JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
13 May 2025 (*)
( EU trade mark – Opposition proceedings – Application for the EU figurative mark K. – Earlier EU figurative marks k and k kutxabank kredit – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 – Lack of similarity of the services – Lack of similarity of the signs – Cross-claim )
In Case T‑105/25,
Kutxabank, SA, established in Bilbao (Spain), represented by J. Erdozain López, J. Vicente Martínez and M. López Camba, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Klee 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
Klarna Bank AB, established in Stockholm (Sweden), represented by L. Webster, lawyer,
THE GENERAL COURT (Eighth Chamber),
composed of I. Gâlea, President, M.J. Costeira (Rapporteur) and B. Ricziová, Judges,
Registrar: J. Čuboň, Administrator,
having regard to the written part of the procedure,
further to the hearing on 28 January 2026,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Kutxabank, SA, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 November 2024 (Case R 1441/2019-4) (‘the contested decision’).
2        By its cross-claim under Article 182 of the Rules of Procedure of the General Court, the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, Klarna Bank AB, seeks the partial annulment of the contested decision.
I.      Background to the dispute
3        On 14 August 2017, the intervener filed an application for registration of an EU trade mark with EUIPO for the following figurative sign:
4        The mark applied for designated the services in Classes 35, 36, 39, 42 and 45 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended, and corresponding, for each of those classes, to the following description:
–        Class 35: Advertising; business management; business administration; office functions services; design of business surveys for others; conducting business and market research surveys for others; business enquiries and investigations; business information; invoicing; book-keeping services; computerized file management; marketing services; loyalty and affinity program services’;
–        Class 36: ‘Insurance; insurance consultancy, insurance information; financial services and financial affairs; monetary affairs; electronic payment services; electronic processing of transactions and payments via a global computer network; bill payment services; credit information services; credit assessment; evaluation of the credit worthiness of companies and private individuals; lending and credit services; factoring services; debt collection services; banking service; money transfer services; preparing, processing and tracking electronic payment transactions’;
–        Class 39: ‘Logistics, distribution and transportation services; shipping of goods; tracking and tracing of documents, letters, packages, and parcels in transit’;
–        Class 42: ‘Design and development of computer hardware and software; computer programming; software design; creating, designing and maintaining web sites and applications; providing temporary use of online non-downloadable computer software for electronic payment; providing temporary use of online non-downloadable computer software for use in credit assessment; providing temporary use of online non-downloadable computer security software for use in verifying and controlling access to and communication with computers and computer networks; providing of temporary use of online non-downloadable mobile application computer software for financial transactions; providing of temporary use of online non-downloadable computer software for hosting services; software as a service for financial transactions; computer security assurance and administration of digital keys and digital certificates, monitoring of computer systems for security purposes’;
–        Class 45: ‘Legal services; security services for the protection of property and individuals; providing user authentication services including for e-commerce transactions; personal background investigations; user verification’.
5        On 29 November 2017, the applicant filed a notice of opposition to the registration of the mark applied for in respect of all the services referred to in paragraph 4 above.
6        The opposition was based, in particular, on the following earlier marks:
–        the earlier EU figurative mark reproduced below, registered on 15 May 2014 as No 10514974, for services in Class 36 and corresponding, after partial revocation, to the following description: ‘Insurance; financial affairs; monetary affairs’ (‘Earlier Mark 1’):
–        the earlier EU figurative mark reproduced below, registered on 24 May 2013 as No 11264421, for services in Classes 35 and 36 and corresponding, for each of those classes, to the following description (‘Earlier Mark 2’):
–        Class 35: ‘Advertising; business management; business administration; office functions; procurement services for others [purchasing goods and services for other businesses]; updating of advertising material; import-export agencies; commercial information agencies; publicity agencies; rental of vending machines; rental of advertising space; rental of photocopying machines; office machines and equipment rental; publicity material rental; rental of advertising time on communication media; cost price analysis; management (advisory services for business -); business management assistance; data search in computer files for others; marketing research; sponsorship search; business research; commercial or industrial management assistance; price comparison services; compilation of information into computer databases; layout services for advertising purposes; news clipping services; business management consultancy; personnel management consultancy; business organization consultancy; business management and organization consultancy; business consultancy (professional -); accounting; telephone answering for unavailable subscribers; publicity columns preparation; tax preparation; shop window dressing; demonstration of goods; dissemination of advertising matter; distribution of samples; relocation services for businesses; accounts (drawing up of statements of -); marketing studies; outsourcing services [business assistance]; invoicing; organization of trade fairs for commercial or advertising purposes; business management of hotels; commercial administration of the licensing of the goods and services of others; file management (computerized -); business management of performing artists; business inquiries; business information; commercial information and advice for consumers [consumer advice shop]; business investigations; marketing; typing; modelling for advertising or sales promotion; payroll preparation; employment agencies; fashion shows for promotional purposes (organization of -); organization of exhibitions for commercial or advertising purposes; arranging newspaper subscriptions for others; efficiency experts; psychological testing for the selection of personnel; presentation of goods on communication media, for retail purposes; economic forecasting; production of advertising films; sales promotion for others; publication of publicity texts; publicity; on-line advertising on a computer network; bill-posting; direct mail advertising; advertising by mail order; radio advertising; television advertising; compilation of statistics; writing of publicity texts; public relations; document reproduction; secretarial services; personnel recruitment; photocopying services; business management of sports people; telemarketing services; systemization of information into computer databases; opinion polling; arranging subscriptions to telecommunication services for others; shorthand; administrative processing of purchase orders; transcription; word processing; business appraisals; auctioneering; auditing’;
–        Class 36: ‘Insurance; financial affairs; monetary affairs; real estate affairs; banking; actuarial services; real estate management; apartment house management; financial management; customs brokerage; accommodation bureaux [apartments]; debt collection agencies; credit bureaux; real estate agencies; housing agents; renting of flats; rental of offices [real estate]; analysis (financial -); hire-purchase financing; leasing of real estate; leasing of farms; home banking; safe deposit services; clearing, financial; rent collection; mutual funds; insurance consultancy; financial consultancy; brokerage; brokerage of carbon credits; insurance brokerage; securities brokerage; stock exchange quotations; deposits of valuables; factoring; issue of tokens of value; issuing of travellers’ checks [cheques]; issuance of credit cards; repair costs evaluation [financial appraisal]; fiscal assessments; financial evaluation [insurance, banking, real estate]; guarantees; fiduciary; financing services; provident fund services; insurance information; financial information; fund investments; retirement payment services; business liquidation services, financial; exchanging money; organization of collections; instalment loans; financial sponsorship; lending against security; loans [financing]; pawnbrokerage; charitable fund raising; mortgage banking; savings bank services; insurance underwriting; accident insurance underwriting; fire insurance underwriting; life insurance underwriting; marine insurance underwriting; health insurance underwriting; credit card services; debit card services; antique appraisal; jewelry appraisal; art appraisal; stamp appraisal; numismatic appraisal; real estate appraisal; funds transfer (electronic -); valuation of standing timber (financial -); evaluation of wool (financial -); check [cheque] verification’:
7        The grounds relied on in support of the opposition were those referred to in Article 8(1)(b) and (5) of 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)).
