, not of metal; tarred strips, for building; huts; fair huts; crash barriers, not of metal, for roads; bitumen; beacons, not of metal, non-luminous; cask wood; letter boxes of masonry; busts of stone, concrete or marble; cabanas not of metal; paint spraying booths, not of metal; telephone boxes, not of metal; lime; concrete; chimneys, not of metal; gutters (roof -), not of metal; chimney shafts, not of metal; reeds, for building; vaults, not of metal [burial]; mantelpieces; duckboards, not of metal; building paper; building cardboard [asphalted]; wood pulp board, for building; paperboard for building; prefabricated houses [kits]; shuttering, not of metal, for concrete; caissons for construction work under water; coal tar; cement; asbestos cement; magnesia cement; blast furnaces (cement for -); furnaces (cement for -); advertisement columns, not of metal; plywood; water-pipes, not of metal; penstock pipes, not of metal; ducts, not of metal, for ventilating and air-conditioning installations; flashing, not of metal, for building; manhole covers, not of metal; roofing, not of metal; roofing, not of metal, incorporating solar cells; roof coverings, not of metal; cornices, not of metal; grave or tomb enclosures, not of metal; buildings, transportable, not of metal; buildings, not of metal; plate glass [windows], for building; quartz; concrete building elements; asbestos mortar; felt for building; statuettes of stone, concrete or marble; windows, not of metal; chimney cowls, not of metal; geotextiles; chalk (raw -); gypsum; plaster; gravel; aquarium gravel; stair-treads [steps], not of metal; glass granules for road marking; granite; trellises, not of metal; sandstone for building; gutters (street -), not of metal; veneers; bicycle parking installations, not of metal; greenhouse frames, not of metal; fireproof cement coatings; coatings [building materials]; cement slabs; gravestone slabs, not of metal; lighting slabs; paving blocks, not of metal; binding agents for making briquettes; road repair (binding material for -); lumber; mouldable wood; timber (manufactured -); veneer wood; wood for making household utensils; timber (sawn -); wood, semi-worked; laths, not of metal; grout; marble; calcareous marl; clinker ballast; building materials, not of metal; refractory construction materials, not of metal; roads (materials for making and coating -); road coating materials; clay (potters’ -) [raw material]; bricks; mouldings, not of metal, for building; mouldings, not of metal, for cornices; stringers [parts of staircases], not of metal; tombs [monuments], not of metal; monuments, not of metal; mosaics for building; works of art of stone, concrete or marble; olivine for building; stonemasonry (works of -); framework, not of metal, for building; pilings, not of metal; cement posts; posts, not of metal; poles, not of metal, for electric power lines; telegraph posts, not of metal; palings, not of metal; door panels, not of metal; signalling panels, non-luminous and non-mechanical, not of metal; building panels, not of metal; signs, non-luminous and non-mechanical, not of metal, for roads; parquet flooring; skating rinks [structures, not of metal]; floor tiles, not of metal; asphalt paving; wood paving; floors, not of metal; macadam; pitch; tar; porches, not of metal, for building; arbours [structures not of metal]; jalousies, not of metal; tiles, not of metal, for building; stone; artificial stone; limestone; building stone; mooring bollards, not of metal; slag stone; fire burrs; tombstones; rubble; props, not of metal; memorial plaques, not of metal; road marking sheets and strips of synthetic material; chicken-houses, not of metal; slate powder; pigsties; porphyry [stone]; gates, not of metal; folding doors, not of metal; doors, not of metal; perches; bituminous products for building; lengthening pieces, not of metal, for chimneys; joists, not of metal; rocket launching platforms, not of metal; fences, not of metal; bituminous coatings for roofing; facings, not of metal, for building; wainscoting, not of metal; wood panelling; wall claddings, not of metal, for building; wall linings, not of metal, for building; vinyl siding; silver sand; aquarium sand; sand, except foundry sand; staircases, not of metal; roofing shingles; schists; slag [building material]; signs, not of metal (non-luminous and non-mechanical -); tanks of masonry; shutters, not of metal; greenhouses, transportable, not of metal; silica [quartz]; silos, not of metal; ceilings, not of metal; sills, not of metal; slabs, not of metal; stables; foundry moulds [moulds], not of metal; statues of stone, concrete or marble; tombstone stelae, not of metal; blinds [outdoor], not of metal and not of textile; cork [compressed]; parquet floor boards; planks [wood for building]; window frames, not of metal; earth for bricks; terra cotta; tombs, not of metal; partitions, not of metal; diving boards, not of metal; railroad ties, not of metal; beams, not of metal; hips for roofing; scantlings [carpentry]; gutter pipes, not of metal; drain pipes, not of metal; sandstone tubes; branching pipes, not of metal; pipes (rigid -), not of metal [building]; tufa; water-pipe valves, not of metal or plastic; drain traps [valves], not of metal or plastic; swimming pools [structures, not of metal]; bird baths [structures, not of metal]; casement windows, not of metal; chimney pots, not of metal; stained-glass windows; building glass; window glass, for building; window glass, except glass for vehicle windows; alabaster glass; safety glass; insulating glass [building]; aviaries, not of metal [structures]; xylolith; insect screens not of metal’;
