ORDER OF THE GENERAL COURT (Third Chamber)
17 July 2025 (*)
( EU trade mark – Invalidity proceedings – EU figurative mark ECE LOGISTICS – International registration designating the European Union of the earlier figurative mark ECE – Earlier EU word mark ECE – Earlier national word mark
ECE Logistics – Relative ground for invalidity – No likelihood of confusion – No similarity between the goods and services – Article 8(1)(b) and Article 53(1)(a) of Regulation (EC) No 207/2009 – Obligation to state reasons – Article 94(1) of Regulation (EU) 2017/1001 – Action manifestly lacking any foundation in law )
In Case T‑443/24,
ECE Group GmbH & Co. KG, established in Hamburg (Germany), represented by M. Kloth, M. Tillwich, P. Funke and R. Briske, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
ECE Logistics sp. z o.o., established in Zielona Góra (Poland), represented by T. Gawliczek, lawyer,
THE GENERAL COURT (Third Chamber),
composed of P. Škvařilová-Pelzl, President, I. Nõmm and R. Meyer (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, ECE Group GmbH & Co. KG, seeks the annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 25 June 2024 (Case R 1948/2023-1) (‘the contested decision’).
Background to the dispute
2        On 16 November 2022, the applicant filed with EUIPO an application for a declaration of invalidity of the EU trade mark which had been registered following an application lodged, on 2 February 2015, by ECE Logistics sp. z o.o. sp. k., the predecessor in law to the intervener, ECE Logistics sp. z o.o., for the following figurative sign:
3        The services covered by the contested mark, in respect of which a declaration of invalidity was sought, were in Classes 35 and 39 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and corresponded, for each of those classes, to the following description:
–        Class 35: ‘Consumer advice shops’;
–        Class 39: ‘Transport services; Shipping services; Transport of specialist goods; Shipping of documents; Carting; Hauling; Shipping of goods and transport of passengers; Unloading cargo; Motor car transport services; Railway transport; International transport; Storage and warehousing of goods; Loading, handling and unloading of goods; Packaging of goods; Transport information; Shipping; Storage of goods; Brokerage in the field of transport and freight forwarding; Hire of pallet cages; Container rental; Leasing of trailers; Rental of goods vehicles; Rental of commercial vehicles; Rental of portable storage containers; Rental of transport vehicles; Rental and hire of vehicles; Rental of storage facilities’.
4        The application for a declaration of invalidity was based on the following earlier rights:
–        the international registration designating the European Union of the figurative mark reproduced below, registered on 21 January 2008 under No 965204, in respect of services in Classes 35, 36, 37 and 42, corresponding, for each of those classes, to the following description:
–        Class 35: ‘Planning of real estate property and establishments from a business point of view, particularly of retail and service establishments such as shopping centers, of health facilities and care facilities such as hospitals, old people’s homes and nursing homes, of traffic stations such as railway stations and airports, parking facilities such as multi-storey car parks, of office buildings and administrative buildings and of logistics facilities such as goods distribution centers; marketing research; advertising; business management; business administration; office functions’;
–        Class 36: ‘Financial planning, rental and administration of real estate property and establishments, particularly of retail and service establishments such as shopping centers, of health facilities and care facilities such as hospitals, old people’s homes and nursing homes, of traffic stations such as railway stations and airports, parking facilities such as multi-storey car parks, of office buildings and administrative buildings and of logistics facilities such as goods distribution centers (included in this class); insurance underwriting; financial affairs; monetary affairs; real estate affairs’;
–        Class 37: ‘Construction of real estate property and establishments, particularly of retail and service establishments such as shopping centers, of health facilities and care facilities such as hospitals, old people’s homes and nursing homes, of traffic stations such as railway stations and airports, parking facilities such as multi-storey car parks, of office buildings and administrative buildings and of logistics facilities such as goods distribution centers; construction; repair work carried out to the aforesaid real estate and establishments, installation services’;
–        Class 42: ‘Technical planning of real estate property and establishments, particularly of retail and service establishments such as shopping centers, of health facilities and care facilities such as hospitals, old people’s homes and nursing homes, of traffic stations such as railway stations and airports, parking facilities such as multi-storey car parks, of office buildings and administrative buildings and of logistics facilities such as goods distribution centers; scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software’;
–        the EU word mark ECE, registered on 29 August 2000 under No 1157940 in respect of services in Classes 35, 36, 37 and 42, corresponding, for each of those classes, to the following description:
–        Class 35: ‘Economic planning and administration of large commercial projects such as shopping centres, office buildings, business parks’;
–        Class 36: ‘Rental of large commercial projects such as shopping centres, office buildings, business parks’;
–        Class 37: ‘Construction of large commercial projects such as shopping centres, office buildings, business parks’;
–        Class 42: ‘Technical planning of large commercial projects such as shopping centres; office buildings, business parks’;
–        the German word mark ECE Logistics, registered on 1 June 2001 under No 300557272 in respect of services in Classes 35, 37 and 42, corresponding, for each of those classes, to the following description:
–        Class 35: ‘Marketing, business management, company administration’;
–        Class 37: ‘Economic planning of logistics facilities such as goods distribution centres’;
–        Class 42: ‘Construction of logistics facilities such as goods distribution centres; technical planning of logistics facilities such as goods distribution centres’.