8        On 6 May 2019, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009 in respect of all of the services referred to in the mark applied for, on the ground that a likelihood of confusion could not be excluded between the mark applied for and Earlier Mark 1.
9        On 5 July 2019, the intervener filed a notice of appeal with EUIPO against the decision of the Opposition Division.
10      By the contested decision, the Board of Appeal allowed the intervener’s appeal in part and annulled the decision of the Opposition Division in so far as the latter had upheld the applicant’s opposition in respect of all the services referred to in the mark applied for included in Classes 35, 39, 42 and 45. The Board of Appeal considered, on the other hand, that the applicant’s opposition should be upheld for all the services referred to in the mark applied for contained in Class 36. It therefore rejected the intervener’s appeal in respect of those services.
II.    Forms of order sought
A.      The forms of order submitted in support of the main action
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the intervener to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
13      The intervener contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs, including those incurred before the Board of Appeal.
B.      The forms of order submitted in support of the cross-claim
14      The intervener claims that the Court should:
–        dismiss the applicant’s action;
–        annul the contested decision in so far as the opposition was upheld for all the services referred to in the mark applied for and included in Class 36;
–        order the applicant to pay the costs, including those incurred before the Board of Appeal.
15      EUIPO contends that the Court should:
–        dismiss the cross-claim;
–        order the applicant to pay the costs in the event that a hearing is convened.
16      The applicant contends that the Court should:
–        dismiss the cross-claim;
–        order the intervener to pay the costs.
III. Law
17      As a preliminary point, in view of the date on which the application for registration in question was filed, namely 14 August 2017, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009, as amended on 23 March 2016 (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).
18      Consequently, in the present case, as regards the substantive rules, the Board of Appeal’s references in the contested decision and the parties’ references in their written pleadings to Article 8(1)(b) of Regulation 2017/1001 must be understood as being to Article 8(1)(b) of Regulation No 207/2009, as amended, which is worded in identical terms.
A.      The main action
19      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
20      The applicant maintains, in essence, that the Board of Appeal erred in considering that there existed no likelihood of confusion with respect to all the services referred to in the mark applied for in Classes 35, 39, 42 and 45.
21      EUIPO and the intervener dispute the applicant’s arguments.
22      In the words of Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the mark applied for is not to 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 trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
23      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 same case-law, the likelihood of confusion must be assessed globally, according to the perception which the relevant public has of the signs and the goods or services in question, account being taken of all factors that characterise the particular case, including the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 26 June 2014, Basic v OHIM – Repsol YPF (basic), T‑372/11, EU:T:2014:585, paragraph 21 and the case-law cited).
24      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 26 June 2014, basic, T‑372/11, EU:T:2014:585, paragraph 22 and the case-law cited).
25      It is in the light of those considerations that the Court must examine whether, as the applicant maintains, the Board of Appeal infringed Article 8(1)(b) of Regulation No 207/2009 in considering that there existed no likelihood of confusion in the present case.
26      As a preliminary point, as regards the relevant public, first, in paragraph 33 of the contested decision, the Board of Appeal considered that the services in Class 35, namely ‘advertising; business management; business administration and office functions’ were mainly aimed at business professionals, who displayed a high degree of attention. Second, in paragraph 34 of the contested decision, the Board of Appeal considered that the services in Class 36 were aimed at both the public at large and professionals, who would have at least a heightened level of attention. Third, in paragraph 36 of the contested decision, it considered that the relevant public was, in the light of the earlier marks, the public of the European Union.
27      There is no reason to interfere with those findings of the Board of Appeal, which, moreover, have not been disputed by the applicant.
28      On the other hand, the applicant disputes the findings of the Board of Appeal relating to the comparison of the services at issue and, moreover, of the signs at issue.
29      In the contested decision, the Board of Appeal began by examining the likelihood of confusion by Earlier Mark 1. It is appropriate to follow the same order here.
1.      Earlier Mark 1
30      The applicant disputes the comparison of the services made by the Board of Appeal as regards the services that were considered to be different and in respect of which the opposition was rejected. In particular, the applicant maintains that the Board of Appeal erred in considering, in paragraph 44 of the contested decision, that the nature, the purpose and the method of use of the services referred to in the mark applied for and included in Classes 35, 39, 42 and 45 were different from those of the services ‘insurance; financial affairs; monetary affairs’ in Class 36 covered by Earlier Mark 1.
31      EUIPO and the intervener dispute the applicant’s arguments.
32      As a preliminary point, according to the case-law, in the assessment of the similarity of the goods and services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and 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 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
33      Complementary goods or services are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 57 and the case-law cited).
34      It should be noted at the outset that the applicant has put forward no argument in the application to dispute the findings of the Board of Appeal concerning the lack of similarity between the services in Class 39 referred to in the mark applied for and the services covered by Earlier Mark 1 and that the plea, in so far as it relates to those services, must be considered to be unsubstantiated and must therefore be rejected.
35      In any event, the Board of Appeal correctly observed in paragraph 44 of the contested decision that the services ‘logistics, distribution and transportation services; shipping of goods; tracking and tracing of documents, letters, packages, and parcels in transit’ in Class 39 referred to in the mark applied for had a different nature, purpose and method of use from the services ‘insurance; financial affairs; monetary affairs’ in Class 36 covered by Earlier Mark 1.
36      There is, accordingly, no reason to interfere with those findings of the Board of Appeal, which, moreover, have not been disputed by the applicant, as noted in paragraph 34 above.