–        Class 40: ‘Treatment of materials; abrasion; air freshening; knitting machine rental; food smoking; applying finishes to textiles; silver-plating; custom assembling of materials for others; permanent-press treatment of fabrics; fabric bleaching; window tinting treatment, being surface coating; freezing of foods; food and drink preservation; chromium plating; dressmaking; stripping finishes; decontamination of hazardous materials; air deodorising; destruction of waste and trash; gilding; paper finishing; custom fashioning of fur; fulling of cloth; photocomposing services; photogravure; millworking; metal casting; galvanisation; cloth fireproofing; cloth waterproofing; incineration of waste and trash; engraving; framing of works of art; material treatment information; laminating; leather working; fur conditioning; blacksmithing; skin dressing; saddlery working; firing pottery; woodworking; boiler-making; optical glass grinding; burnishing by abrasion; fur glossing; slaughtering of animals; magnetisation; grinding; flour milling; nickel plating; rental of air conditioning apparatus; rental of space heating apparatus; rental of generators; warping [looms]; cloth edging; planing [saw mill]; cadmium plating; gold-plating; production of energy; air purification; refining services; cloth pre-shrinking; embroidery; recycling of waste and trash; bookbinding; clothing alteration; metal plating; electroplating; soldering; fur satining; sawing [saw mill]; silkscreen printing; dental technician (services of a -); tanning; cryopreservation services; key cutting; sandblasting services; tailoring; dyeing services; sorting of waste and recyclable material [transformation]; glass-blowing; quilting; tin-plating; printing; pattern printing; lithographic printing; offset printing; photographic printing; photographic film development; cloth cutting; timber felling and processing; taxidermy; metal tempering; leather staining; fur dyeing; shoe staining; cloth dyeing; dyeing (textile -); fruit crushing; laser scribing; fur mothproofing; textile mothproofing; metal treating; waste treatment [transformation]; processing of oil; water treating; paper treating; wool treating; cinematographic films (processing of -); colour separation services; cloth treating; crease-resistant treatment for clothing; vulcanisation [material treatment]’.
4        The EU trade mark application was published in Community Trade Marks Bulletin No 46/2013 of 6 March 2013.
5        On 4 June 2013, the applicant, RP Technik GmbH Profilsysteme, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the mark applied for in respect of all the goods in Class 19 referred to in paragraph 3 above and some of the services in Class 40, namely the following services: ‘treatment of materials; abrasion; chromium plating; millworking; metal casting; galvanisation; laminating; grinding; metal plating; electroplating; soldering; metal tempering; metal treating; vulcanisation [material treatment]’.
6        The opposition was based on the earlier EU word mark RP, filed on 21 September 2009 and registered on 27 May 2010 in respect of the following goods and services:
–        Class 6: ‘Metal building materials; profiles; pipes; metallic sheet; building materials and combinations thereof, mainly of metal, in particular profiles, pipes and tubes, boards’;
–        Class 19: ‘Building materials (non-metallic), in particular profiles, pipes and tubes, panels of plastic, wood, stone or glass; facade construction systems in the form of framework or skeleton constructions made from combinations of the aforesaid materials, with doors, windows, hatches or fixed panes and/or panels, and hinges, snap locks, fittings and cover profiles therefor; fences and walls, in particular fire protection walls with doors, windows or hatches’;
–        Class 37: ‘Building construction, namely assembly, installation and construction of facades, windows, doors, walls, fire protection devices or fences, and installation thereof’;
–        Class 40: ‘Manufacturing of elements for facades, windows, doors, walls, fire protection devices or fences’;
–        Class 42: ‘Building construction, namely architectural planning and technical construction of facades, windows, doors, walls, fire protection devices or fences’.
7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009, which states that, upon opposition, the mark applied for may not be registered if there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.
