JUDGMENT OF THE GENERAL COURT (Second Chamber)
15 October 2020 (*)
(EU trade mark – Opposition proceedings – Application for the EU figurative mark SAKKATTACK – Earlier international word marks ATTACK and Body Attack and earlier international figurative mark Body Attack SPORTS NUTRITION – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑851/19,
Body Attack Sports Nutrition GmbH & Co. KG, established in Hamburg (Germany), represented by S. Labesius, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Crespo Carrillo 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
Maria Sakkari, residing in Nicosia (Cyprus), represented by M. Nikolaraki, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 14 October 2019 (Case R 2560/2018‑4), relating to opposition proceedings between Body Attack Sports Nutrition and Ms Sakkari,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović, President, P. Škvařilová-Pelzl (Rapporteur) and I. Nõmm, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 16 December 2019,
having regard to the response of EUIPO lodged at the Court Registry on 21 February 2020,
having regard to the response of the intervener lodged at the Court Registry on 3 March 2020,
having regard to the decision of 31 January 2020 rejecting the application to join Cases T‑788/19 and T‑851/19,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
I.      Background to the dispute
1        On 12 April 2017, the intervener, Ms M. Sakkari, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2        Registration as a mark was sought for the following figurative sign:
3        The goods and services in respect of which registration was sought are in Classes 9, 16, 24, 25, 28, 38 and 41 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, with regard to the goods in Classes 24, 25 and 28, to the following description:
–        Class 24: ‘Woven fabrics; textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths; knitted elastic fabrics for sportswear’;
–        Class 25: ‘Sweat bands for the wrist; hats; clothing; sportswear; shoes; tennis socks; tennis shorts; athletic shoes; tennis shoes; sports jerseys; moisture-wicking sports shirts; sweat-absorbent socks; sweatbands; tennis sweatbands’;
–        Class 28: ‘Rackets; tennis rackets; grip tape for racquets; protective covers for rackets; tennis racket covers; tennis bags shaped to contain a racket; shaped covers for tennis rackets; vibration dampeners for tennis rackets; grip bands for tennis rackets; sporting articles and equipment; arm guards for sports use; arm pads adapted for use in sporting activities’.
4        The trade mark application was published in European Union Trade Marks Bulletin
No 91/2017 of 17 May 2017.
5        On 16 August 2017, the applicant, Body Attack Sports Nutrition GmbH & Co. KG, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6        The opposition was based on the following earlier rights:
–        the international registration designating the European Union in respect of the word mark ATTACK, which was filed and registered under the number 1110977 on 31 October 2011 and covers goods and services in Classes 5, 25, 28 to 30, 32 and 41 corresponding, with regard to the goods in Classes 25 and 28, to the following description:
–        Class 25: ‘Clothing, footwear, headgear; all the aforementioned goods also for use in sports, in particular gloves for gymnastics’;
–        Class 28: ‘Articles for gymnastics and sports’;
–        the international registration designating the European Union in respect of the word mark Body Attack, which was filed and registered under the number 1059911 on 15 September 2010 and covers goods in Classes 5, 20, 24, 25, 28 to 30 and 32 corresponding, with regard to the goods in Classes 20, 24 and 25, to the following description:
–        Class 20: ‘Garment covers [storage]’;
–        Class 24: ‘Towels’;
–        Class 25: ‘T-shirts, caps, trousers, shoes, headgear, jackets, shirts, overalls, rain coats, scarfs, stockings and socks, gloves, sportswear of any kind, fitness wear, casual wear’;
–        the international registration designating the European Union in respect of the figurative mark Body Attack SPORTS NUTRITION, as reproduced below, which was filed and registered under the number 1217783 on 20 December 2013 and covers goods and services in Classes 3, 5, 7, 14, 18, 21, 24, 25, 28 to 30, 32, 35, 44 and 45:
7        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
8        On 30 October 2018, the Opposition Division partially upheld the opposition and rejected the EU trade mark application in respect of the goods in Classes 25 and 28. It rejected the opposition in respect of the goods in Class 24.
9        On 21 December 2018, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
10      By decision of 14 October 2019 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal. In essence, it found that, in so far as the application for registration at issue related to the goods in Class 24, there was no likelihood of confusion as regards the mark applied for and the three earlier marks.
11      In the first place, the Board of Appeal assessed whether there was a likelihood of confusion as regards the mark applied for and the earlier mark ATTACK. It found that the goods in Class 24 covered by the mark applied for were different from those in Class 25 covered by that earlier mark. Consequently, it rejected the opposition based on that earlier mark in so far as the application for registration in question related to the goods in Class 24.
12      In the second place, the Board of Appeal assessed whether there was a likelihood of confusion as regards the mark applied for and the earlier mark Body Attack. First, it found that the goods in Class 24 covered by the mark applied for and those covered by that earlier mark were in part identical and in part dissimilar. Secondly, it found that the signs at issue were visually and phonetically similar to a low degree. It took the view that, conceptually, those signs were similar at most to a low degree for English-speaking consumers and the part of the relevant public in the languages of which equivalents for the English word ‘attack’ existed, whereas, for the other consumers, that comparison remained neutral or the signs were dissimilar. Thirdly, while pointing out that that earlier mark had a normal degree of distinctiveness, it found that such a likelihood of confusion did not exist, even taking into account the identity of the goods at issue and the normal level of attention of that public.
13      In the third place, the Board of Appeal assessed whether there was a likelihood of confusion as regards the mark applied for and the earlier mark Body Attack SPORTS NUTRITION. It found that there was no likelihood of confusion and rejected the opposition based on that earlier mark.
14      In the fourth place, the Board of Appeal rejected the applicant’s argument that the earlier marks formed a family of marks on the ground that no proof of use of those marks had been submitted in the present case.