5        The ground relied on in support of the application for a declaration of invalidity was that set out in Article 60(1)(a) of 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), read in conjunction with Article 8(1)(b) of that regulation.
6        On 25 July 2023, the Cancellation Division dismissed the application for a declaration of invalidity in its entirety.
7        On 13 September 2023, the applicant filed a notice of appeal with EUIPO against the Cancellation Division’s decision.
8        By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. More specifically, the Board of Appeal found, like the Cancellation Division, that the services in respect of which the contested mark had been registered were dissimilar to the services covered by the earlier marks.
Forms of order sought
9        The applicant claims that the Court should:
–        annul and alter the contested decision, to the effect that the application for a declaration of invalidity be upheld and the contested mark annulled in its entirety;
–        order EUIPO to pay the costs.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
11      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
12      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
13      In the present case, the Court considers that it has sufficient information from the documents in the file and decides, pursuant to that article, to give a decision without taking further steps in the proceedings.
14      Given the date on which the application for registration of the contested mark was filed, namely 2 February 2015, which is decisive for the purpose of identifying the applicable substantive law, the facts of the present case are governed by the substantive provisions 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 2017/1001) (see, to that effect, order of 5 October 2004, Alcon v OHIM, C‑192/03 P, EU:C:2004:587, paragraphs 39 and 40, and judgment of 23 April 2020, Gugler France v Gugler and EUIPO, C‑736/18 P, not published, EU:C:2020:308, paragraph 3 and the case-law cited). Consequently, the references made by the Board of Appeal in the contested decision and by the parties in their written pleadings to Article 8(1)(b) and Article 60(1)(a) of Regulation 2017/1001 must be understood as referring respectively to Article 8(1)(b) and Article 53(1)(a) of Regulation No 207/2009, the wording of which is identical.
15      Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the case is governed by the procedural provisions of Regulation 2017/1001.
16      In support of the action, the applicant relies on two pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation No 207/2009 and, second, failure to state reasons in the contested decision.
17      The Court considers it appropriate, first of all, to examine the second plea.
The second plea, alleging failure to state reasons in the contested decision
18      The applicant submits, in essence, that the Board of Appeal failed to fulfil its obligation to state reasons by not sufficiently substantiating the reasons why, first, it concluded that there was no similarity between the services at issue and, second, it disregarded the earlier national decisions on which the applicant had relied in support of its arguments.
19      EUIPO and the intervener dispute the applicant’s arguments.
20      It must be borne in mind at the outset that, under the first sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO must state the reasons on which they are based. That duty to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. It has two purposes: to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights, and to enable the Courts of the European Union to exercise their power to review the legality of the decision. It is not necessary for the reasoning to address all relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 12 March 2020, Maternus v EUIPO – adp Gauselmann (Jokers WILD Casino), T‑321/19, not published, EU:T:2020:101, paragraph 15 and the case-law cited).
21      Furthermore, the duty to state reasons does not require the Boards of Appeal to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. It is sufficient to set out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 12 March 2020, Jokers WILD Casino, T‑321/19, not published, EU:T:2020:101, paragraph 16 and the case-law cited).