8        On 11 June 2014, the Opposition Division rejected the opposition in its entirety.
9        On 8 August 2014, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.
10      By decision of 14 October 2015 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal, concluding that there was no likelihood of confusion between the marks at issue.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs of the present proceedings and the costs of the proceedings before the Board of Appeal.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
13      In support of its action, the applicant raises a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009, arguing, in essence, that there is a likelihood of confusion between the marks at issue.
14      EUIPO disputes the applicant’s arguments and contends that the single plea in law must be rejected and, accordingly, the action must be dismissed as unfounded.
15      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.
16      According to 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 (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraph 30 and the case-law cited).
17      According to that 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, GIORGIO BEVERLY HILLS, T‑162/01, EU:T:2003:199, paragraphs 31 and 32 and the case-law cited).
Relevant territory
18      The Board of Appeal considered, without being contradicted on that point by the parties, that the likelihood of confusion was to be assessed having regard to the territory of the European Union.
19      That finding must be upheld, since the opposition which has given rise to the present dispute is based on an EU trade mark (see, to that effect, judgment of 9 April 2014, EI du Pont de Nemours v OHIM — Zueco Ruiz (ZYTeL), T‑288/12, not published, EU:T:2014:196, paragraph 23).
The relevant public and its degree of attentiveness
20      The Board of Appeal considered that the relevant public comprised professionals in the building sector and part of the general public, namely DIY enthusiasts. According to the Board of Appeal, those two categories of addressee have a high level of attention when purchasing the goods and services in question.
21      For its part, in paragraph 23 of the application the applicant concedes that, as indicated by the Board of Appeal, professionals in the building sector and DIY enthusiasts have a high level of attention when purchasing the goods in question.
22      However, in the same paragraph of that application, it challenges the idea that the relevant public is limited to those two categories of consumer. The applicant considers that the mark applied for covers categories of goods and services that are aimed at the general public and not only at the consumers identified by the Board of Appeal. It maintains that the general public does not have a high degree of attentiveness when purchasing the goods and services in question.
23      In that regard, it should be noted that the applicant does not put forward any arguments or evidence in its written pleadings establishing that the Board of Appeal’s findings are incorrect. In particular, it does not establish that, as it claims, the goods and services in question are intended for the general public.
24      The designation of the goods and services covered by the marks at issue shows, in itself, that those goods and services have a certain technical dimension that is not compatible with ordinary usage by ordinary consumers.
25      In addition, the applicant indicated at the hearing that, assuming that the definition of the relevant public must be that used by the Board of Appeal, it would be necessary to take a low level of attention into account when assessing the mark applied for. The applicant considers that professionals in the building sector and DIY enthusiasts do not have a high degree of attentiveness when choosing the goods or services in question.
26      In that regard, it must be found that that argument put forward by the applicant at the hearing contradicts what it argued in its application, where, as indicated in paragraph 21 above, it accepted the Board of Appeal’s assessment as regards the high degree of attentiveness of professionals in the building sector and DIY enthusiasts. As the defendant did not have the opportunity to examine that argument during the written part of the procedure, it must be rejected as having been raised out of time (see judgment of 23 September 2009, Phildar v OHIM — Comercial Jacinto Parera (FILDOR), T‑99/06, not published, EU:T:2009:346, paragraph 54).
27      Even assuming that it could be regarded as admissible, the argument would have to be rejected, in any event, as unfounded. Professionals in the building sector and DIY enthusiasts have a high degree of attentiveness at the time of purchase, because of the specialised nature of the goods and services in question and, so far as professionals are concerned, their responsibilities.
28      It follows from the foregoing that the Board of Appeal’s findings regarding the relevant public and the level of attention associated therewith do not contain any errors liable to render them invalid.
Comparison of the goods and services
29      According to settled case-law, in assessing the similarity of the goods or services in question, all the relevant factors relating to those goods or services should be taken into account (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23; see also 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).
30      Following the Opposition Division’s approach in that regard, in paragraph 22 of the contested decision the Board of Appeal considered that some of the goods and services covered by the mark applied for were identical to the goods and services covered by the earlier trade mark on which the opposition was based.
31      For reasons of economy of procedure, the Board of Appeal did not carry out a full analysis in that respect but stated that its assessment was based on the premiss that all the goods and services covered by the mark applied for were identical to those designated by the earlier trade mark.
32      The Board of Appeal’s findings in that regard, which are not disputed by the applicant, may be upheld by the Court.