Forms of order sought
15      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
16      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
17      The intervener contends that the Court should:
–        dismiss the action in its entirety;
–        uphold the contested decision;
–        order the applicant to pay the costs.
Law
18      It must be stated at the outset that, by her first head of claim, the intervener contends that the action should be dismissed and, by her second head of claim, she requests that the Court uphold the contested decision. However, since ‘uphold the contested decision’ is tantamount to dismissing the action, the intervener’s first two heads of claim must be regarded as seeking solely the dismissal of the action (see, to that effect, judgment of 13 July 2018, Star Television Productions v EUIPO – Marc Dorcel (STAR), T‑797/17, not published, EU:T:2018:469, paragraph 75 and the case-law cited).
19      In support of the action, the applicant relies on four pleas in law, alleging: (i) infringement of Article 8(1)(b) of Regulation 2017/1001; (ii) infringement of Article 37(1) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1); (iii) infringement of the principles of equal treatment and of sound administration; and (iv) infringement of the obligation to state reasons set out in the first sentence of Article 94(1) of Regulation 2017/1001.
20      It must be stated that the complaints put forward in the context of the third plea are also put forward in the context of the first plea. In those circumstances, it is appropriate to deal with those pleas together.
The first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, and the third plea, alleging infringement of the principles of equal treatment and of sound administration
21      In the context of the first plea, the applicant submits that the Board of Appeal’s assessments relating to the comparison of the goods, the comparison of the signs and whether there was a likelihood of confusion are incorrect.
22      In particular, the applicant disputes, first, the comparison of the goods which the Board of Appeal carried out in the context of the examination of the likelihood of confusion as regards the mark applied for and the earlier mark ATTACK. Secondly, it disputes the comparison of the signs and the findings relating to the lack of a likelihood of confusion that that Board of Appeal made when assessing the likelihood of confusion as regards the mark applied for and the earlier mark Body Attack. It does not therefore call into question that Board of Appeal’s findings relating to the lack of a likelihood of confusion as regards the mark applied for and the earlier figurative mark Body Attack SPORTS NUTRITION.
23      In the context of the third plea, the applicant alleges that the Board of Appeal infringed the principles of equal treatment and of sound administration in that, in paragraphs 37 to 40 of the contested decision, it did not comply with the rules of global assessment of the likelihood of confusion set out in its own guidelines. It states that the EUIPO guidelines provide that, on the basis of an average degree of distinctiveness of the earlier mark and an average degree of attentiveness of the relevant public, the finding of a likelihood of confusion may be justified when the signs are identical or highly similar, despite a low degree of similarity between the goods.
24      EUIPO and the intervener dispute the applicant’s claims.
25      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, 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. Furthermore, under Article 8(2)(a)(iv) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered under international arrangements which have effect in the European Union with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
26      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
27      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
The relevant public
28      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods or services concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
29      As regards the relevant public, the Board of Appeal found, in essence and correctly, in paragraph 37 of the contested decision, that the goods in Class 24 covered by the mark applied for were aimed at the general public with an average level of attention. Since all of the earlier marks are international registrations designating the European Union, the relevant territory is that of the European Union, as is apparent from paragraph 9 of that decision.
30      In the present case, as has been stated in paragraph 22 above, the applicant disputes both the Board of Appeal’s assessments relating to the opposition based on the earlier mark ATTACK and those relating to the opposition based on the earlier mark Body Attack. They must therefore be examined in turn.
The merits of the Board of Appeal’s assessments relating to the opposition based on the earlier mark ATTACK
31      According to settled case-law, in assessing the similarity of the goods at issue, all the relevant factors relating to those goods should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
32      In that regard, the Board of Appeal found, in paragraph 12 of the contested decision, that the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for and the ‘clothing’ in Class 25 covered by the earlier mark ATTACK were dissimilar on account of their different natures, purposes and methods of use. It stated, inter alia, that, although a certain degree of complementarity, due to the fact that the fabrics might be used for the production of clothing or sportswear in particular, could not be excluded, that was not sufficient to render those goods similar.
33      As regards the ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ covered by the mark applied for, the Board of Appeal found, in paragraph 13 of the contested decision, that they had a different nature, purpose and method of use from those of the goods covered by the earlier mark ATTACK and in particular from those of ‘clothing’. It found, inter alia, that those goods covered by the mark applied for were textile goods for household purposes or interior decoration and that, on that ground, the producers of those goods were different and they were sold in different sales outlets and different sections of department stores.
34      Furthermore, the Board of Appeal observed that, although ‘bath robes’ were part of the alphabetical list of goods in Class 25, they were not synonymous with the ‘clothing’ covered by the earlier mark ATTACK. It added that ‘towels’ were used by consumers to dry their body or part of it before they put on their clothes, but that, except for a very short while and in a provisional manner, they did not use towels to cover their body. It stated that that latter function was, however, the main purpose of the goods in Class 25 covered by the earlier mark ATTACK.
35      The applicant submits that the goods covered by the earlier mark ATTACK and the goods in Class 24 covered by the mark applied for are similar. First, it submits that the Board of Appeal ignored the fact that the ‘towels of textile’ were covered by the broader term of ‘woven fabrics’ and that the ‘knitted elastic fabrics for sportswear’ covered by the mark applied for were explicitly intended to be used for sports clothing as complementary goods and should therefore have found that there was a certain similarity between those goods.
36      Secondly, the applicant argues that the ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ covered by the mark applied for are highly similar to the ‘clothing’ covered by the earlier mark, since the latter also encompasses ‘bath robes’ and similar goods. According to the applicant, ‘bath robes’ have a nature, purpose and method of use which are similar to those of ‘hand towels’, which are complementary. It adds that those goods can be sold in the same outlets or in the same or adjoining sections of department stores. It refers in particular to the judgment of 12 July 2019, Fashion Energy v EUIPO – Retail Royalty (1st AMERICAN) (T‑54/18, not published, EU:T:2019:518, paragraph 72), in which, in its submission, the Court confirmed that there was a certain degree of similarity between ‘robes’ and ‘household textiles and linen’, which also cover ‘towels of textile’.