(a)    Concerning the services ‘invoicing; book-keeping services; loyalty and affinity program services’ in Class 35 referred to in the mark applied for
37      The applicant maintains, in essence, that the services ‘invoicing; book-keeping services; loyalty and affinity program services’ in Class 35 and referred to in the mark applied for are directly related to the services ‘insurance; financial affairs; monetary affairs’ covered by Earlier Mark 1, since they imply carrying out financial and monetary services. It also maintains that the services ‘loyalty and affinity program services’ are generally offered by financial and monetary entities in order to reward their customers for their trust. It follows that the services at issue are similar.
38      EUIPO and the intervener dispute the applicant’s arguments.
39      In that regard, it should be pointed out that the services referred to in the mark applied for consist essentially of services connected with accountancy and are generally provided by accountants. The services covered by Earlier Mark 1, on the other hand, consist essentially of services provided in financial affairs and monetary affairs, which, according to the explanatory note on Class 36 of the Nice Agreement, include, in particular, services provided by banking establishments or financial institutions, such as credit operations, services provided by investment trusts and services of brokers dealing in shares and property. There is thus no relationship of competition or substitutability between those services.
40      Nor has the applicant substantiated or proved its assertions that, on the one hand, the services at issue are directly connected, in that they are financial and monetary services, and, on the other, the services ‘loyalty and affinity programs’ are generally provided by financial and monetary entities in order to reward the loyalty of their customers. The applicant does not produce any conclusive evidence showing that the nature, purpose and aim of the services at issue are similar or that there is a close connection between them within the meaning of the case-law in paragraph 34 above, such that consumers may think that responsibility for the supply of those services lies with the same undertaking.
41      In any event, because those allegations are too vague, they do not permit the Court to identify any error of assessment by the Board of Appeal. Accordingly, they cannot suffice, per se, to establish the existence of similarity between the services at issue.
42      There is, accordingly, no reason to interfere with the Board of Appeal’s finding that the services at issue satisfied different needs of the public and did not have the same commercial origin or the same distribution channels.
43      It follows from the foregoing that the Board of Appeal did not make an error of assessment in finding that the services at issue were different.
(b)    Concerning the services ‘providing temporary use of online non-downloadable computer software for electronic payment; providing temporary use of online non-downloadable computer software for use in credit assessment; providing of temporary use of online non-downloadable mobile application computer software for financial transactions; software as a service for financial transactions’, included in Class 42 and referred to in the mark applied for
44      The applicant maintains, in essence, that the services ‘providing temporary use of online non-downloadable computer software for electronic payment; providing temporary use of online non-downloadable computer software for use in credit assessment; providing of temporary use of online non-downloadable mobile application computer software for financial transactions; software as a service for financial transactions’ included in Class 42 and referred to in the mark applied for are directly connected with the services ‘financial affairs; monetary affairs’ covered by Earlier Mark 1 in so far as financial transactions or online payments require computer software that allows those operations to be carried out. It follows that the services at issue are similar, in so far as their nature, purpose and relevant public are closely connected.
45      EUIPO and the intervener dispute the applicant’s arguments.
46      In that regard, it should be observed, as EUIPO contends, that while it is true that those services referred to in the mark applied for may, to a certain extent, facilitate the provision of services connected with financial and monetary affairs, the fact nonetheless remains that the nature, purpose and use of those services are different from the nature, purpose and use of the services covered by the earlier mark.
47      First of all, as stated in paragraph 40 above, the services covered by Earlier Mark 1 come, generally, within the banking and financial sector. They consist, in particular, of services supplied by banking establishments or financial institutions, such as credit operations, services offered by investment trusts and the activities of brokers dealing in shares and property. On the other hand, it follows from the explanatory note on Class 42 of the Nice Agreement that services in that class are mainly provided by chemists, physicists, engineers and computer programmers. Those services include, in particular, the services of engineers and scientists who undertake evaluations, estimates, research and reports in the scientific and technological fields, including technological consultancy. Those services also include computer and technology services for securing computer data and personal and financial information and for the detection of unauthorised access to data and information. They include, last, scientific research services for medical research. It follows that the services in question do not have the same nature or the same purpose and do not satisfy the same needs. Nor are they provided by professionals belonging to the same sector of activity.
48      There is, accordingly, no reason to interfere with the Board of Appeal’s finding that the services at issue satisfied distinct needs of the public and did not have the same commercial origin or the same distribution channels.
49      It follows from the foregoing that the Board of Appeal did not make an error of assessment in finding that the services in question were different.
(c)    Concerning the services ‘security services for the protection of property and individuals; providing user authentication services including for e-commerce transactions; personal background investigations’ included in Class 45 and referred to in the mark applied for
50      The applicant maintains, in essence, that the services ‘security services for the protection of property and individuals; providing user authentication services including for e-commerce transactions; personal background investigations’ included in Class 45 and referred to in the mark applied for are directly connected with the services ‘insurance and financial and monetary affairs’ covered by Earlier Mark 1, in so far as e-commerce transactions, involving payment through a website or a mobile application, require authentication of the user. It follows, in the applicant’s submission, that the services at issue are similar, in so far as their nature, purpose and relevant public are closely connected.
51      EUIPO and the intervener dispute the applicant’s arguments.
52      In that regard, it should be noted at the outset that it follows from the explanatory note on Class 45 of the Nice Agreement that the services in that class do not include services relating to financial or monetary affairs or services dealing with insurance in Class 36. Contrary to the applicant’s contention, those services cannot therefore have the same nature and the same purpose and satisfy the same needs as the services in Class 36 covered by Earlier Mark 1.
53      Furthermore, as the services referred to in the mark applied for consist of investigation and surveillance services relating to the physical safety of persons and security of tangible property, they do not originate from the same suppliers, owing to their distinct nature, the different competences which they require and the different needs which they satisfy.
54      There is, accordingly, no reason to interfere with the Board of Appeal’s finding that the services in question satisfy different needs of the public and do not have the same commercial origin or the same distribution channels.
55      It follows from the foregoing that the Board of Appeal did not make an error of assessment in finding that the services at issue are different.
(d)    Concerning the remaining services included in Classes 35, 42 and 45 referred to in the mark applied for
56      The applicant maintains that the remaining services included in Classes 35, 42 and 45 referred to in the mark applied for should be considered to be complementary to the services covered by Earlier Mark 1. The applicant submits that it must be understood that, if the main objective of the services referred to in
the mark applied for is to provide financial services, the rest of the services referred to in that trade mark will be deployed in such a way as to provide financial services and in that respect will be complementary.
57      EUIPO and the intervener dispute the applicant’s arguments.
58      In that regard, it was stated in paragraph 34 above that, according to the case-law, complementary services are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking.
