JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 December 2017 (*)
(EU trade mark — Opposition proceedings — Application for EU figurative mark SLIMDYNAMICS — Earlier national word mark DYNAMIN — Relative ground for refusal — Likelihood of confusion — Similarity of the goods — Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
In Case T‑700/16,
Laboratorios Ern, SA, established in Barcelona (Spain), represented by S. Correa Rodríguez, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Crespo Carrillo, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Ascendo Medienagentur AG, established in Gamprin-Bendern (Liechtenstein),
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 22 July 2016 (Joined Cases R 1814/2015-4 and R 1780/2015-4) relating to opposition proceedings between Laboratorios Ern and Ascendo Medienagentur,
THE GENERAL COURT (Sixth Chamber),
composed of G. Berardis, President, D. Spielmann (Rapporteur) and Z. Csehi, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 30 September 2016,
having regard to the response lodged at the Court Registry on 13 December 2016,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 16 May 2014 Ascendo Medienagentur AG 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) (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 in respect of which registration of the trade mark was sought are in inter alia Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Dietary supplements and dietetic preparations; Hygienic preparations and articles; Medical and veterinary preparations and articles’.
4        The application was published in Community Trade Marks Bulletin No 101/2014 of 3 June 2014.
5        On 5 August 2014 the intervener, Laboratorios Ern, SA, filed a notice of opposition under Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) against registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
6        The opposition, in so far as it concerned the goods covered by the mark applied for included in Class 5, was based on the earlier Spanish word mark DYNAMIN, covering goods in Class 5 corresponding to the following description: ‘Dietetic foods adapted for medical use in any shape or form’.
7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
8        On 13 July 2015 the Opposition Division partially upheld the opposition, taking the view that there was a likelihood of confusion as regards dietary supplements and dietetic preparations, as well as in relation to the medical and veterinary preparations and articles included in Class 5.
9        On 4 September 2015 the applicant filed an appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Opposition Division (Case R 1780/2015-4). In parallel, on 10 September 2015 Ascendo Medienagentur filed an appeal with EUIPO, pursuant to the abovementioned provisions, against that same decision (Case R 1814/2015-4).
10      By decision of 22 July 2016 (‘the contested decision’), the Fourth Board of Appeal of EUIPO ruled jointly on those two actions and annulled the Opposition Division’s decision in so far as it had concluded that there was a likelihood of confusion for dietary supplements and for medical and veterinary preparations and articles. It first of all noted that those goods are intended both for professionals and for the public at large, whose level of attention will be high where medical use is claimed and average where that is not the case. Next, as regards the comparison of the goods, the Board of Appeal endorsed the findings of the Opposition Division, according to which the goods covered by the earlier mark included in Class 5, namely dietetic foods adapted for medical use, were similar to medical and veterinary preparations and articles and to the dietary supplements covered by the mark applied for, that they were identical to the dietetic preparations and that they were different from the hygienic preparations and articles covered by the mark applied for. So far as concerns the comparison of the signs, it considered that the marks at issue had a low degree of visual similarity, an average degree of phonetic similarity and were not conceptually similar. It then noted the normal distinctive character of the earlier mark and the high visual and phonetic similarity of the dominant element ‘dynamics’ to the earlier sign. It concluded that there was a likelihood of confusion only for the goods covered by the mark applied for that were identical to those covered by the earlier mark, namely the dietetic preparations in Class 5. It therefore annulled in part the Opposition Division’s decision to the extent that the opposition had been upheld for dietary supplements and for medical and veterinary preparations and articles, and dismissed the actions for the remainder.
Forms of order sought
11      The applicant claims that the Court should:
–        annul in part the contested decision;
–        dismiss the EU trade mark application for the goods in Class 5;
–        order EUIPO and Ascendo Medienagentur to pay the costs, if the latter decided to intervene in the proceedings.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
Admissibility of the evidence provided for the first time before the General Court
13      It should be noted that, as EUIPO notes, the applicant provided before the General Court, in annex to the application, certain documents which had not been provided in the proceedings before the Board of Appeal. Those documents are presented as Annex A8 to the application and seek to show that the term ‘slim’ is commonly used within the dietetic industry and has a meaning generally understood for the products in connection with which it is used.