37      First of all, it is necessary to examine the applicant’s arguments relating to the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for.
38      As regards the applicant’s claim that the Board of Appeal ignored the fact that ‘woven fabrics’ included ‘towels of textile’, it must be stated that both ‘woven fabrics’ and ‘towels of textile’ are covered by the mark applied for and that neither of those goods is covered by the earlier mark ATTACK. Consequently, even if ‘towels of textile’ were included in the broader category of ‘woven fabrics’, such a finding would have no bearing on the Board of Appeal’s conclusion that the ‘woven fabrics’ covered by the mark applied for were dissimilar to the goods covered by that earlier mark, in particular the ‘clothing’ in Class 25. Moreover, it must be added that the Board of Appeal found that the ‘towels of textile’ and the other goods covered by that earlier mark were also dissimilar.
39      As regards the applicant’s claim that the ‘knitted elastic fabrics for sportswear’ covered by the mark applied for are explicitly intended to be used for sports clothing as complementary goods, it must be pointed out that textiles and textile goods in Class 24 and clothing in Class 25 differ in many respects, such as their nature, intended purpose, origin and distribution channels (judgment of 13 December 2004, El Corte Inglés v OHIM – Pucci (EMILIO PUCCI), T‑8/03, EU:T:2004:358, paragraph 44).
40      Consequently, the Board of Appeal did not err in finding that the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for, on the one hand, and the goods covered by the earlier mark ATTACK, on the other hand, were dissimilar.
41      Secondly, it is necessary to examine the applicant’s arguments relating to the similarity between the ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ covered by the mark applied for and the ‘bath robes’ and ‘robes’ which are, in its submission, included in the ‘clothing’ covered by the earlier mark ATTACK.
42      In that regard, it is sufficient to point out, in line with what the Board of Appeal stated, that the earlier mark ATTACK covers ‘clothing’ in Class 25 and not ‘bath robes’ or ‘robes’. Consequently, the applicant’s argument that the Court did not hold that a Board of Appeal had erred in finding ‘robes’ and ‘towels’ to be similar is ineffective.
43      As regards the applicant’s argument that ‘bath robes’ or ‘robes’ are included in the alphabetical list of goods in Class 25, that argument is ineffective for the purposes of assessing whether the goods at issue are similar. As is clear from Article 33(7) of Regulation 2017/1001, goods and services are not to be regarded as being similar to each other on the ground that they appear in the same class under the Nice Classification, just as they are not to be regarded as being dissimilar from each other on the ground that they appear in different classes under that classification.
44      It follows that the Board of Appeal did not err in finding that the goods covered by the mark applied for that have been referred to in paragraph 41 above and the goods covered by the earlier mark ATTACK were dissimilar.
45      Since the Board of Appeal’s findings relating to the comparison of the goods in Class 24 covered by the mark applied for and those covered by the earlier mark ATTACK are correct, the Board of Appeal was right in finding that there was no likelihood of confusion as regards those marks in so far as the application for registration at issue related to the goods in that class.
The merits of the Board of Appeal’s assessments relating to the opposition based on the earlier mark Body Attack
–       The comparison of the goods
46      As regards the comparison of the goods at issue, the Board of Appeal found, in paragraph 16 of the contested decision, that the ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ covered by the mark applied for and the ‘towels’ covered by the earlier mark Body Attack were identical.
47      By contrast, the Board of Appeal found, in paragraph 17 of the contested decision, that the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for were dissimilar to the goods covered by the earlier mark Body Attack.
48      The applicant does not dispute the findings of the Board of Appeal that are referred to in paragraph 46 above, which are correct. It criticises only that Board of Appeal’s findings relating to the goods referred to in paragraph 47 above.
49      As regards the goods which the Board of Appeal found to be dissimilar, it must be pointed out that that Board of Appeal did not err with regard to those goods. As is clear from paragraphs 38 to 40 above, the ‘clothing’ covered by the earlier mark ATTACK and the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for are dissimilar. Those findings also apply as regards the earlier mark Body Attack since that mark covers various items of clothing in Class 25. Furthermore, as the Board of Appeal found in paragraph 17 of the contested decision, the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for are raw materials or semi-finished products meant for the manufacture of clothes or additional tailoring. Their nature, purpose and method of use are therefore different from those of the goods in Classes 5, 20, 24, 25, 28 to 30 and 32 covered by that earlier mark, including the ‘towels’ in Class 24.
50      Since the ‘woven fabrics’ and ‘knitted elastic fabrics for sportswear’ covered by the mark applied for were correctly found by the Board of Appeal to be dissimilar to the goods covered by the earlier mark Body Attack, it must be held that the Board of Appeal was right in ruling out, in paragraph 40 of the contested decision, the existence of a likelihood of confusion with regard to those goods.
51      Consequently, the examination as to whether there is a likelihood of confusion must be continued solely with regard to the goods that are identical, which have been identified in paragraph 46 above.
–       The comparison of the signs
52      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
53      In the present case, it is necessary to compare the earlier mark Body Attack and the mark applied for. That latter mark, as the Board of Appeal correctly pointed out in paragraph 24 of the contested decision, consists of the word element ‘sakkattack’, written in upper-case letters, in which the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ is written in red, whereas the term ‘attack’, which is placed somewhat lower, is written in larger black upper-case letters. Furthermore, there is a small figurative element representing a yellow tennis ball in motion and two fine grey lines placed above that term, a figurative element which is attached to the second letter ‘k’ of that sequence of letters. What is more, that word element is underlined by a thick line which gradually changes from grey to black.