59      In the present case, it should be noted at the outset that the applicant puts forward no firm, detailed evidence of such a kind as to show that the services at issue are complementary within the meaning of the case-law. Its argument is confined to asserting that, since the main objective of the services referred to in the mark applied for is the provision of financial services, the other services referred to in that trade mark are supplied for the same purpose and are therefore complementary. However, such an assertion, formulated in abstract terms and based on no probative material showing that consumers may think that responsibility for supplying those services lies with the same undertaking, cannot in itself establish the existence of a sufficient link of complementarity to support the conclusion that the services are similar.
60      In addition, as EUIPO observes in its written pleadings, in order to assess the similarities of the services at issue, within the meaning of Article 8(1)(b) of Regulation No 207/2009, it is necessary to take into account the description of the services covered by the marks at issue and not the services actually marketed or to be marketed under those marks.
61      There is, accordingly, no reason to interfere with the Board of Appeal’s finding that the services at issue were not complementary.
62      It follows from all of the foregoing that the Board of Appeal did not make an error of assessment in finding that the services referred to in the mark applied for and included in Classes 35, 39, 42 and 45 were different from the services ‘insurance; financial affairs; monetary affairs’ covered by Earlier Mark 1 and included in Class 36.
63      In those circumstances, in so far as one of the conditions necessary for a finding of the existence of a likelihood of confusion under Article 8(1)(b) of Regulation No 207/2009, namely the similarity of the services at issue, is not satisfied as regards those services, the Board of Appeal did not make an error of assessment in considering that, for those services, there existed no likelihood of confusion between the mark applied for and Earlier Mark 1.
64      It follows that the arguments put forward in support of the main action, in that they relate to the opposition based on Earlier Mark 1 for the services referred to in the mark applied for and included in Classes 35, 39, 42 and 45, must be rejected, without there being any need to examine further the merits of the applicant’s other complaints relating to those services.
2.      Earlier Mark 2
(a)    The comparison of the services at issue
65      The applicant disputes the comparison of the services made by the Board of Appeal as regards the services that were considered to be different and in respect of which the opposition was rejected. In particular, the applicant maintains that the Board of Appeal made an error of assessment in considering, in paragraph 71 of the contested decision, that the nature, the purpose and the method of use of the services referred to in the mark applied for and included in Classes 39, 42 and 45 were different from the services covered by Earlier Mark 2 and included in Classes 35 and 36, set out in paragraph 6 above.
66      EUIPO and the intervener dispute the applicant’s arguments.
(1)    The services in Class 39 referred to in the mark applied for
67      The applicant maintains, in essence, relying on paragraph 50 of the judgment of 13 April 2011, Bodegas y Viñedos Puerta de Labastida v OHIM – Unión de Cosecheros de Labastida (PUERTA DE LABASTIDA) (T‑345/09, not published, EU:T:2011:173), that the services ‘logistics, distribution and transportation services; shipping of goods’ in Class 39 referred to in the mark applied for are similar to the services in Class 35 covered by Earlier Mark 2, and in particular to the services ‘business management; business administration; office functions; procurement services for others [purchasing goods and services for other businesses]; updating of advertising material; import-export agencies’. Because of their nature, the services at issue can, it claims, be provided by agencies specialised in the import and export of goods, in charge of their distribution and transportation from point to point. The applicant also maintains that the other services referred to in the mark applied for and included in Class 39, namely the services ‘tracking and tracing of documents, letters, packages, and parcels in transit’ are complementary to the services in Class 35 covered by Earlier Mark 2.
68      EUIPO and the intervener dispute the applicant’s arguments.
(i)    The services ‘logistics, distribution and transportation services; shipping of goods’ referred to in the mark applied for
69      In that regard, it should be observed at the outset that it follows from the explanatory note on Class 35 of the Nice Agreement that the services in that class include the bringing together, for the benefit of others, of a variety of goods, excluding the transport thereof. Therefore, since the services included in that class do not expressly include transport services, the Board of Appeal was able to consider, without making an error of assessment, that the services covered by Earlier Mark 2 did not have the same nature, the same purpose and the same use as the services ‘logistics, distribution and transportation services; shipping of goods’ referred to in the mark applied for.
70      In addition, it follows from the abovementioned explanatory note that the services consisting in the bringing together, for the benefit of others, of a variety of goods are provided, inter alia, by retail stores, wholesale outlets, through vending machines and mail order catalogues or by means of electronic media, such as websites or television shopping programmes. It follows, contrary to the applicant’s contention, that the services at issue are not provided by the same undertakings.
71      Last, contrary to the applicant’s contention, the General Court did not consider, in paragraph 50 of the judgment of 13 April 2011, PUERTA DE LABASTIDA (T‑345/09, not published, EU:T:2011:173), that the services included in Class 35 and the services included in Class 39 were similar. That paragraph concerned the comparison of services that were all included in Class 35 and not the comparison of services in Class 35 and in Class 39, as in the present case.
72      It follows from the foregoing that the Board of Appeal did not make an error of assessment in finding that the services at issue were different.
(ii) The services ‘tracking and tracing of documents, letters, packages, and parcels in transit’ referred to in the mark applied for
73      In that regard, it should be observed that the applicant does not dispute the Board of Appeal’s finding that the services referred to in the mark applied for and included in Class 39 were different from the services covered by Earlier Mark 2 and included in Class 36. Its argument, for the purpose of establishing that the services at issue are complementary, is limited to the assertion that the services referred to in the mark applied for are complementary to the services in Class 35 covered by Earlier Mark 2. It provides no element capable of showing that the services at issue are complementary, within the meaning of the case-law referred to in paragraph 34 above. More precisely, it does not present any specific arguments to establish that the services referred to in the mark applied for are indispensable or important for the use of the services covered by Earlier Mark 2.
74      In those circumstances, in the absence of specific arguments, there is no reason to interfere with the Board of Appeal’s finding that the services at issue were not complementary.
75      It follows from all of the foregoing that the Board of Appeal did not make an error of assessment in finding that the services referred to in the mark applied for and included in Class 39 were different from the services covered by Earlier Mark 2 and included in Classes 35 and 36.