14      EUIPO disputes the admissibility of the documents at issue.
15      The documents, produced for the first time before the Court, cannot be taken into consideration. The purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 65 of Regulation No 207/2009 (now Article 72 of Regulation 2017/1001), so it is not the Court’s function to review the facts in the light of documents produced for the first time before it. Accordingly, the abovementioned documents must be excluded and there is no need to assess their probative value (see, to that effect, judgment of 24 November 2005, Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T–346/04, EU:T:2005:420, paragraph 19 and the case-law cited).
Substance
16      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. It submits that there is a likelihood of confusion between the marks at issue for the goods in Class 5. In its view, the goods in Class 5 covered by the mark applied for are either identical or highly similar to those covered by the earlier mark. In addition, the signs at issue are highly similar given the high visual and phonetic similarity of their dominant elements, namely ‘dynamics’ and ‘dynamin’, for the relevant Spanish public. It infers from the foregoing a likelihood of confusion for all the relevant goods in Class 5.
17      EUIPO disputes the applicant’s arguments.
18      In accordance with Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because it is identical or similar to the earlier trade mark or because the goods or services covered by the trade marks are identical or similar, 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)(ii) of Regulation No 207/2009 (now Article 8(2)(a)(ii) of Regulation 2017/1001), the term ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
19      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to that same line of case-law, the likelihood of confusion must be assessed globally according to the relevant public’s perception of the signs and the goods or services at issue, taking into account all factors relevant to the circumstances of the case, in particular the interdependence of the similarity between the signs and between the goods or services (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverley Hills (GIORGIO BEVERLEY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
20      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 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).
21      As a preliminary point, it should be considered, as the Board of Appeal did, that, since the earlier mark on which the opposition is based is a Spanish trade mark, the territory in respect of which the likelihood of confusion must be assessed is that of Spain, as the Board of Appeal found without challenge by the applicant.
The relevant public
22      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
23      In the present case, the Board of Appeal found, in paragraph 13 of the contested decision, that the relevant public was made up of both the general public and a professional public.
24      In terms of the level of attention of the relevant public, it must be noted that, as the Board of Appeal noted, the goods concerned included in Class 5 which are claimed for medical use directly affect the health of the user, so the level of attention of the relevant public will be high, both for the public at large and for the professional public. However, the level of attention may be regarded as average or normal in relation to goods which do not have the same immediate impact on health.
25      In view of the goods at issue, the Court is of the view that the Board of Appeal was right to consider that the relevant public was made up of both Spanish professionals and average consumers, displaying a level of attention ranging from average to high (see, to that effect, judgment of 21 January 2016, Laboratorios Ern v OHIM — michelle menard (Lenah.C), T–802/14, not published, EU:T:2016:25, paragraph 21).
Comparison of the goods
26      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 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).
27      According to the applicant, the goods in Class 5 covered by the mark applied for and those covered by the earlier mark are either identical or highly similar and the contested decision is vitiated by error in so far as it considered the goods to be of average similarity or different.
28      EUIPO disputes the applicant’s arguments concerning the comparison of the goods.
29      As a preliminary point, it must be recalled that the Board of Appeal confirmed the Opposition Division’s assessment concerning the existence of a likelihood of confusion for ‘dietetic preparations’, which it regarded as being identical to the goods covered by the earlier mark. As the applicant was successful before the Board of Appeal as far as those goods are concerned, it did not seek annulment of the contested decision in respect of them, with the result that they are not the subject of the present action.
30      First, the Board of Appeal considered, in paragraph 17 of the contested decision, that the dietetic foods adapted for medical use in any shape or form covered by the earlier mark and the dietary supplements covered by the mark applied for were of average similarity. However, it noted certain differences pertaining to the fact that dietary supplements supplemented everyday food to maintain a healthy diet, whereas the goods covered by the earlier mark were for medical use and could thus replace everyday food which has not been adapted for the medical needs of the end consumer.