22      In addition, the reasoning may be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its review (see judgment of 12 March 2020, Jokers WILD Casino, T‑321/19, not published, EU:T:2020:101, paragraph 17 and the case-law cited).
23      Lastly, the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasons given are correct, the latter being a matter going to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 26 September 2017, La Rocca v EUIPO (Take your time Pay After), T‑755/16, not published, EU:T:2017:663, paragraph 42 and the case-law cited).
The complaint that the Board of Appeal did not sufficiently substantiate the lack of similarity between the services at issue
24      In that respect, first, as regards the services in Class 35 covered by the contested mark, the Board of Appeal, in paragraphs 30 to 32 of the contested decision, found that those services, concerning consumer advice shops, differed from the services in Classes 35, 36, 37 and 42 covered by the earlier international registration in their nature, their purpose, their providers and their end users. It noted, in particular, that, unlike the
services concerning consumer advice shops, the services in Class 35 covered by that international registration involved decision-making and strategic management in the real estate sector, were provided by specialised companies and required specific skills in that sector. In paragraph 33 of the contested decision, the Board of Appeal applied the same reasoning to the services covered by the other two earlier marks.
25      Second, as regards the services in Class 39 covered by the contested mark, the Board of Appeal, in paragraph 34 of the contested decision, observed the nature of those services and, first of all, stated that none of those services shared a similar purpose, nature or method of use to the services covered by the earlier marks. Next, it added that the services at issue did not originate from the same providers, were not likely to be found through similar distribution channels and did not target the same end users. Lastly, it stated that the services at issue were neither interchangeable nor in competition with each other. It therefore concluded that they were dissimilar.
26      More specifically, in paragraph 35 of the contested decision, as regards the services in Class 36 covered by the earlier marks, the Board of Appeal noted the fact that those services were generally provided by financial institutions of a different nature from those providing the services in Class 39 covered by the contested mark.
27      In paragraph 36 of the contested decision, concerning the services in Class 37 covered by the earlier marks, the Board of Appeal stated that the fact that those services included the construction of retail and service establishments and logistics facilities did not make them similar to the services at issue in Class 39, since their nature and purpose were different from those services, as well as the technical means to implement them.
28      In paragraph 37 of the contested decision, as regards the services in Class 42 covered by the earlier marks, the Board of Appeal maintained that, although those services and the services in Class 39 covered by the contested mark had some connection to the extent that they could be implemented for the purposes of logistics facilities and distribution centres, that fact is not sufficient to conclude that those services are complementary within the meaning of the case-law.
29      It follows from the foregoing that the Board of Appeal, in the contested decision, substantiated in a clear and unequivocal manner the reasons why the services at issue were dissimilar.
30      The applicant’s complaint must therefore be rejected as manifestly unfounded.
The complaint that the Board of Appeal did not sufficiently substantiate the reasons why the earlier national decisions were not relevant
31      In that regard, it has been pointed out in paragraph 23 above that the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasons given are correct, the latter being a matter going to the substantive legality of the contested measure.
32      It should be noted that the applicant’s arguments relate, in fact, to the merits of the statement of reasons, since it complains, in essence, that the Board of Appeal failed to take account of the factual and legal considerations set out in the earlier national decisions which it submitted. Accordingly, the applicant’s complaint, which does not relate to the breach of the obligation to state reasons, is irrelevant in the context of the present
plea.
33      In any event, in paragraph 41 of the contested decision, the Board of Appeal stated that the decision of the Bundespatentgericht (Federal Patent Court, Germany) of 3 July 2023 in Case 26 W (pat) 19/17 was not comparable to the case in question, given that that decision referred to different services. It observed, in particular, that that decision compared transport, storage and packing of goods with services related to organisational advice and planning of logistical processes, whereas, in the present case, the services referred to decision-making in the real estate sector to support business objectives including, inter alia, the planning and construction of real estate properties and retail and service establishments, such as shopping centres, rather than the organisation and planning of logistics.