(2)    The services included in Classes 42 and 45 and referred to in the mark applied for
76      The applicant maintains, in essence, that, in so far as the services included in Class 36 and covered by Earlier Mark 2 are identical to the services ‘insurance; financial affairs; monetary affairs’ included in Class 36 and covered by Earlier Mark 1, the considerations set out in paragraphs 39 to 43 of the application, concerning the strong similarity between those services and the services included in Classes 42 and 45 and referred to in the mark applied for, may be reproduced with respect to Earlier Mark 2. Consequently, first, the services ‘providing temporary use of online non-downloadable computer software for electronic payment; providing temporary use of online non-downloadable computer software for use in credit assessment; providing of temporary use of online non-downloadable mobile application computer software for financial transactions’ included in Class 42 and ‘providing user authentication services including for e-commerce transactions’ included in Class 45, referred to in the mark applied for, are similar to the services ‘insurance; financial affairs; monetary affairs’ included in Class 36 and covered by Earlier Mark 2. Second, the services ‘design and development of computer hardware and software; computer programming; software design; creating, designing and maintaining web sites and applications; providing temporary use of online non-downloadable computer security software for use in verifying and controlling access to and communication with computers and computer networks; computer security assurance and administration of digital keys and digital certificates, monitoring of computer systems for security purposes’ in Class 42 and ‘legal services; security services for the protection of property and individuals; personal background investigations; user verification’ in Class 45, referred to in the mark applied for, are complementary to the services included in Class 36 and covered by Earlier Mark 2.
77      EUIPO and the intervener dispute the applicant’s arguments.
78      In that regard, it should be observed that the applicant does not dispute the Board of Appeal’s finding that the services referred to in the mark applied for and included in Classes 42 and 45 were different from the services covered by Earlier Mark 2 and included in Class 35. Its argument is confined, in this instance, to reiterating the argument which it put forward for the purpose of the comparison of the services referred to in the mark applied for and included in Classes 42 and 45 and the services covered by Earlier Mark 1.
79      Consequently, in so far as the services ‘insurance; financial affairs; monetary affairs’ included in Class 36 and covered by Earlier Mark 2 are identical to the services covered by Earlier Mark 1, it must be held, for the same reasons as those set out in paragraphs 47 to 63 above, that the Board of Appeal did not make an error of assessment in finding that the services referred to in the mark applied for and included in Classes 42 and 45 were neither similar to nor complementary to the services included in Class 36 and covered by Earlier Mark 2.
80      Likewise, for the reasons stated in paragraph 75 above, in the absence of specific arguments, there is no reason to interfere with the Board of Appeal’s finding that the services referred to in the mark applied for and included in Classes 42 and 45 were different from the services covered by Earlier Mark 2 and included in Class 35.
81      In those circumstances, in so far as one of the conditions necessary for a finding of the existence of a likelihood of confusion in application of Article 8(1)(b) of Regulation No 207/2009, namely the similarity of the services at issue, is not satisfied as regards the services referred to in the mark applied for and included in Classes 39, 42 and 45 and the services covered by Earlier Mark 2, the Board of Appeal did not make an error of assessment in considering that, with respect to those services, there was no likelihood of confusion.
82      It follows that the argument put forward in support of the main action, in that it related to the opposition based on Earlier Mark 2 for the services referred to in the mark applied for and included in Classes 39, 42 and 45, must be rejected, without there being any need to examine further the merits of the applicant’s other complaints relating to those services.
83      On the other hand, as regards the services referred to in the mark applied for and included in Class 35, which were considered by the Board of Appeal, in paragraphs 66 to 70 of the contested decision, to be identical to the services covered by Earlier Mark 2 and included in Class 35, the Court must examine the merits of the applicant’s complaint relating to the similarity of the signs at issue.
(b)    The comparison of the signs at issue
84      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse 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).
85      The 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 (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That might be the case, in particular, where that component is capable on its own of dominating the image of that trade mark which the relevant public keeps in mind, so that all the other components of the mark are negligeable in the overall impression produced by it (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
86      In the present case, the marks to be compared are presented as follows:
–        the mark applied for is the following figurative sign:
–        Earlier Mark 2 is the following figurative sign:
(1)    The visual similarity of the signs at issue
87      The applicant maintains, in essence, that the letter ‘k’ is the dominant element in the signs at issue, in the light of its position, size and significance on the whole. It is the most eye-catching element in Earlier Mark 2, as the Board of Appeal considered, and the only element in the mark applied for. The word elements ‘kutxabank’ and ‘kredit’ in Earlier Mark 2 have a clear secondary position and a smaller size than the letter ‘k’. Consequently the signs at issue should be seen as highly similar, given their very similar dominant elements and their insignificant differences.
88      EUIPO and the intervener dispute the applicant’s arguments.
89      In paragraphs 76 and 77 of the contested decision, the Board of Appeal considered, in essence, that although the letter ‘k’ was represented in the signs at issue, the overall impression produced by the signs was different, owing to the visible presence of the distinctive word elements ‘kutxabank’ and ‘kredit’ of the earlier mark, which had no counterpart in the mark applied for. The signs at issue therefore had a low degree of visual similarity.
90      In the present case, it should be observed at the outset that the applicant’s argument is based on a misreading of the contested decision, since, contrary to the applicant’s contention, the Board of Appeal did not consider in that decision that the figurative element representing the letter ‘k’ was the dominant element of Earlier Mark 2. In paragraph 74 of the contested decision, the Board of Appeal stated that all elements of Earlier Mark 2 had the same distinctive character vis-à-vis the services in Class 35 covered by Earlier Mark 2. In the same paragraph, the Board of Appeal also stated, correctly, that owing to their size and positioning, the word elements ‘kutxabank’ and ‘kredit’ occupied a significant and notable part of Earlier Mark 2 and were important for the purpose of the examination of the similarity of the signs.
91      In that regard, it must be borne in mind that Earlier Mark 2 is composed of a figurative element representing the letter ‘k’, lightly stylised, written in bold, below which appear, in a smaller size, on a second and a third lines, the word elements ‘kutxabank’ and ‘kredit’, written, in lower case, in black and red respectively. Those elements, which admittedly appear in the lower part of the sign and which are written in lower case of smaller size than the letter ‘k’, nonetheless occupy a significant and notable part of the sign. They are sufficiently large to be noticed and are perfectly legible. Their importance cannot therefore be played down and classified as secondary for the purpose of the examination of the similarity of the signs.