54      As regards, in the first place, the distinctive elements of each of the signs at issue, it must be pointed out, first of all, that the Board of Appeal found, first, that the earlier mark Body Attack would be perceived by English-speaking consumers as a combination of the English terms ‘body’ and ‘attack’, meaning ‘to attack the body’, which had no descriptive connotation in relation to the ‘towels’ covered by that earlier mark. Secondly, it took the view that the non-English-speaking part of the relevant public might identify either one of those terms due to similar language equivalents or see them as fanciful words. It found that, both for the English-speaking part and the non-English-speaking part of that public, those terms were equally distinctive.
55      In that regard, the applicant submits that the Board of Appeal ignored the fact that, for the English-speaking part of the relevant public, the element ‘body’ in the earlier mark Body Attack is purely descriptive or at least weakly distinctive with regard to the goods at issue since clothing is worn on the human body and towels are used to dry skin as part of the human body. The applicant argues that English-speaking consumers will therefore focus on the element ‘attack’ in that earlier mark, which is longer than the element ‘body’ and dominates that mark, a point which, it submits, the Board of Appeal did not take into account in the visual and phonetic comparison of the signs.
56      As regards the applicant’s argument that the element ‘body’ in the earlier mark Body Attack is descriptive with regard to the goods at issue, it must, first of all, be pointed out that the only goods to be taken into account when making that assessment are the ‘towels’ covered by that earlier mark. However, as the Board of Appeal found, that element has no descriptive connotation in relation to those goods. By contrast, any descriptiveness which that element might have with regard to ‘clothing’ is irrelevant since that Board of Appeal’s finding was not based on those goods.
57      Next, it must be pointed out, as stated by the Board of Appeal, that the earlier mark Body Attack refers to the expression ‘to attack the body’ which will be understood by the English-speaking part of the relevant public and cannot be descriptive with regard to the goods covered by that earlier mark.
58      Lastly, the applicant’s argument that the element ‘attack’ in the earlier mark Body Attack must be held to be dominant in that earlier mark can also not succeed. Even though that element contains two letters more than the element ‘body’ in that earlier mark, it cannot automatically be held to be dominant, in particular taking into account the fact that the first element, which is as distinctive with regard to the goods at issue as the second element, is placed at the beginning of the earlier mark.
59      Consequently, the applicant errs in taking the view that the element ‘attack’ is dominant in the earlier mark Body Attack and the Board of Appeal’s findings relating to the components of that earlier mark are correct.
60      Secondly, as regards the components of the mark applied for, the Board of Appeal found, in essence, that the word element in the mark applied for, on account of its being visually separated, which was accentuated by the use of different colours and of two slightly different fonts, would be broken down into the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ and the term ‘attack’. It took the view that, since the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ and the term ‘attack’ were not descriptive with regard to the goods in Class 24 covered by that mark, they were equally distinctive for the whole of the relevant public, irrespective of whether it understood that sequence of letters and that term. By contrast, as regards the figurative element representing a tennis ball which is contained in that mark, it found that it was weak for the whole of that public as it indicated the purpose of those goods, namely to be used in tennis or sports in general. It found that the line underlining the aforementioned word element would focus that public’s attention on that word element.
61      In that regard, the applicant, referring to the order of 28 June 2012, TofuTown.com v Meica and OHIM (C‑599/11 P, not published, EU:C:2012:403, paragraph 31), submits that the Board of Appeal did not assess the relevance of the rule that the relevant public pays more attention to the beginning or the end of a sign. It thus argues, in essence, that, if the end of the sign is highlighted because it is separate from the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ and is written in a larger font size than that sequence of letters, it is to the end of the sign that that public will pay more attention.
62      It must, however, be pointed out that, in the order of 28 June 2012, TofuTown.com v Meica and OHIM (C‑599/11 P, not published, EU:C:2012:403), the Court of Justice found that the General Court did not, in assessing the dominant and distinctive elements of the signs at issue, have to take as its starting point the premiss that the consumer paid greater attention to the beginning of a compound word sign than to its end. It may, without derogating from any ‘principle’ or ‘criterion’, hold that the end of signs which are the subject of opposition proceedings is more distinctive or dominant than the beginning of those signs or even that one of the elements in those signs is not more distinctive or dominant than the other (order of 28 June 2012, TofuTown.com v Meica and OHIM, C‑599/11 P, not published, EU:C:2012:403, paragraphs 30 and 31).
63      It must therefore be held that, in the order of 28 June 2012, TofuTown.com v Meica and OHIM (C‑599/11 P, not published, EU:C:2012:403), the Court of Justice confined itself to stating that it was possible for the last part of a word sign to be more distinctive or dominant or for none of the elements of which the word signs consisted to be more distinctive or dominant than the other. However, as is clear from paragraph 60 above, in the present case the Board of Appeal found that, in the mark applied for, neither of the two parts of the word element ‘sakkattack’ was more distinctive than the other. In so doing, that Board of Appeal did not act in a manner contrary to the case-law cited in paragraph 62 above.
64      Likewise, the applicant cannot reasonably claim that the relevant public will pay greater attention to the term ‘attack’ in the mark applied for because of the size of that term. Even though that the slightly larger size of that term will be noticed by that public, as the Board of Appeal pointed out in paragraph 26 of the contested decision, that fact cannot make that term dominant in that mark.
65      On the contrary, it must be held that, at least for the part of the relevant public that understands the English term ‘attack’, namely English-, French- and Spanish-speaking consumers (see paragraphs 26, 27 and 31 of the contested decision), it is the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ which must be considered to be dominant in the mark applied for. That sequence of letters will attract the relevant public’s attention on account of its fanciful and eye-catching nature and the fact that the letter ‘k’ appears twice in that sequence. By contrast, the English term ‘attack’ or its equivalent in French and Spanish is a common term to which that public will consequently pay less attention.