34      In paragraph 42 of the contested decision, the Board of Appeal stated, as regards the decision of the Bundespatentgericht (Federal Patent Court) of 4 April 2001 in Case 26 W (pat) 121/00, that it disagreed with the comparison made in that decision and found that the construction and transport services were dissimilar, as it had explained in detail in paragraph 34 of the contested decision. Furthermore, the Board of Appeal noted that the decision of the Bundespatentgericht (Federal Patent Court) did not contain any reference to the perception of the German target public, which was relevant for the purposes of the analysis of the earlier German mark. It found, in particular, that that decision merely assumed that the German public would consider that the services at issue were provided by the same undertakings
due to their nature and purpose.
35      It follows from the foregoing that the Board of Appeal, in the contested decision, substantiated in a clear and unequivocal manner the reasons why the earlier national decisions cited by the applicant had to be disregarded.
36      Moreover, the applicant cannot usefully criticise the Board of Appeal for not duly taking into consideration the decision of the Bundespatentgericht (Federal Patent Court) of 14 November 2007 in Case 26 W (pat) 26/07, given that, as
rightly stated by EUIPO and the intervener in their written pleadings, that decision had not been submitted by the applicant before the Board of Appeal.
37      The applicant’s complaint must therefore be rejected as manifestly unfounded.
38      In addition, it must be noted that the statement of reasons in the contested decision enabled the applicant, as the application shows, to understand the reasons justifying the adoption of that decision and to formulate its objections, and the EU judicature to exercise its power of review.
39      It follows from all of the foregoing that the Board of Appeal did not fail, in the present
case, to fulfil its obligation to state reasons.
40      The present plea must therefore be rejected as manifestly unfounded.
The first plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
41      The applicant submits, in essence, that the Board of Appeal erred in finding that the services in respect of which the contested mark had been registered were dissimilar to the services covered by the earlier marks. According to the applicant, the services at issue are, at the very least, similar to a low degree. In that regard, first of all, it claims, on the basis of the decision of the Bundespatentgericht (Federal Patent Court) of 4 April 2001 in Case 26 W (pat) 121/00, that there is an inherent similarity between the construction services covered by the earlier marks and the transport services covered by the contested mark. Transport services are closely linked to the real estate sector as a necessary element of construction and maintenance and should therefore be included in the activities of that sector, which covers a large number of separate services. Next, the applicant submits that the publics targeted by the services at issue are the same, since the services which it offers are complementary to the intervener’s services. Lastly, it claims that the marks at issue cover identical services. The earlier marks, like the contested mark, are registered for logistics-related services. The contested mark is registered for
storage, warehousing of goods and rental and hiring services, whereas the earlier marks cover construction, economic and technical planning, rental and administration services, which extend to logistics centres.
42      EUIPO and the intervener dispute the applicant’s arguments. The intervener contends, inter alia, that Annexes A9 and A10 to the application, which were submitted for the first time before the Court, are inadmissible.
43      As a preliminary point, it should be noted that an EU trade mark is regarded as valid until it has been declared invalid by EUIPO following invalidity proceedings. The contested mark therefore enjoys a presumption of validity, which is the logical consequence of the check carried out by EUIPO in the examination of an application for registration. In those circumstances, it is for the person who has filed the application for a declaration of invalidity to place before EUIPO the specific facts which call the validity of the contested mark into question (see judgment of 23 September 2020, Clouds Sky v EUIPO – The Cloud Networks (Wi-Fi Powered by The Cloud), T‑738/19, not published, EU:T:2020:441, paragraph 36 and the case-law cited).
44      Under Article 53(1)(a) of Regulation No 207/2009, read in conjunction with Article 8(1)(b) of that regulation, an EU trade mark is to be declared invalid on application by the proprietor of an earlier trade mark 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.
45      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. 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 5 June 2024, Habitat Barcelona Unión Constructora v EUIPO – Acomodeo Marketplace (ACOMODEO), T‑365/23, not published, EU:T:2024:361, paragraph 69 and the case-law cited).
46      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 5 June 2024, ACOMODEO, T‑365/23, not published, EU:T:2024:361, paragraph 70 and the case-law cited).
47      Lastly, it must be borne in mind that, according to settled case-law, in assessing the similarity of the goods or services, 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 20 February 2013, Caventa v OHIM – Anson’s Herrenhaus (BERG), T‑224/11, not published, EU:T:2013:81, paragraph 34 and the case-law cited).
