JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
22 November 2018 (*)
(EU trade mark — Opposition proceedings — Application for EU word mark FEMIVIA — Earlier EU word mark FEMIBION INTIMA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑59/18,
Endoceutics, Inc., established in Quebec (Canada), represented by M. Wahlin, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Lukošiūtė, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Merck KGaA, established in Darmstadt (Germany),
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 27 November 2017 (Case R 280/2017-2), relating to opposition proceedings between Merck and Endoceutics,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, I. Labucka (Rapporteur) and I. Ulloa Rubio, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 5 February 2018,
having regard to the response lodged at the Court Registry on 14 May 2018,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 6 August 2014, the applicant, Endoceutics, Inc., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2        The trade mark for which registration was sought is the word mark FEMIVIA.
3        The goods in respect of which registration was applied for are in Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Pharmaceutical preparations for the prevention and treatment of breast and uterine cancer, Alzheimer’s disease, medical conditions related to menopause, bone loss, muscle loss, type 2 diabetes, fat accumulation, osteoporosis, hot flushes, skin atrophy, memory loss, and cognition loss’.
4        The EU trade mark application was published in Community Trade Marks Bulletin No 176/2014 of 19 September 2014.
5        On 19 December 2014, Merck KGaA filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46(1) of Regulation 2017/1001) to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6        The opposition was based, inter alia, on the EU word mark FEMIBION INTIMA, registered on 20 May 2011 under No 9349 051, designating, inter alia, ‘pharmaceutical preparations’ in Class 5.
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 9 December 2016, the Opposition Division upheld the opposition in its entirety.
9        On 7 February 2017, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Opposition Division.
10      By decision of 27 November 2017 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal. It found, in essence, that there was a likelihood of confusion as regards the mark applied for and the EU word mark FEMIBION INTIMA on the part of the Spanish-speaking section of the relevant public. In particular, the Board of Appeal found that the goods covered by the marks at issue were identical, and that the signs at issue had an average degree of similarity visually and phonetically, and a certain degree of conceptual similarity. As regards, in particular, the prefix ‘fem’, common to the signs at issue, it held that it will be understood by the Spanish-speaking public as being an abbreviation of the Spanish word ‘femenino’, which describes the intended purpose for the goods at issue and has a weak distinctive character for them. However, according to the Board of Appeal, despite its weak distinctive character, the prefix ‘fem’ should not be neglected. As regards the element ‘intima’, the Board of Appeal considered that its distinctive character for the goods covered by the earlier mark was weak or even non-existent.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs incurred by it in the proceedings before EUIPO and before the Court.
12      EUIPO contends that the Court should:
–        dismiss the application;
–        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 2017/1001.
14      The applicant submits that there is no likelihood of confusion in the present case and criticises the Board of Appeal for not having carried out a global assessment of the signs at issue. In essence, it submits (i) that the signs at issue are not similar, (ii) that the element common to the signs at issue, namely the series of letters ‘femi’, has a weak distinctive character and is not sufficient to conclude that the signs at issue are similar, (iii) that the Board of Appeal took insufficient account of the high level of attention of the relevant public and (iv) that the earlier mark as a whole has a weak distinctive character.
15      EUIPO disputes the applicant’s assertions.
16      Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for may 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 two 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.
17      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 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, 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).
18      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, 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).
19      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca(VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
20      The present action must be examined in the light of the abovementioned principles.
The relevant public
21      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 in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
22      In the present case, the Board of Appeal found, in paragraph 17 of the contested decision, that the relevant public for the goods at issue was that of the European Union. However, relying on the case-law cited in paragraph 19 above, for reasons of procedural economy, the Board of Appeal focused on the Spanish-speaking public of the European Union, as did the Opposition Division.
23      As to the composition of that public and its level of attention, the Board of Appeal confirmed, in paragraph 18 of the contested decision, the position of the Opposition Division according to which, on the one hand, it consists of both the average consumer and professionals in the medical and pharmaceutical sectors and, on the other hand, that public will have a high level of attention.
24      The considerations set out in paragraphs 22 and 23 above, which have not been challenged by the applicant, are correct and must be upheld. The applicant criticises, however, the Board of Appeal for failing to take into account the high level of attention of the relevant public. This complaint will be examined in the context of assessing the likelihood of confusion.
The comparison of the goods
25      As regards the comparison of the goods in question, like the Opposition Division, the Board of Appeal found, in paragraph 19 of the contested decision, that the ‘pharmaceutical preparations’ covered by the earlier mark included all the goods covered by the mark applied for and, as a result, had to be considered to be identical.