66      Furthermore, the Board of Appeal erred in finding, in paragraph 25 of the contested decision, that the figurative element representing a tennis ball in motion that is contained in the mark applied for was somehow weakly distinctive as it indicated the purpose of the goods at issue, namely to be used in tennis or sports in general. In that regard, that Board of Appeal highlighted the point that that mark related to sportswear and sports articles.
67      However, it must be borne in mind that the only goods covered by the mark applied for with regard to which it still has to be assessed whether there is a likelihood of confusion within the context of the examination of the present plea are the ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ in Class 24 (see paragraphs 46 and 51 above), the primary intended purpose of which is not that of being used in tennis or sports in general. Consequently, it must be held that the distinctive character of the figurative element representing a tennis ball in motion in that mark is average.
68      Admittedly, it must be borne in mind, as the Board of Appeal, in essence and correctly, observed in paragraph 25 of the contested decision, that where a trade mark consists of a word element and of figurative elements, the former is, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods or services in question by quoting their name than by describing the figurative elements of the mark. The fact remains, however, that the figurative elements must also be taken into account in the comparison of the signs, in particular where those figurative elements are not weakly distinctive with regard to the goods at issue.
69      In view of the considerations contained in paragraphs 60 to 68 above, both parts of the word element in the mark applied for are equally distinctive. However, at least for the part of the relevant public that understands the term ‘attack’, it is the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ which will be dominant. Furthermore, the distinctive character of the figurative element of that mark, representing a tennis ball in motion, is average with regard to the goods at issue.
70      As regards, in the second place, the visual comparison of the signs, the Board of Appeal observed, in paragraph 29 of the contested decision, that the signs at issue had the term ‘attack’ in common, but that they differed in the presence of the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ and the weakly distinctive figurative element, the colours and the underlining in the mark applied for and the element ‘body’ in the earlier mark Body Attack. In view of those factors, it found that there was a low degree of visual similarity.
71      The applicant disputes the Board of Appeal’s findings relating to the degree of visual similarity between the signs at issue and submits that that degree of similarity is higher than ‘low’. First of all, it submits that the first parts of those signs, namely the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ and the element ‘body’, begin with the letters ‘s’ and ‘b’ which are similar in appearance, as are the next letters, namely ‘a’ and ‘o’. Next, it submits that those signs comprise the same number of letters. Lastly, it argues that the fact that the relevant public will pay more attention to the term ‘attack’ in the mark applied for, on account of its size, is liable to make the degree of visual similarity higher than low.
72      In that regard, it must be pointed out that, since the signs at issue have the term ‘attack’ in common, but differ in the presence of the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ and of figurative elements in the mark applied for and in the presence of the element ‘body’ in the earlier mark Body Attack, the degree of similarity between them must be held to be low, as the Board of Appeal correctly found. The applicant’s claims cannot make them more similar.
73      The identical number of letters cannot make the signs at issue more similar, since some of those letters, namely ‘s’, ‘a’, ‘k’ and ‘k’ in the mark applied for and ‘b’, ‘o’, ‘d’ and ‘y’ in the earlier mark Body Attack, are different.
74      Similarly, the applicant’s claim relating to the visual similarity, first, of the letters ‘s’ and ‘b’ and, secondly, of the letters ‘a’ and ‘o’ can also not succeed. That claim is in no way substantiated. Furthermore, it must be held that those letters are not especially similar, as EUIPO points out.
75      As regards the argument that the size of the term ‘attack’, which is slightly larger than that of the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’, will attract the relevant public’s attention to a greater extent and will therefore make the degree of similarity between the signs at issue higher, it must be borne in mind, as is clear from paragraph 64 above, that that public will not pay more attention to that term. Since that term cannot be considered to be dominant in the mark applied for, it cannot make the signs at issue more similar.
76      Consequently, the Board of Appeal did not err in finding that the signs at issue were visually similar to a low degree.
77      As regards, in the third place, the phonetic comparison of the signs, the Board of Appeal found, in paragraph 30 of the contested decision, that the signs at issue were similar to a low degree.
78      The applicant submits that the Opposition Division was right in finding that the signs were phonetically similar to an average degree in the present case. It adds that average consumers will pronounce the signs at issue as two separate words, which will make it possible to recognise the element which they have in common.
79      Contrary to what the applicant submits, the Board of Appeal’s findings relating to the low degree of phonetic similarity between the signs at issue are correct. As that Board of Appeal pointed out, the pronunciation of those signs coincides on account of the presence of the term ‘attack’, but differs on account of the presence of the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ in the mark applied for and the presence of the element ‘body’ in the earlier mark Body Attack. Furthermore, the Board of Appeal specifically acknowledged that, on account of its stylisation, the mark applied for would be pronounced as two words. However, that cannot eliminate the differences resulting from the presence of that sequence of letters and that element in those signs.
80      It must be added that both parts of the word element in the mark applied for are equally distinctive and that the terms of which the earlier mark Body Attack consists are equally distinctive, as is clear from paragraphs 54, 59, 60 and 69 above. Furthermore, as is apparent from paragraph 65 above, the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ will be dominant in the mark applied for for part of the relevant public. What is more, those different elements are placed at the beginning of the signs at issue. The relevant public will tend, in view of the fact that it reads from left to right, to focus on the first element in the signs at issue when it is faced with them (see judgment of 5 March 2020, Exploitatiemaatschappij De Berghaaf v EUIPO – Brigade Electronics Group (CORNEREYE), T‑688/18, not published, EU:T:2020:80, paragraph 67 and the case-law cited).
81      As regards, in the fourth place, the conceptual comparison of the signs, the Board of Appeal carried out, in paragraphs 31 and 32 of the contested decision, the comparison of the signs at issue in four stages by dividing the relevant public into four groups, namely the English-speaking public, the public in the languages of which equivalents for the English term ‘attack’ exist, the public for which none of the word elements has any meaning and the rest of the relevant public which ‘identifies some of the signs’ components as meaningful elements’. As regards the figurative element of the mark applied for, representing a tennis ball in motion, that Board of Appeal found that the weak concept conveyed by that element had a limited impact.