The marks at issue
33      In the present case, the signs to be compared are the following:
Earlier trade mark
Mark applied for
RP
34      The earlier trade mark is a word mark comprising the capital letters ‘R’ and ‘P’ placed side by side on a single line.
35      The mark applied for is a figurative sign representing a vertical black rectangle with a golden motif including the capital letters ‘R’ and ‘P’, placed side by side with a slight displacement, and, underneath, the expression ‘royal palladium’, written in capitals but in a smaller typeface than the word element ‘rp’.
36      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 that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
37      Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole. This does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited).
38      It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42).
39      That could be the case where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
40      In the case before it, the Board of Appeal considered that, visually and phonetically, the signs at issue were, at most, similar to a low degree and that they were conceptually dissimilar.
The distinctive and dominant elements of the marks at issue
41      In order to analyse the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (judgment of 13 June 2006, Inex v OHIM — Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35 and the case-law cited).
42      In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 13 June 2006, Inex v OHIM — Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35; judgment of 13 December 2007, Cabrera Sánchez v OHIM — Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 51; see also, by analogy, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraphs 22 and 23).
The shared word element ‘rp’
43      In the present case, it should be observed that, in the earlier trade mark, the letter group ‘rp’ constitutes the mark itself. That mark contains no other word or figurative elements.
44      By contrast, in the mark applied for, the word element ‘rp’ exists alongside other elements, namely the expression ‘royal palladium’ and a figurative element described by the applicant as being in the shape of a square pattern. According to the Board of Appeal, the fact that it exists alongside other elements does not alter the impact which must be attributed to the word element ‘rp’. It states that that element is dominant within the mark applied for as a result of the size of the letters used and the position of that element.
45      That assessment by the Board of Appeal, which is not disputed by the parties, must be upheld.
The expression ‘royal palladium’ of the mark applied for
46      The Board of Appeal considers that the marks at issue differ as a result, in particular, of the presence of the expression ‘royal palladium’ in the mark applied for. It considers that that expression will not go unnoticed by the relevant public. As it is not negligible, that expression precludes a likelihood of confusion between those marks.
47      That approach is criticised by the applicant, which submits that the words ‘royal palladium’ must be regarded as negligible. Represented at the bottom of the square element, in a much smaller typeface, they could be perceived as a horizontal line forming part of a technical profile.
48      EUIPO disputes the applicant’s argument.
49      In that regard, it should be noted that the expression ‘royal palladium’ comprises two clearly visible words. Those words may be associated with the word element ‘rp’ below which they are situated, as that word element may be perceived as the abbreviation of those words. It follows that the expression ‘royal palladium’ is not negligible and that it will be perceived by the relevant public as having a certain significance within the mark applied for, as was indicated by the Board of Appeal in paragraph 30 of the contested decision.
50      The applicant submits, however, that the expression ‘royal palladium’ is situated in the lower part of the sign in question and not in the middle. That position renders the expression less visible and undermines the analysis presented by the Board of Appeal.
51      In that regard, it should be noted that the position of the expression ‘royal palladium’ could be decisive if it were necessary for that expression to be dominant within the mark applied for. That is not the situation in the present case, given that the question is simply whether that expression will be perceived by the relevant public as having a certain significance or whether it is negligible.
52      For those reasons, it is necessary to endorse the Board of Appeal’s finding that, even if the word element ‘rp’ occupies a dominant position within the mark applied for, the expression ‘royal palladium’ is not negligible in the overall impression given by that mark and must, therefore, be taken into consideration in the comparison of the marks at issue.
The figurative element of the mark applied for
53      The applicant considers that the golden square pattern in the mark applied for is reminiscent of a cross-section of a standard profile in the building sector. It submits that, on that basis, that figurative element is descriptive of the goods and services covered by the mark applied for. As a result of that descriptiveness, the square pattern may not be regarded as the dominant element within the mark applied for.
54      In that regard, it should be noted that the question that arises during the assessment of a composite trade mark containing a dominant element is whether the other elements appearing in that mark are negligible.
55      In the present case, it must be held that, owing to its shape, its golden colour, and the fact that it completely surrounds the dominant word element ‘rp’, the square pattern which appears in the mark applied for cannot be regarded as negligible in the overall impression given by that mark.
56      Accordingly, the arguments put forward by the applicant in that regard must be rejected.
Comparison of the signs
57      In the light of the foregoing considerations concerning the figurative element and the word elements ‘royal palladium’ and ‘rp’, it is necessary to examine whether the Board of Appeal was entitled to consider that the marks in question were visually, phonetically and conceptually dissimilar or, at most, similar to a low degree.