92       In addition, it follows from the case-law that, where there is a figurative element representing a letter that refers to the first letter of the word element of a composite trade mark, as in the present case, that figurative element merely accentuates the presence of the word element to which it is subordinated (see judgment of 6 September 2023, Adega Ponte da Boga v EUIPO – Viñedos y Bodegas Dominio de Tares (P3 DOMINIO DE TARES), T‑107/22, not published, EU:T:2023:494, paragraph 36 and the case-law cited). It follows that, contrary to the applicant’s contention, the assessment of the similarity of the signs at issue cannot be limited solely to the comparison of the letter ‘k’.
93      Furthermore, as EUIPO correctly stated, that finding is not called into question by the judgments of 20 October 2011, Poloplast v OHIM – Polypipe (P) (T‑189/09, not published, EU:T:2011:611), and of 12 January 2022, 1031023 B.C. v EUIPO – Bodegas San Valero (Representation of a circle drawn by a brush) (T‑366/20, not published, EU:T:2022:4), on which the applicant relies in support of its argument. First, the findings made in the judgment of 20 October 2011, P (T‑189/09, not published, EU:T:2011:611), are not transposable since, unlike in that case, the word elements ‘kutxabank’ and ‘kredit’ do not present a lower distinctiveness with respect to the services covered by the earlier mark than the figurative element representing the letter ‘k’. Second, in the judgment of 12 January 2022, Representation of a circle drawn by a brush (T‑366/20, not published, EU:T:2022:4), the General Court considered, as is apparent from paragraph 59 of that judgment, that the word element had the same weight as the figurative element in the overall impression produced by the earlier mark.
94      It follows from all of the foregoing that, although the signs at issue resemble each other in that they are both composed of a figurative element representing the letter ‘k’, they are, conversely, distinguished, first, by the word elements ‘kutxabank’ and ‘kredit’ of Earlier Mark 2, which have no equivalent in the mark applied for, and, second, by the stylisation of the letter ‘k’.
95      It must therefore be concluded, in the light of the foregoing, that the signs at issue present, in visual terms, a low similarity. The Board of Appeal’s finding that the signs at issue have a low degree of visual similarity must therefore be qualified.
(2)    The phonetic similarity of the signs at issue
96      The applicant maintains, in essence, that, given (i) the dominant character of the letter ‘k’ in both signs, which will be pronounced in the same way, and (ii) the main reasoning of the Board of Appeal concerning economy of the words, the signs at issue must be considered to be very similar.
97      EUIPO and the intervener dispute the applicant’s arguments.
98      In paragraphs 78 and 79 of the contested decision, the Board of Appeal stated, in essence, that the signs at issue had a very different sound and length, given the distinctive word elements ‘kutxabank’ and ‘kredit’ in the earlier mark, which had no equivalent in the mark applied for, consisting of the single letter ‘k’. The relevant public will in all likelihood pronounce the earlier mark as ‘kutxabank kredit’ or ‘kutxabank’ to save words, so that the signs at issue will present at most a very low degree of phonetic similarity, which will also apply in the unlikely event that the individual letter ‘k’ of the earlier mark is also pronounced.
99      In the present case, as stated in paragraph 93 above, the applicant’s argument is based on the false premiss that the letter ‘k’ would be the dominant element of the signs at issue.
100    Consequently, although the signs at issue resemble each other in that they are both composed of the letter ‘k’, conversely, they are distinguished by the word elements ‘kutxabank’ and ‘kredit’ of Earlier Mark 2, which have no equivalent in the mark applied for. Earlier Mark 2 therefore has, irrespective of whether the letter ‘k’ composing it will be pronounced by the relevant public, a very different sound and length from those of the mark applied for, consisting of that letter alone.
101    The Board of Appeal therefore did not make an error of assessment in considering that the signs at issue presented, at most, a very low degree of phonetic similarity.
(3)    The conceptual similarity of the signs at issue
102    The applicant maintains, in essence, that, having regard, first, to the dominant character of the letter ‘k’ in Earlier Mark 2 and, second, to the intrinsic meaning of the letter ‘k’, the signs at issue must be considered to be similar to at least an average degree.
103    EUIPO and the intervener dispute the applicant’s arguments.
104    In paragraphs 80 and 81 of the contested decision, the Board of Appeal indicated, in essence, that, in so far as it had not been shown that the upper case letter ‘K’ had a particular meaning in one of the languages of the European Union and that the parties had not indicated what concept would be conveyed by that letter in the present case, the signs at issue differed by the concepts invoked by the word elements ‘kutxabank’ and ‘kredit’ of the earlier mark. The signs at issue were therefore conceptually different.
105    In the present case, it should be observed that the applicant’s argument is based on the false premiss that the letter ‘k’ is the dominant element of the signs at issue. As pointed out in paragraph 100 above, however, the assessment of the similarity of the signs at issue cannot be limited solely to a comparison of the letter ‘k’. The word elements ‘kutxabank’ and ‘kredit’ of Earlier Mark 2, which occupy a significant and notable part of that sign, have a significance that cannot be played down and classified as secondary for the purposes of the examination of the similarity of the signs. In that regard, as the Board of Appeal observed in paragraph 80 of the contested decision, although the work ‘kutxabank’ is meaningless as a whole, it evokes the concept of a bank in most of the European Union languages. It follows that the relevant public will in all likelihood associate Earlier Mark 2 with the concept of a bank.
106    Furthermore, it should be borne in mind that, according to the case-law, the letters of the alphabet do not generally have a semantic meaning (see, to that effect, judgment of 7 October 2014, Tifosi Optics v OHIM – Tom Tailor (T), T‑531/12, not published, EU:T:2014:855, paragraph 79 and the case-law cited). Nor has the applicant shown that the upper-case letter ‘K’ had a particular meaning in one of the European Union languages, or what the concept conveyed by that letter would be in the present case. In that regard, in its written pleadings, the applicant observes only that it has already been held, referring to the judgment 13 March 2018, Kiosked v EUIPO – VRT (K) (T‑824/16, EU:T:2018:133), that there might be conceptual identity between signs where those signs referred to the same letter of the alphabet. In the present case, moreover, it is not a matter of comparing two letters, but of comparing the letter ‘k’ to a sign composed of that letter and the words ‘kutxabank’ and ‘kredit’. It follows that the mark applied for does not convey any particular concept.
107    Therefore, in so far as the mark applied for does not convey any particular concept and Earlier Mark 2 will be associated with the concept of a bank, the Board of Appeal did not make an error of assessment in considering that the signs at issue were conceptually different.
(c)    The likelihood of confusion
108    The applicant maintains, in essence, that the similarity of the signs at issue, which is between average and high, together with the identity and the strong similarity of the services at issue, ought to have led the Board of Appeal to conclude that there was a likelihood of confusion.