The services in Class 35 covered by the contested mark
48      It must be noted at the outset that the applicant has not put forward any argument in the application for the purpose of
challenging the Board of Appeal’s assessments concerning the lack of similarity between the services in Class 35 covered by the contested mark and the services in Classes 35, 36, 37 and 42 covered by the earlier marks, with the result that the plea, in so far as it relates to those services, can only be regarded as inadmissible, pursuant to Article 177(1)(d) of the Rules of Procedure.
49      In any event, it must be held, as the Board of Appeal correctly stated in paragraphs 30 to 33 of the contested decision, that the services concerning ‘consumer advice shops’ covered by the contested mark had, inter alia, a different nature and purpose from the services covered by the earlier marks.
The services in Class 39 covered by the contested mark
50      The Board of Appeal found, in essence, in paragraphs 34 to 39 of the contested decision, that the services in Class 39 covered by the contested mark, which relate to the fields of transport, shipping and logistics, were dissimilar to the services in Classes 35, 36, 37 and 42 in respect of which the earlier marks had been registered. More specifically, it stated that the services at issue did not have the same purpose, nature or method of use. In addition, it found that they did not have the same providers, distribution channels or end users. Finally, it also noted that they were neither interchangeable nor in competition with each other.
51      Contrary to what the applicant claims, there is no need to call into question those assessments of the Board of Appeal, which are correct.
52      First, the Board of Appeal rightly found that the services in Class 39 covered by the contested mark, which essentially consisted of transport and shipping services, storage and warehousing of goods, had a different nature, purpose or method of use from the services covered by the earlier marks, which consisted, in essence, of real estate, business, financial or technical assistance services, construction and building repair services and, lastly, industrial analysis and research services, design and development of computer hardware and software in relation to real estate. The services covered by the earlier marks concern different fields of activity, require different skills and satisfy different needs from those concerned by the services in Class 39 covered by the contested mark. They are intended to help other undertakings manage and improve their activities by increasing their visibility or by securing better returns or to support businesses by providing assistance in the fields of real estate, insurance, finance or technical matters (judgment of 31 January 2024, ECE Group v EUIPO – ECE Piknik Ürünleri Plastik ve Kömür Üretim Ithalat Ihracat (ECE QUALITY OF LIFE), T‑581/22, not published, EU:T:2024:47, paragraphs 45 and 46).
Moreover, as the Board of Appeal also correctly stated, the services at issue are generally provided by different undertakings. The services in Class 39 covered by the contested mark are offered by transport undertakings, whereas the services covered by the earlier marks are offered by financial institutions, building companies or professionals, such as engineers or architects.
53      In addition, with the exception of the reference to the decision of the Bundespatentgericht (Federal Patent Court) of 4 April 2001 in Case 26 W (pat) 121/00, with which the Board of Appeal expressed its disagreement in detail in paragraph 42 of the contested decision, the applicant does not put forward any argument to dispute the lack of inherent similarity between the services at issue. It follows from settled case-law that the EU trade mark regime is autonomous and that the legality of decisions of the Boards of Appeal is assessed solely on the basis, in the present case, of Regulation No 207/2009, with the result that EUIPO, or, on appeal, the General Court, is not required to reach the same conclusions as those arrived at by national authorities or courts in similar circumstances (see judgment of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 37 and the case-law cited). The applicant’s arguments, based on the decision of the Bundespatentgericht (Federal Patent Court), are therefore not such as to call into question the Board of Appeal’s assessment.
54      Second, the Board of Appeal correctly found that the services at issue targeted different publics. In that regard, it must be stated that the fact that the services in Class 39 covered by the contested mark and the services covered by the earlier marks are aimed at a public of professionals does not, however, mean that the publics of the services at issue coincide. It is also necessary that those services are aimed at the same type of professionals. As EUIPO correctly notes, the services in Class 39 covered by the contested mark are aimed at professionals seeking to obtain services in the field of transport, shipping, storage and warehousing of goods, whereas the services covered by the earlier marks are aimed, as regards, first, the services in Class 37, at professionals seeking to obtain services in the fields of construction of
retail and service establishments and logistics facilities, and, as regards, second, the services in Classes 35, 36 and 42, at professionals seeking to obtain services in the field of planning of real estate property and establishments from a business, financial or technical point of view. Consequently, the applicant’s argument that the relevant publics overlap must be disregarded as unfounded.