Visual comparison
58      In the contested decision, the Board of Appeal considered that the signs were, at most, visually similar to a low degree.
59      The applicant disputes that assessment, arguing, in essence, that, in view of its dominant character, the word element ‘rp’ is the only element that should be taken into consideration in the context of the visual comparison. As it is common to the marks at issue, the presence of that element means that there is a likelihood of confusion between those marks.
60      That argument is disputed by EUIPO.
61      In their written pleadings, the parties do not dispute that the marks at issue share the word element ‘rp’, that that element is dominant and that the two marks differ due to the presence of the element ‘royal palladium’ and the figurative element in the mark applied for.
62      In that regard, it should be noted that assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. Such a comparison must involve the marks being examined as a whole. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (see, to that effect, judgment of 24 November 2016, CG v EUIPO — Perry Ellis International Group (P PRO PLAYER), T‑349/15, not published, EU:T:2016:677, paragraph 44 and the case-law cited).
63      It follows from paragraphs 49 to 52 above that, even though it is not displayed in big letters and appears at the bottom of the sign in question, the expression ‘royal palladium’ in the mark applied for will not go unnoticed by the relevant public and will constitute a differentiating factor between the marks at issue.
64      The same conclusion applies, as indicated in paragraph 55 above, concerning the golden square pattern in the mark applied for.
65      Accordingly, the Board of Appeal was entitled to conclude in the contested decision that there was, at most, a low degree of visual similarity between the marks at issue.
66      Therefore, the arguments put forward by the applicant in that regard must be rejected.
Phonetic comparison
67      The Board of Appeal considered that, in order to refer to the earlier trade mark, the relevant public would pronounce only the two letters constituting that mark, that is, ‘r’ and ‘p’. For its part, the mark applied for would be referred to using either the expression ‘royal palladium’ or the expression ‘rp royal palladium’, given that the element ‘rp’ would not be dissociated from the words ‘royal palladium’. From that observation, the Board of Appeal concluded that the marks before it would be pronounced differently. Those marks would therefore be phonetically dissimilar or, in any event, similar to a low degree.
68      That position is criticised by the applicant, according to whom the mark applied for will be referred to by part of the relevant public using the letter group ‘rp’. According to the applicant, the use of that abbreviated form to refer to the mark applied for stems from the dominant character of the word element ‘rp’.
69      EUIPO disputes the applicant’s arguments.
70      In that regard, it should be observed that the earlier trade mark contains only two letters and two syllables. For its part, the mark applied for comprises two letters and two additional words, making eight syllables. So far as pronunciation is concerned, those characteristics inevitably give rise to differences in terms of tone and rhythm.
71      It is necessary to add to those observations the fact that, as can be seen from paragraph 52 above, the expression ‘royal palladium’ which appears in the mark applied for cannot be regarded as negligible. It will not go unnoticed by the relevant public. It forms part of the pronunciation when the mark applied for is read aloud.
72      In its written pleadings, however, the applicant indicates that the Board of Appeal itself conceded that the mark applied for was sometimes referred to using the letter group ‘rp’.
73      In that regard, it should be noted that it is true that, in paragraph 31 of the contested decision, the Board of Appeal states, as the applicant emphasises, that ‘it may ... occur’ that ‘a part of the relevant public’ will refer to the mark applied for using only the letter group ‘rp’. In so doing, it introduces into its reasoning the possibility that not all of the public under consideration will refer to the mark applied for by including the expression ‘royal palladium’.
74      However, that possibility, which is introduced at the stage of the phonetic comparison in the contested decision, does not appear in the global assessment which is carried out by the Board of Appeal at the end of its analysis concerning the comparison of the marks and the likelihood of confusion. Indeed, at that final stage of the analysis, the Board of Appeal contents itself with noting, in paragraph 38 of the contested decision, that any likelihood of confusion may be excluded, having regard to the low degree of phonetic similarity between the signs in question, at least from the perspective of a part of the relevant public.
75      In so doing, the Board of Appeal failed to state, at the stage of the global assessment, all the implications of the findings it had itself made when comparing the marks phonetically.
76      However, that circumstance cannot entail the annulment of the contested decision. It can be seen from paragraphs 70 and 71 above that the expression ‘royal palladium’ is not negligible within the mark applied for. Not being negligible, that expression will not go unnoticed by the relevant public. Phonetically, the mark applied for will be referred to using all the word elements of which it is composed. Therefore, the Board of Appeal was entitled to conclude that, taken as a whole, the marks at issue were phonetically dissimilar or, at most, similar to a low degree.