109    EUIPO and the intervener dispute the applicant’s arguments.
110    A global assessment of the likelihood of confusion implies some interdependence between the relevant factors, and in particular a similarity between the trade marks and between these goods or services. Accordingly, a lesser degree of similarity between these goods or services may be offset by a greater 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).
111    Furthermore, it must be borne in mind that the average consumer only rarely has the opportunity to make a direct comparison of the different marks, but must rely on the imperfect image of them which he or she retains in his or her memory (see judgment of 19 October 2017, Aldi v EUIPO – Sky (SKYLITe), T‑736/15, not published, EU:T:2017:729, paragraph 119 and the case-law cited).
112    The Board of Appeal, taking account of the very low visual and phonetic similarity of the signs at issue, their different conceptual character, the average distinctiveness of Earlier Mark 2 and of the high level of attention of the relevant public, concluded that there existed no likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, for the services referred to in the mark applied for and included in Class 35, even though those services were identical to the services in Class 35 covered by Earlier Mark 2.
113    As a preliminary point, it should be observed that the applicant does not dispute the Board of Appeal’s finding that Earlier Mark 2 has average distinctiveness.
114    In the present case, it follows from the foregoing developments that, first, the services at issue and included in Class 35 had been correctly considered by the Board of Appeal to be identical. Second, the signs at issue presented, visually and phonetically, a low degree and a very low degree of similarity. Conceptually, they were different. Third, Earlier Mark 2 had average distinctiveness. Fourth, the relevant public for the services at issue had a high level of attention.
115    It must therefore be concluded, in the context of a global assessment of the likelihood of confusion, that, in spite of the identity of the services at issue, there exists no likelihood of confusion in the present case, regard being had, in particular, to the low similarity of the signs at issue and the high level of attention of the relevant public.
116    Accordingly, the Board of Appeal did not make an error of assessment in concluding, in the present case, that there existed no likelihood of confusion.
117    It follows from the foregoing that the single plea in law in the main action, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, cannot be upheld and that, in consequence, the main action must be dismissed in its entirety.
B.      The cross-claim
118    In support of its claim, the intervener relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
119    It maintains, in essence, that the Board of Appeal made an error of assessment in considering that there was a likelihood of confusion with respect to all the services referred to in the mark applied for and included in Class 36. More precisely, the intervener disputes the Board of Appeal’s findings relating to the comparison of the signs between the mark applied for and Earlier Mark 1.
120    EUIPO and the applicant dispute the intervener’s arguments.
121    It should be stated at the outset that there is no reason to interfere with the Board of Appeal’s findings, which, moreover, are not disputed by the applicant, concerning the identical nature of the services in Class 36 referred to in the mark applied for and the services covered by Earlier Mark 1.
1.      The comparison of the signs at issue
122    In the present case, the marks to be compared are presented as follows:
–        the mark applied for is the following figurative sign:
–        Earlier Mark 1 is the following figurative sign:
123    It should be stated at the outset that there is no reason to interfere with the Board of Appeal’s findings, which, moreover, are not disputed by the applicant, concerning the conceptual similarity of the signs at issue.
124    In paragraph 54 of the contested decision, the Board of Appeal considered, correctly, that, in so far as the parties had neither shown that the letter ‘k’ had a particular meaning in one of the languages of the European Union nor indicated what concept would, in the present case, be conveyed by that letter, it was not possible to carry out a conceptual comparison, which was therefore neutral.
(a)    The visual similarity of the signs at issue
125    The intervener maintains, in essence, that the signs at issue are visually different, since they differ entirely in their stylisation. In particular, the letters ‘k’ of those signs are written in a significantly different font. The earlier mark is composed of the lower-case letter ‘k’ in black with three white dots and one red dot in the respective outer edges of the letter. In addition, the black dot represented alongside the upper-case letter ‘K’ in the mark applied for is such a prominent figurative feature that it will attract the public’s attention from a visual point of view, it is non-negligible and further differentiates the two signs.
126    EUIPO and the applicant dispute the intervener’s arguments.
127    In paragraph 52 of the contested decision, the Board of Appeal considered, in essence, that, taking account of their overall impression, dominated by the bold black lines of the letter ‘k’ and the presence of dots, the signs at issue had a below-average degree of visual similarity.
128    In that regard, it should be borne in mind that, according to the case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see judgment of 21 May 2025, Embassy Sporthandel v EUIPO – Zwibo (BULL’S THE DART SIDE OF LIFE), T‑1054/23, not published, EU:T:2025:528, paragraph 22 and the case-law cited).
129    In this instance, the earlier mark is a figurative mark composed of an element representing the letter ‘k’, written in bold and black, with rounded extremities. On each extremity of that letter is a dot, white on the vertical central bar and on the diagonal line pointing towards the upper right part, and red on the diagonal line pointing towards the lower right part. The mark applied for is a figurative mark composed of an element also representing a letter ‘k’, written in bold and in black, with flat extremities. At the bottom right of that letter is a dot.
130    It follows from the above descriptions, first, that the signs at issue coincide in their composition and in certain elements of stylisation of the letter ‘k’. More precisely, the signs at issue are composed of dots and of an element that will be seen by the consumer as a stylised letter ‘k’. Furthermore, that letter ‘k’ is represented in the signs at issue as a bold character and in black.
131    Second, the signs at issue are distinguished by certain aspects of stylisation of the letter ‘k’. The graphic representation of the letter ‘k’ is not the same. Whereas the letter ‘k’ is stylised by flat edges in the mark applied for, it is stylised by rounded edges in Earlier Mark 1. Furthermore, the signs at issue are distinguished by the number of dots of which they are composed and by their positioning and colour. The mark applied for is composed of a single dot. That dot is placed alongside the letter ‘k’, at the bottom right of that letter, and is black in colour. The earlier mark, on the contrary, is composed of four dots. Among those four dots, three are white and one is red. Those dots are placed at each extremity of the letter ‘k’.
132    It follows that, while the signs at issue differ visually in the number, colour and positioning of the dots of which they are composed and in certain aspects of the stylisation of the letter ‘k’, they coincide above all in that lightly stylised letter ‘k’. That identical element will create in the mind of the relevant public an impression of visual similarity, which cannot be called into question by the other elements of the signs at issue. Although those other elements cannot be ignored, they do not in themselves suffice to confer a different overall impression on the signs, contrary to the intervener’s contention. Those elements, in their simple representation, cannot divert the consumer’s attention from that identical letter ‘k’. The overall impression produced by the signs at issue thus leads to the conclusion that they present a higher than average visual similarity.