55      Third, it follows from the case-law that where goods or services are intended for different publics, they cannot be regarded as interchangeable (see judgment of 5 June 2024, ACOMODEO, T‑365/23, not published, EU:T:2024:361, paragraph 82 and the case-law cited). The Board of Appeal was therefore fully entitled to conclude that the services at issue were not in competition with each other
in the present case.
56      The same is true as regards the complementary nature of the services at issue. Goods or services which are complementary 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. By definition, goods or services intended for different publics cannot be complementary (see judgment of 31 January 2024, ECE QUALITY OF LIFE, T‑581/22, not published, EU:T:2024:47, paragraph 34 and the case-law cited). The Board of Appeal was therefore fully entitled to conclude that the services at issue were not complementary in the present case.
57      The applicant’s claim that transport services are closely linked to the real estate sector as a necessary element of construction and maintenance is not sufficient to conclude that the services at issue are complementary within the meaning of the case-law. Almost all sectors of activity depend on transport services. Recourse to those services is therefore too general a characteristic to justify, by itself, a finding that all the services at issue are complementary and, thus, similar (see, to that effect, judgment of 1 March 2005, Sergio Rossi v OHIM – Sissi Rossi (SISSI ROSSI), T‑169/03, EU:T:2005:72, paragraph 62).
58      Fourth, it must be borne in mind that, according to settled case-law, the comparison of the goods and services, as required under Article 8(1)(b) of Regulation No 207/2009, must be based on the description, as it appears in the registration document,
of the goods and services designated by the earlier mark and not on the goods and services for which the trade mark is actually used (see, to that effect, judgment of 14 February 2019, Giove Gas v EUIPO – Primagaz (KALON AL CENTRO DELLA FAMIGLIA), T‑34/18, not published, EU:T:2019:94, paragraph 30 and the case-law cited).
59      In the present case, it has been noted in paragraph 52 above that the services covered by the earlier marks designated, in essence,
real estate, business, financial or technical assistance services, construction and building repair services and, lastly, industrial analysis and research services, design and development of computer hardware and software in relation to real estate.
60      Consequently, the applicant cannot usefully claim that an additional factor in the likelihood of confusion arose from the fact that the marks at issue covered logistics-related services, given that the description of the services covered by the earlier marks does not refer to that type of services.
61      In any event, as the Board of Appeal correctly found, the fact that construction, planning, rental and management services may, in absolute terms, be implemented with regard to logistics facilities and distribution centres is not sufficient to conclude, as the applicant submits, that they are similar to logistics services. To follow that argument of the applicant, which is too general, would be tantamount to finding that the services provided by almost all sectors of activity which depend on construction, planning, rental and management services are similar to those services (see, to that effect, judgment of 1 March 2005, SISSI ROSSI, T‑169/03, EU:T:2005:72, paragraph 62).
62      In view of the foregoing considerations, the Board of Appeal did not make an error of assessment in finding that the services covered by the marks at issue were dissimilar.
63      Accordingly, as has been stated in paragraph 46 above, 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.
64      Since the Board of Appeal was right to find that there was no similarity between the services at issue, it was fully entitled to conclude, on the basis of that finding alone, that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 in the present
case.
65      The present plea must therefore be rejected as manifestly unfounded, without it being necessary to rule on the inadmissibility of Annexes A9 and A10 to the application raised by the intervener.
66      In the light of all of the foregoing, the action must be dismissed as manifestly lacking any foundation in law.
Costs
67      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.
68      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the latter.
69      By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as a hearing has not been organised, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1.      The action is dismissed.
2.      ECE Group GmbH & Co. KG shall bear its own costs and pay those incurred by ECE Logistics sp. z o.o.
3.      The European Union Intellectual Property Office (EUIPO) shall bear its own costs.
Luxembourg, 17 July 2025.
V. Di Bucci
P. Škvařilová-Pelzl
Registrar
President
*      Language of the case: English.