26      That finding, which is moreover not disputed by the applicant, is correct and must be upheld.
The comparison of the signs
27      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).
28      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, which 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). 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 (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 42). That could be the case, in particular, 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).
29      In the present case, it is necessary to compare the two word signs FEMIVIA and FEMIBION INTIMA.
30      The applicant submits, in essence, that, since the element ‘femi’, common to the signs at issue, is devoid of any distinctive character, it has no bearing on the degree of similarity between the signs, which include other elements, namely ‘bion intima’ in the earlier mark and ‘via’ in the mark applied for, which are different visually, phonetically and conceptually.
The distinctive elements of the signs at issue
31      As regards, first, the distinctive character of the prefix ‘fem’, common to both of the signs at issue, the Board of Appeal, taking into account the fact that it had a weak distinctive character for the goods at issue on account of its character as descriptive of the intended purpose of those goods, held, in paragraph 26 of the contested decision, referring to paragraph 35 of the judgment of 16 July 2014, Endoceutics v OHIM — Merck (FEMIVIA) (T‑324/13, not published, EU:T:2014:672), that this fact does not mean that the prefix cannot be taken into account when comparing the signs.
32      The applicant claims that, because of its weak distinctive character for pharmaceutical goods, the element ‘femi’ should not affect the degree of similarity between the signs. The applicant refers to EUIPO’s examination guidelines which state that a coincidence only in non-distinctive components does not lead to likelihood of confusion.
33      In that regard, it should be borne in mind that the weak distinctive character of one element of a mark does not necessarily mean that that element will not be taken into consideration by the relevant public. Thus, it cannot be excluded that because, in particular, of its position in the sign or its length, such an element holds an autonomous position in the overall impression conveyed by the mark in question in the perception of the relevant public. On the other hand, despite its weak distinctive character, a descriptive element of a trade mark is likely to attract the attention of the relevant public because of its length and its position at the beginning of that mark (see judgment of 20 November 2017, Stada Arzneimittel v EUIPO — Urgo recherche innovation et développement (Immunostad), T‑403/16, not published, EU:T:2017:824, paragraph 26 and the case-law cited).
34      In the present case, it must be held that the element ‘fem’ will be understood by the Spanish public as referring to the word ‘femenino’, meaning ‘feminine’ in Spanish, and therefore describes the purpose of some of the pharmaceutical products covered by the marks at issue, namely those intended to treat typical medical conditions related to menopause. However, in accordance with the case-law cited in paragraph 33 above, the Board of Appeal rightly considered that, in the present case, it should be taken into account when assessing the similarity of the signs, contrary to the applicant’s claims. The element ‘fem’ is likely to attract the attention of the relevant public, in particular, because of its position at the beginning of the mark.
35      As regards the applicant’s references to EUIPO’s examination guidelines, it should be noted that they are not binding legal acts for the purpose of interpreting provisions of EU law (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48). Moreover, to the extent that the decisions, which the EUIPO Boards of Appeal are called on to take under Regulation 2017/1001, are adopted in the exercise of circumscribed powers and are not a matter of discretion, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union (judgment of 19 January 2012, OHIM v Nike International, C‑53/11 P, EU:C:2012:27, paragraph 57).
36      As regards, secondly, the element ‘intima’ in the earlier mark, the Board of Appeal endorsed, in paragraph 28 of the contested decision, the Opposition Division’s finding that it would be perceived by the Spanish-speaking public as meaning ‘intimate, close or personal’ and would be perceived as indicating that the goods in question are intended for very personal or intimate use.
37      Taking into account the nature of the goods at issue, namely pharmaceutical products which may be used for the prevention and treatment of medical conditions related to the menopause, this element, according to the Board of Appeal, has a weak or even non-existent distinctive character. However, while acknowledging that consumers will most likely focus their attention on the element ‘femibion’, it considered that the element ‘intima’ should not be disregarded when it comes to the comparison of the signs.
38      For its part, the applicant disputes the findings of the Board of Appeal, claiming that the element ‘intima’ is likely to attract the attention of the relevant public because of its length, even if this element has a certain suggestive nature.
39      In that regard, it must be pointed out, as the Opposition Division and the Board of Appeal did, that the word ‘intima’ may indicate that the goods covered by the earlier mark, in particular certain categories of pharmaceutical products, are intended for personal or intimate use, and thus would be descriptive of the intended purpose of those goods. It follows that it would have a weak distinctive character for the goods covered by the earlier mark.