133    Furthermore, as the applicant has correctly observed, the intervener’s argument that the Board of Appeal made an error of assessment in not considering that the signs at issue were visually different is not supported by the judgment of 9 November 2022, L’Oréal v EUIPO – Heinze (K K WATER) (T‑610/21, not published, EU:T:2022:700), invoked in support of that argument. In that judgment, the General Court found that the signs at issue displayed a low degree of visual similarity, although, unlike the signs at issue in the present case, the signs were distinguished, in particular, by the graphic and stylistic differences of the letter ‘k’ common to them, and by the presence of an additional word element in the mark applied for.
134    It follows from the foregoing that the intervener’s argument must be rejected.
135    Nonetheless, it should be observed that the Board of Appeal made an error of assessment in considering that the signs at issue displayed only a below-average degree of similarity. However, that error has no impact on the finding of a likelihood of confusion, since that finding is based on a lower visual similarity.
(b)    The phonetic similarity of the signs at issue
136    The intervener maintains, in essence, that the Board of Appeal’s findings are incorrect. Irrespective of the different rules on pronunciation in the different parts of the relevant territory, the pronunciation of the signs coincides in the sound of the letters ‘k’. However, the contested mark is pronounced ‘K dot’, while the earlier mark is pronounced ‘k’. Consequently, the signs at issue are phonetically similar to an average degree.
137    EUIPO and the applicant dispute the intervener’s arguments.
138    In paragraph 53 of the contested decision, the Board of Appeal considered that the signs at issue were phonetically identical, in so far as they had to be perceived as representing the letter ‘k’, and that they would therefore be pronounced in the same way.
139    In that regard, in so far as it is established that the relevant public will perceive the letter ‘k’ in the signs at issue, which the intervener does not dispute, the Board of Appeal did not make an error of assessment in considering that the signs at issue were phonetically identical.
140    As EUIPO and the applicant have correctly submitted, there is no reason to consider that the relevant public will pronounce the mark applied for as ‘k dot’. Nor is it common practice to pronounce a full stop at the end of a word element (see, to that effect, judgment of 8 March 2023, Sympatex Technologies v EUIPO – Liwe Española (Sympathy Inside), T‑372/21, not published, EU:T:2023:111, paragraph 114 and the case-law cited). Furthermore, the intervener has provided no conclusive evidence to that effect.
2.      The likelihood of confusion
141    The intervener maintains, in essence, that the relevant public will perceive the visual differences between the signs at issue, so that, even in respect of the services at issue in Class 36 at issue which have been deemed to be identical, there is no likelihood of confusion in the present case. If decisive weight were given to the phonetic identity between two letters taken in isolation, that would lead to the monopolisation by the applicant of the letter ‘k’ per se, for a specific range of goods or services.
142    EUIPO and the applicant dispute the intervener’s arguments.
143    The Board of Appeal, taking account of the below-average degree of visual similarity of the signs at issue, their phonetic identity and the average distinctiveness of Earlier Mark 1, concluded, in paragraph 63 of the contested decision, that there existed a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, for the services at issue in Class 36 which were deemed to be identical, even allowing the relevant public a higher level of attention.
144    As a preliminary point, it should be observed that the applicant does not dispute the Board of Appeal’s finding that Earlier Mark 1 displays average distinctiveness, which must be upheld.
145    In the present case, it follows from the foregoing developments that, first, the services at issue and included in Class 36 had been correctly considered by the Board of Appeal to be identical. Second, the signs at issue displayed an above average visual similarity and were phonetically identical. Third, the earlier mark had average distinctiveness. Fourth, the relevant public for the services at issue had a higher level of attention.
146    Consequently, it must be concluded, in the context of an overall assessment of the likelihood of confusion, that, in spite of a higher level of attention on the part of the relevant public, a likelihood of confusion exists in the present case, having regard in particular to the above-average visual similarity of the signs at issue, their phonetic identity and the identity of the services at issue.
147    Thus, contrary to the intervener’s contention, the differences pointed out in paragraphs 133 and 134 above between the signs, having regard to their simplicity, do not suffice to preclude a likelihood of confusion.
148    The Board of Appeal therefore did not make an error of assessment in finding, in the present case, that there existed a likelihood of confusion.
149    Last, that finding cannot be called into question by the intervener’s argument relating to the requirement of availability connected with the letter ‘k’. As is apparent from paragraph 147 above, the finding that there exists a likelihood of confusion between the marks at issue does not follow solely from the existence of phonetic identity between the signs at issue, but also from the existence of an above-average visual similarity of those signs and the identity of the services at issue. In that regard, it should be borne in mind that the finding by the General Court of the existence of a likelihood of confusion leads only to the protection of a certain combination of elements without protecting as such an element forming part of that combination (see, to that effect, order of 30 January 2014, Industrias Alen v The Clorox Company, C‑422/12 P, EU:C:2014:57, paragraph 45 and the case-law cited).
150    It follows from the foregoing that the single plea in the cross-claim, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, cannot be upheld and that the cross-claim must therefore be dismissed in its entirety
151    Having regard to all of the foregoing, the main action and the cross-claim must be dismissed.
Costs
152    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.
153    Furthermore, under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
154    As the applicant and the intervener have failed, respectively, in their respective actions, they must each be ordered to bear their own costs.
155    Furthermore, as regards the intervener’s claim that the applicant should be ordered to pay the costs incurred before the Board of Appeal, it is sufficient to state that, as the main action brought against the contested decision has been dismissed, the operative part of that decision continues to govern the costs in question (see, to that effect, judgment of 28 April 2021, Comercializadora Eloro v EUIPO – Zumex Group (JUMEX), T‑310/20, not published, EU:T:2021:227, paragraph 45).
156    Last, as a hearing has been held and as the applicant and the intervener have been unsuccessful in their respective actions, they shall each pay the costs incurred by EUIPO in their respective actions, in accordance with the forms of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the main action and the cross-claim;
2.      Orders Kutxabank, SA to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) in the context of the main proceedings;
3.      Orders Klarna Bank AB to bear its own costs and to pay those incurred by EUIPO in the context of the cross-claim.
Gâlea
Costeira
Ricziová
Delivered in open court in Luxembourg on 13 May 2026.
V. Di Bucci
E. Buttigieg
Registrar
President
*      Language of the case: English.