77      Accordingly, the applicant’s argument that the marks at issue are phonetically similar must be rejected.
Conceptual comparison
78      In its written pleadings, the applicant submits that the expression ‘royal palladium’ in the mark applied for will go unnoticed due to its size and its position. Thus, the main difference between the marks at issue will escape the relevant public’s attention. As a result, the relevant public will perceive only the element shared by those marks, namely the word element ‘rp’, which is conceptually neutral. It follows that the marks at issue should be regarded as being conceptually neutral.
79      In that regard, it should be noted that, as the Board of Appeal correctly states in the contested decision, the relevant public will not ascribe any meaning to the earlier trade mark, given that that mark comprises only two letters, namely the letters ‘r’ and ‘p’.
80      The same cannot be said of the mark applied for, which comprises the words ‘royal’ and ‘palladium’, both of which may have several meanings.
81      In that regard, in paragraphs 29 and 32 of the contested decision the Board of Appeal indicates that the term ‘royal’ may be understood by the English-speaking part of the relevant public as referring to something of ‘quality’ or something ‘above the usual or normal in standing’. As for the term ‘palladium’, it would be interpreted by that same part of the relevant public as referring to a metal with atomic number 46.
82      In paragraph 38 of the contested decision, the Board of Appeal indicates, in the same vein, comparing the marks globally, that, ‘at least from the perspective of a part of the relevant public’, the marks before it are, inter alia, conceptually dissimilar.
83      On the basis of those considerations, it concludes in the same paragraph of that decision that there is no likelihood of confusion between those marks.
84      That reasoning shows that the Board of Appeal concluded that there was no likelihood of confusion, relying on the perception of only a part of the relevant public, namely — to use its own words — the English-speaking part of that public. In so doing, it drew inferences, at the final stage of the analysis, that went beyond its own findings.
85      However, that circumstance cannot entail the annulment of the contested decision either. Contrary to the Board of Appeal’s findings, the two terms appearing in the expression ‘royal palladium’ can in fact be interpreted in a way that has meaning for the whole of the relevant public.
86      Thus, according to case-law, the term ‘royal’ is perceived, within the European Union, as an ordinary, descriptive term which is evocative of the monarchy and, more generally, of luxury and magnificence (judgment of 15 February 2007, Bodegas Franco-Españolas v OHIM — Companhia Geral da Agricultura das Vinhas do Alto Douro (ROYAL), T‑501/04, not published, EU:T:2007:54, paragraph 48).
87      Moreover, the term ‘palladium’ is of a technical nature and is used in the same way, in the European Union, within the building and DIY communities, to refer to the type of metal to which the Board of Appeal makes reference in the contested decision.
88      It therefore appears that the mark applied for has a meaning from the perspective of the relevant public, whereas the earlier trade mark, comprising only the letters ‘rp’, has no meaning.
89      On that basis, the Board of Appeal was entitled to consider, without making any error of assessment, that the marks in question were conceptually dissimilar.
90      Therefore, the arguments put forward by the applicant in that regard must be rejected.
Likelihood of confusion
91      According to case-law, a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account. For example, a low degree of similarity between the goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17).
92      In the contested decision, the Board of Appeal considered that, since the signs in question, taken as a whole, conveyed different impressions to the relevant public, there was no likelihood of confusion, even in respect of identical goods and services.
93      In that regard, it should be pointed out that the assessment carried out by the Board of Appeal leads to the conclusion that there is a low degree of visual similarity, a low degree of phonetic similarity, and a certain conceptual dissimilarity between the two marks.
94      Furthermore, the mark applied for contains figurative elements, whereas the earlier trade mark simply comprises the letters ‘rp’.
95      It follows from the foregoing that, taking account of, inter alia, the high degree of attentiveness of the relevant public, the low degree of visual and phonetic similarity and the lack of conceptual similarity, the Board of Appeal was entitled to find, relying on the premiss that the goods and services concerned were identical, that there was no likelihood of confusion between the signs in question for the purposes of Article 8(1)(b) of Regulation No 207/2009.
96      Accordingly, the single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009 must be rejected as unfounded, and the present action must be dismissed in its entirety.
Costs
97      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
98      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders RP Technik GmbH Profilsysteme to pay the costs.
Pelikánová
Nihoul
Svenningsen
Delivered in open court in Luxembourg on 19 September 2017.
E. Coulon
S. Frimodt Nielesen
Registrar
President
*      Language of the case: English.