40      It must be stated that the applicant, in its arguments relating to the distinctiveness of the earlier mark, also recognises that the element ‘intima’ would probably be perceived as an indication of intimate or personal use of the products concerned, or as a reference to their purpose.
41      However, pursuant to the case-law cited in paragraph 33 of this judgment, there is no need to disregard the element ‘intima’ in the comparison of the signs. Indeed, contrary to the circumstances referred to in the case-law cited in paragraph 28 above, the position occupied by the element ‘intima’ in the earlier mark does not allow it to be classed as negligible.
42      The fact remains that, in view of the weak distinctive character of the element ‘intima’, the element ‘femibion’ would be perceived as the most distinctive element in the earlier mark, just as the Board of Appeal found, in essence, in paragraph 29 of the contested decision.
The visual, phonetic and conceptual comparison of the signs
43      As regards, in the first place, the visual comparison of the signs, the Board of Appeal found, in paragraph 30 of the contested decision, that, since the most distinctive element of the sign comprising the earlier mark, namely ‘femibion’, and the mark applied for, FEMIVIA, contained a similar number of letters, five of which were identical, the two signs at issue had a certain degree of similarity which may be categorised as average. As regards the element ‘intima’, because of its weak distinctive character, it would not be likely to attract the attention of the public.
44      The applicant’s argument is that the signs at issue are dissimilar overall, due to the presence of other elements, namely ‘bion intima’ and ‘via’.
45      In that regard, it should be recalled, first of all, as is clear from the case-law cited in paragraph 28 of this judgment, that the comparison must be made by examining each of the signs at issue as a whole.
46      Next, as regards the prefix ‘fem’, constituting the beginning of the signs at issue, it should be taken into account for the purposes of the comparison of the signs, as was held in paragraph 34 above. Thus, the mark applied for, FEMIVIA, and ‘femibion’, the most distinctive element of the sign comprising the earlier mark, which coincide in their first four letters, are similar to an average degree.
47      Finally, as regards the element ‘intima’, because of its weak distinctive character (see paragraph 39 above), it is not sufficient to offset the similarity between the most distinctive elements of the two signs.
48      Consequently, the degree of visual similarity between the signs at issue must be classified as at least low.
49      As regards, in the second place, the phonetic comparison of the signs, the Board of Appeal endorsed, in paragraph 31 of the contested decision, the view of the Opposition Division according to which the first three syllables of the signs at issue will be pronounced identically by the Spanish-speaking public. As regards the element ‘intima’, according to the Board of Appeal, it is not such as to offset the coincidence of the first three syllables of the most distinctive elements of the signs at issue and it can be presumed that it will not be pronounced because of its weak distinctive character.
50      In this respect, it should be noted that the Court has already held in paragraphs 40 and 41 of the judgment of 16 July 2014, FEMIVIA (T‑324/13, not published, EU:T:2014:672), that the elements ‘femivia’ and ‘femibion’ had, for the Spanish-speaking public, a high degree of similarity, in particular due to the pronunciation of the letter ‘v’ as a ‘b’ in Spanish.
51      As regards the additional element ‘intima’ of the sign constituting the earlier mark, it is not sufficient to offset the similarity between the signs and, likewise, it is possible, as was held by the Board of Appeal, that, because of its weak distinctive character, established in paragraph 39 above, as well as the natural tendency of consumers to shorten long signs (see judgment of 4 May 2016, Bodegas Williams & Humbert v EUIPO — Central Hisumer (BOTANIC WILLIAMS & HUMBERT LONDON DRY GIN), T‑193/15, not published, EU:T:2016:266, paragraph 60 and the case-law cited), this element would not be pronounced.
52      It follows that, for the Spanish-speaking public, the signs at issue are phonetically similar to an average degree.
53      As regards, in the third place, the conceptual comparison of the signs at issue, the Board of Appeal found, in paragraph 35 of the contested decision, that they had a certain similarity in so far as the common prefix ‘fem’ evokes the Spanish word ‘femenino’ for the Spanish-speaking public. As regards the element ‘intima’, the Board of Appeal found that its semantic connotation would probably not constitute a relevant element of conceptual differentiation between the signs at issue because of its very low degree of distinctiveness.
54      In this respect, it is appropriate to uphold the conclusion of the Board of Appeal in relation to the similarity between the most distinctive elements of the signs at issue ‘femivia’ and ‘femibion’.
55      As regards the element ‘intima’, while it is true that it is likely to provide some nuance in the meaning of the earlier mark, its descriptive character of the purpose for some of the goods covered by this mark (see paragraph 39 above) should be taken into account, which gives it a weak distinctive character for the Spanish-speaking public.