82      First, the Board of Appeal found that the signs at issue were conceptually similar at most to a low degree for the English-speaking part of the relevant public, for which the mark applied for would refer to an undefined attack, whereas the earlier mark Body Attack would refer to the act of attacking a body. Secondly, it arrived at, in essence, the same conclusion as regards the part of that public in the mother tongues of which equivalents for the English term ‘attack’ existed, mentioning French and Spanish. According to the Board of Appeal, for that part of that public, those signs also had that ‘weak’ concept in common.
83      As regards, thirdly, the part of the relevant public for which none of the word elements in the signs at issue had any meaning, the Board of Appeal found that the conceptual comparison of those signs remained neutral.
84      As regards, fourthly, the rest of the relevant public, which would identify some of the components in the signs at issue as meaningful elements, like the Hungarian public, which would perceive the sequence of letters ‘s’, ‘a’, ‘k’ and ‘k’ as a reference to chess, the Board of Appeal found that the conceptual comparison was not possible or that those signs were dissimilar.
85      The applicant criticises the Board of Appeal for finding that the term ‘attack’ conveyed a weak concept, although it did not find that that term had a specific connection with the goods at issue, which, in the applicant’s view, contradicts the finding, in paragraph 27 of the contested decision, that both parts of the word element in the mark applied for were equally distinctive. It submits that, consequently, the degree of conceptual similarity between the signs at issue must be considered to be average.
86      As regards the applicant’s claim that the Board of Appeal erred in categorising the concept conveyed by the term ‘attack’ as weak, it must be pointed out, first of all, that the findings in which that Board of Appeal used that categorisation concern only the second section of the relevant public, namely the part of that public in the languages of which equivalents for that term exist. It follows that that finding, even if incorrect, has no bearing on that Board of Appeal’s assessments relating to the other sections of the relevant public.
87      Next, it must be stated, as observed by EUIPO, that the Board of Appeal’s categorisation of the concept conveyed by the term ‘attack’ as weak did not have any impact on its reasoning since it did not draw any consequences from it. Indeed, the Board of Appeal found that that term was distinctive as regards the goods at issue (see paragraphs 22, 26 and 27 of the contested decision). Likewise, it found that the degree of distinctiveness of the earlier mark Body Attack was normal (see paragraph 34 of that decision).
88      Lastly, it must be held that, in categorising the concept conveyed by the term ‘attack’ as weak, the Board of Appeal, in actual fact, regarded that term as conveying a vague concept, that of an undefined attack, as opposed to that conveyed to the English-speaking part of the relevant public by the earlier mark Body Attack, which is a well-defined concept.
89      Moreover, it must be held that the Board of Appeal’s findings relating to the conceptual comparison of the signs are correct, in particular as regards the part of the relevant public for which there will be a conceptual similarity between the signs at issue. However, that similarity cannot be categorised as being higher than ‘low’ in degree, both as regards the English-speaking part of that public and the part of that public in the mother tongues of which there are equivalents for the English term ‘attack’.
90      Although the part of the relevant public in the mother tongues of which there are equivalents for the English term ‘attack’, like French and Spanish, could identify the meaning of that term in the signs at issue, the fact remains that the other components of those signs will not be understood by that part of that public.
91      As regards the English-speaking part of the relevant public, the message conveyed by the signs at issue is slightly different since the earlier mark Body Attack will be understood as meaning ‘to attack the body’, whereas, in the mark applied for, only the term ‘attack’ will be understood.
92      What is more, the degree of conceptual similarity between the signs at issue will be lessened by the presence in the mark applied for of the figurative element representing a tennis ball in motion, which, as is clear from paragraph 67 above, has an average degree of distinctive character and remains clearly identifiable for the whole of the relevant public.
93      As is apparent from the foregoing considerations, the highest degree of conceptual similarity between the signs at issue for any of the four sections of the relevant public that were identified by the Board of Appeal (see paragraph 81 above) cannot be higher than low. Consequently, the applicant errs in claiming that those signs are conceptually similar to an average degree.
–       The question as to whether there is a likelihood of confusion
94      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
95      In the present case, the Board of Appeal found, in essence, in paragraph 38 of the contested decision, that the presence of the term ‘attack’ in each of the signs at issue was insufficient to result in a likelihood of confusion between the mark applied for and the earlier mark Body Attack, even though the goods were identical.
96      The applicant submits that the Board of Appeal’s finding is based on an incorrect global assessment of all the factors contributing to the likelihood of confusion. It argues that that assessment is contrary to settled case-law according to which, in the light of the interdependence of the various factors, a likelihood of confusion will be acknowledged if there is a normal degree of similarity between the goods or services, an average degree of similarity between the signs, the earlier mark has an average degree of distinctiveness and the relevant public has an average level of attention. It also argues that that assessment is contrary to EUIPO’s guidelines in which the same principles are acknowledged. The applicant relies in this regard on the order of 29 November 2012, Hrbek v OHIM (C‑42/12 P, not published, EU:C:2012:765, paragraph 60 and the case-law cited). Moreover, the applicant submits that the Board of Appeal did not state any reasons for deviating from the principles defined by settled case-law and by those guidelines.
97      In addition, the applicant argues that, on account of its different colour and its position, the term ‘attack’ retains an independent distinctive role in the mark applied for and that the relevant public may perceive that term as a sub-brand in that mark.