56      It follows that the signs at issue, taken as a whole, are conceptually similar at least to a low degree.
The likelihood of confusion
57      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, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
58      In the present case, the Board of Appeal found, in paragraph 39 of the contested decision, that, given the identity of the goods at issue, the similarities between the marks, in particular visually and phonetically, and their distinctive elements, there was a likelihood of confusion on the part of the Spanish-speaking public of the European Union, even taking into account the fact that the consumer would be more careful when it comes to pharmaceutical goods.
59      It must be held, as was done by the Board of Appeal, that there is, in the present case, a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 on the part of the Spanish-speaking public of the European Union. As is apparent from the considerations above, the goods at issue are identical and the signs at issue have at least a low degree of similarity visually and conceptually, and an average degree of similarity phonetically. Therefore, and in the light of the distinctive elements of the signs at issue, and despite a high level of attention of the relevant public, the Board of Appeal was justified in finding in the present case that there is a likelihood of confusion in the mind of at least a part of the relevant public.
60      That conclusion cannot validly be called into question by the applicant’s arguments.
61      First, the applicant submits that the fact that the goods at issue are similar does not justify the conclusion that there is a likelihood of confusion and, in that regard, criticises the Board of Appeal for not having carried out a global assessment of that likelihood of confusion.
62      On the one hand, it should be recalled that, contrary to the applicant’s assertions, the goods at issue have rightly been found to be identical by the Board of Appeal (see paragraph 26 above) and not merely similar.
63      On the other hand, as is clear from settled case-law, recalled in paragraph 57 of this judgment, under the principle of the interdependence between the factors to be taken into account for the purposes of assessing the likelihood of confusion, a low degree of similarity between the goods at issue may be offset by a high degree of similarity between the marks, and vice versa. In the present case, however, as has been stated (see paragraph 59 above), the goods at issue are identical and the signs at issue have an average degree of similarity phonetically and at least a low degree of similarity visually and conceptually for the Spanish-speaking public of the European Union. It follows that, in those circumstances, the applicant cannot criticise the Board of Appeal for not having carried out a global assessment of the likelihood of confusion in the present case.
64      Secondly, contrary to what the applicant claims, the Board of Appeal did indeed take into account, in its assessment of the likelihood of confusion, the high level of attention of the relevant public, as is clear from paragraph 39 of the contested decision and paragraph 58 above.
65      Furthermore, the Board of Appeal rightly pointed out, in paragraph 40 of the contested decision, that the fact that the relevant public will be more aware of 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. 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 imperfect recollection of them (judgments of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26, and of 16 July 2014, FEMIVIA, T‑324/13, not published, EU:T:2014:672, paragraph 48).
66      Thirdly, as regards the distinctive character of the earlier mark, the applicant submits that the earlier mark has a weak distinctive character, so that the factor relating to distinctive character cannot be taken into account for the purposes of assessing the likelihood of confusion.
67      In that regard, the Board of Appeal found, in paragraph 38 of the contested decision, that the presence of the elements ‘fem’ and ‘intima’ in the earlier mark, which have a weak distinctive character, was not sufficient to conclude that the earlier mark as a whole had a weak distinctive character.
68      Contrary to the applicant’s assertions, that conclusion is correct. The earlier mark does not consist exclusively of elements with a low degree of distinctiveness for the goods at issue. Therefore, considered as a whole, its distinctiveness must be categorised as average, as was held, in essence, by the Board of Appeal in paragraph 38 of the contested decision. It is therefore this degree of distinctiveness of the earlier mark which was rightly taken into account by the Board of Appeal for the purposes of assessing the likelihood of confusion.
69      In any event, it should be borne in mind that a finding that the earlier mark has a weak distinctive character does not preclude a finding that there is a likelihood of confusion. Although the distinctive character of the earlier mark must be taken into account in assessing the likelihood of confusion, it is only one factor among others involved in that assessment. Therefore, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the signs and between the goods or services covered (see judgment of 13 December 2007, Xentral v OHIM — Pages jaunes (PAGESJAUNES.COM), T‑134/06, EU:T:2007:387, paragraph 70 and the case-law cited).
70      In view of all of the foregoing, the single plea in law must be rejected and the action must be dismissed in its entirety.
Costs
71      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 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 (Fifth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Endoceutics, Inc. to pay the costs.
Gratsias
Labucka
Ulloa Rubio
Delivered in open court in Luxembourg on 22 November 2018.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.