98      In the present case, the Board of Appeal was right in finding that the ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ covered by the mark applied for and the ‘towels’ covered by the earlier mark Body Attack were identical (see paragraphs 46 and 48 above). Similarly, it did not err in finding that the signs at issue were visually and phonetically similar to a low degree and conceptually similar at most to a low degree (see paragraphs 75, 79 and 89 of the present judgment). In view of those findings and taking into account the average degree of distinctiveness of the earlier mark Body Attack, which was duly pointed out by that Board of Appeal in paragraph 34 of the contested decision, and the average level of attention of the relevant public (see paragraph 29 above), any likelihood of confusion in the present case with regard to those goods must be ruled out.
99      That finding is not called into question by the applicant’s arguments.
100    As regards the applicant’s claim that the contested decision is contrary to settled case-law according to which, in the light of the interdependence of the various factors, a likelihood of confusion must be acknowledged if there is a normal degree of similarity between the goods or services, an average degree of similarity between the signs, the earlier mark has an average degree of distinctiveness and the relevant public has an average level of attention, it must be borne in mind, as is clear from the case-law cited in paragraph 26 above, that the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question, taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, GIORGIO BEVERLY HILLS, T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
101    As regards the case-law on which the applicant relies, namely the order of 29 November 2012, Hrbek v OHIM (C‑42/12 P, not published, EU:C:2012:765, paragraph 60 and the case-law cited), it is sufficient to point out that that case-law confines itself to stating that there may be a likelihood of confusion, notwithstanding a low degree of similarity between the trade marks, where the goods or services covered by them are very similar and the earlier mark is highly distinctive. However, that case-law cannot be relevant, in particular in the light of the inherent distinctiveness of the earlier mark Body Attack which, as is clear from paragraph 98 above, was correctly found to be average.
102    Likewise, it must be borne in mind that EUIPO’s guidelines are not binding legal acts for the purpose of interpreting provisions of European Union law (judgment of 19 December 2012, Leno Merken, C‑149/11, EU:C:2012:816, paragraph 48). Moreover, since the decisions which the Boards of Appeal of EUIPO take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union (judgment of 19 January 2012, OHIM v Nike International, C‑53/11 P, EU:C:2012:27, paragraph 57).
103    In so far as the alleged rule relied on by the applicant concerns EUIPO’s previous practice, it must be added that, although EUIPO must take into account decisions already taken and consider with especial care whether it should decide in the same way or not, respect for the principle of legality requires that the examination of any trade mark application be stringent and full and be undertaken in each individual case, since the registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of each particular case (judgments of 10 March 2011, Agencja Wydawnicza Technopol v OHIM, C‑51/10 P, EU:C:2011:139, paragraphs 73 to 77, and of 16 January 2019, Poland v Stock Polska sp. z o.o and EUIPO, C‑162/17 P, not published, EU:C:2019:27, paragraph 60).
104    Consequently, the applicant cannot usefully plead, in the present case, that the Board of Appeal infringed EUIPO’s guidelines.
105    In any event, it must be held that the Board of Appeal’s findings are not at variance with the principles set out in the guidelines of EUIPO to which the applicant refers.
106    As is apparent from the passage in EUIPO’s guidelines which the applicant cites in paragraph 38 of the application, on the basis of an average degree of distinctiveness of the earlier mark and an average degree of attentiveness of the relevant public, the finding of a likelihood of confusion may be justified when the signs are identical or highly similar, despite a low degree of similarity between the goods. Apart from the fact that the factual situation described above differs from that in the present case, the use of the verb ‘may’ means that it is possible to find that there is a likelihood of confusion where the aforementioned criteria are satisfied. However, those guidelines do not recommend that a likelihood of confusion ought to be found to exist where specific criteria have been satisfied.
107    As regards the applicant’s claim that the term ‘attack’ retains an independent distinctive role in the mark applied for, it must be pointed out that the application of the notion of independent distinctive role deriving from the judgment of 6 October 2005, Medion (C‑120/04, EU:C:2005:594, paragraph 37), presupposes that the earlier mark is contained in the mark applied for (see judgment of 28 September 2016, Kozmetika Afrodita v EUIPO – Núñez Martín and Machado Montesinos (KOZMeTIKA AFRODITA), T‑574/15, not published, EU:T:2016:574, paragraph 45 and the case-law cited).
108    However, that is not the case here. The mark applied for does not contain the earlier mark Body Attack in its entirety, but only one of the elements in that earlier mark, namely the term ‘attack’. Consequently, the applicant is not justified in complaining that the Board of Appeal did not, in the present case, find that the term ‘attack’ retains an independent distinctive role in the mark applied for. Since that earlier mark does not consist solely of that term, it can also not validly claim that the relevant public is liable to perceive it as a sub-brand in the mark applied for.
109    Moreover, it must be borne in mind that the Board of Appeal rejected, in paragraphs 47 and 48 of the contested decision, the applicant’s claim that the earlier marks formed a family of marks on the ground that no proof of use of the earlier marks had been submitted in the present case.
110    In view of all of the foregoing, it must be held that the Board of Appeal was right in finding that there was no likelihood of confusion as regards the mark applied for and the earlier marks ATTACK and Body Attack in so far as the application for registration relates to the goods in Class 24. The first and third pleas must therefore be rejected.
The second plea, alleging infringement of Article 37(1) of Delegated Regulation 2018/625
111    The applicant claims, in essence, that the Board of Appeal infringed Article 37(1) of Delegated Regulation 2018/625 in so far as it did not refer the present case to the Grand Board, even though its decision was going to diverge from other decisions of the Boards of Appeal. It refers to the Board of Appeal’s findings, in paragraph 13 of the contested decision, that ‘textile goods, and substitutes for textile goods; towels of textile; face towels; bath towels; hand towels; wash cloths’ are dissimilar to ‘clothing’. The applicant argues that that Board of Appeal made that assessment, even though it had referred, in its statement of grounds for the appeal, to various decisions of the other Boards of Appeal acknowledging a similarity between, on the one hand, ‘clothing’ and in particular ‘robes’ and, on the other hand, ‘hand towels’ or ‘household textiles and linen’. It submits that, consequently, the Board of Appeal did not comply with its obligation to refer the case to the Grand Board in order to avoid adopting a decision which diverged from the other decisions of the Boards of Appeal.
112    EUIPO and the intervener dispute the applicant’s claims.
113    Article 37(1) of Delegated Regulation 2018/625 provides that without prejudice to the faculty to refer a case to the Grand Board under Article 165(3) of Regulation 2017/1001, a Board of Appeal is to refer a case allocated to it to the Grand Board if it considers that it must deviate from an interpretation of the relevant legislation given in an earlier decision of the Grand Board, or if it observes that the Boards of Appeal have issued diverging decisions on a point of law which is liable to affect the outcome of the case.
114    It follows that a referral to the Grand Board, under Article 37(1) of Delegated Regulation 2018/625, is provided for in two cases, namely either if a Board of Appeal considers that it must deviate from an interpretation of the relevant legislation given in an earlier decision of the Grand Board, or if it observes that the Boards of Appeal have issued diverging decisions on a point of law which is liable to affect the outcome of the case.
115    In the present case, it is sufficient to point out that the applicant does invoke the existence of a decision of the Grand Board of Appeal, and still less that of an interpretation of the legislation given in such a decision, from which the Board of Appeal supposedly deviated in the present case.
116    On the contrary, the applicant submits, in essence, that the Board of Appeal, in adopting the contested decision, deviated from previous decisions of other Boards of Appeal.
117    However, it must be stated that Article 37(1) of Delegated Regulation 2018/625, which is the only one referred to by the applicant, does not apply to a situation such as that described in paragraph 116 above. As is clear from that provision, in order to be required to refer the present case to the Grand Board of Appeal, the Board of Appeal would have had to be faced with previous diverging decisions on a point of law which was liable to affect the outcome of the case.
118    That is not, however, the case here. First, as EUIPO submits, the divergence alleged by the applicant, namely that relating to the similarity of the goods, does not relate to a question of law, but to a question of fact. Secondly, the applicant argues, in the present case, that the contested decision deviated from previous practice, but not that there were divergences in the previous practice of the Boards of Appeal of EUIPO.
119    Since the conditions laid down in Article 37(1) of Delegated Regulation 2018/625 are not satisfied, the applicant cannot validly claim that that provision has been infringed in the present case. The second plea must therefore be rejected.
The fourth plea, alleging infringement of the obligation to state reasons set out in the first sentence of Article 94(1) of Regulation 2017/1001
120    The applicant submits that the reasoning for the contested decision is insufficient as regards three aspects. First, it claims that that decision contains an obvious contradiction in that, in paragraph 31 of that decision, the Board of Appeal stated that the term attack conveyed a weak concept, whereas, in paragraph 27 of that decision, it found that the elements ‘sakk’ and ‘attack’ were equally distinctive.
121    Secondly, the applicant claims that the Board of Appeal did not provide any arguments, in paragraph 30 of the contested decision, explaining why it had not followed the Opposition Division’s reasoning that there was an average degree of phonetic similarity between the mark applied for and the earlier mark Body Attack.
122    Thirdly, the applicant claims that the Board of Appeal did not provide any reasons for its decision to deviate from the global assessment of the likelihood of confusion as predefined by settled case-law and EUIPO’s guidelines.
123    EUIPO and the intervener dispute the applicant’s claims.
124    The first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. According to the case-law, that obligation has the same scope as that laid down in Article 296 TFEU and its purpose is, first, to allow those concerned to know the reasons for the measure adopted so as to enable them to defend their rights and, secondly, to enable the Courts of the European Union to exercise their power to review the legality of the decision (judgments of 6 September 2012, Storck v OHIM, C‑96/11 P, not published, EU:C:2012:537, paragraph 86, and of 15 July 2014, Łaszkiewicz v OHIM – Capital Safety Group EMEA (PROTEKT), T‑576/12, not published, EU:T:2014:667, paragraph 76).
125    As regards, first of all, the applicant’s claim relating to a contradiction in the reasoning regarding the distinctiveness of the term ‘attack’, it must be borne in mind that, admittedly, the Board of Appeal did not explain the reasons which led it to use the qualifying adjective ‘weak’ in paragraph 31 of the contested decision as regards that term. The fact remains, however, that that finding did not have any impact on that Board of Appeal’s reasoning, as is clear from paragraph 87 above. Consequently, any infringement of the obligation to state reasons in that regard could not, in any event, lead to the annulment of that decision. That claim must therefore be rejected as ineffective.
126    As regards, next, the applicant’s claim relating to insufficient reasoning in paragraph 30 of the contested decision, it is sufficient to point out that, as is apparent in essence from paragraph 79 above, the Board of Appeal gave sufficient reasons for its view that there was a low degree of phonetic similarity between the signs at issue in the present case.
127    As regards, lastly, the applicant’s claim that the Board of Appeal did not provide any reasons for its decision to deviate from the global assessment of the likelihood of confusion as referred to in settled case-law and EUIPO’s guidelines, it must be stated, as is apparent from the considerations in paragraphs 100 to 106 above, that the applicant has not established that that Board of Appeal deviated from the case-law or from its previous practice. As for those guidelines, it must be borne in mind that they are not binding, as has been pointed out in paragraph 102 of the present judgment.
128    It follows from the foregoing considerations that the fourth plea must be rejected.
129    Since none of the pleas in law relied upon by the applicant is well founded, the action must be dismissed in its entirety.
Costs
130    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
131    Since the applicant has been unsuccessful in the present case, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Body Attack Sports Nutrition GmbH & Co. KG to pay the costs.
Tomljenović
Škvařilová-Pelzl
Nõmm
Delivered in open court in Luxembourg on 15 October 2020.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.