31      The applicant claims that those goods are actually highly similar, for they have the same public and can coincide in purpose, distribution channels and method of use.
32      Those arguments must, however, be rejected. In paragraph 17 of the contested decision, the Board of Appeal, in arriving at the conclusion that the goods at issue were of at least average similarity, specifically used as a basis the elements the applicant put forward in support of those arguments. However, the Board of Appeal also found, rightly, that there were differences between the goods at issue, which precluded a finding that they were similar to a higher degree.
33      Second, in paragraphs 19 and 20 of the contested decision, the hygienic preparations and articles covered by the mark applied for were regarded as being different from the goods covered by the earlier mark, on the grounds inter alia that those goods were claimed for medical use and that they were food, unlike the goods covered by the mark applied for. In addition, the Board of Appeal pointed out that their method of use was different, since the hygienic preparations and articles are not ingested but rather are applied to the body.
34      The applicant disputes that assessment on the ground that those goods are closely related given that, in its view, they have the same purpose, which is to improve the health and medical condition of patients, are usually distributed through the same outlets and should therefore be regarded as similar.
35      However, as the Board of Appeal rightly noted, it is likely that the medical use of dietetic foods adapted for medical use in any shape or form, covered by the earlier mark, will be supervised by medical personnel, whereas that will not necessarily be the case with hygienic preparations and articles. Moreover, the mere fact that those two kinds of goods may be sold in pharmacies is not sufficient to establish similarity between them. By the same token, the mere fact that the goods at issue have an impact on health does not suffice to establish similarity in this case. Their purpose is different since the latter are intended for personal hygiene whereas the former are intended to be used for medical diets. Moreover, the goods covered by the earlier mark are food and thus intended to be ingested, which is generally not the case with hygienic preparations and articles, which are rather applied to the body.
36      Therefore, any relationships which might exist between hygienic preparations and articles and the goods covered by the earlier mark do not suffice to establish their similarity.
37      Third, as regards medical and veterinary preparations and articles, covered by the mark applied for, after having noted that none of the parties disputed their similarity to dietetic foods adapted for medical use in any shape or form, covered by the earlier mark, the Board of Appeal upheld that assessment of the Opposition Division.
38      Before the Court, the applicant claims that those goods are ‘highly similar’ since, although they may be different in nature, they can be produced by the same undertaking or related undertakings and are directed at the same public.
39      However, it is sufficient to note that those arguments, apart from not being substantiated, do not suffice to establish that the Board of Appeal’s assessment regarding the similarity of those goods was incorrect. As the applicant itself acknowledges, those goods may be different in nature.
40      It follows from all the foregoing that the applicant’s arguments must be rejected and that the Board of Appeal was right to find that the dietetic foods adapted for medical use in any shape or form covered by the earlier mark were different from hygienic preparations and articles and that they were similar to the dietary supplements and medical and veterinary preparations and articles covered by the mark applied for.
Comparison of the signs at issue
41      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).
42      Moreover, assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgments of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42, and of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
43      In the present case, the Board of Appeal considered that the marks at issue were visually similar to a low degree and phonetically similar to an average degree and that, given that the earlier mark had no meaning for the relevant Spanish public in relation to the goods at issue, the signs were not conceptually similar.
44      First, on the visual level, the applicant disputes the Board of Appeal’s finding that the marks at issue are of low similarity. It argues that the element ‘dynamics’ is the dominant element of the mark applied for, that it is almost identical to the only term of the earlier mark, that the element ‘slim’ in the mark applied for is descriptive and that the graphic element is ordinary. It concludes that the marks at issue are highly similar.
45      EUIPO disputes that line of argument.
46      It must be noted that the mark applied for consists of a figurative sign in black and pale grey, with five short horizontal black bars of different lengths to the left of the word ‘slim’, which is written in pale grey and followed by the word ‘dynamics’ written in black. Those two word elements are the same size, are written at a slight rightwards slope and are in the same-sized standard font. Last, to the right of the word element ‘dynamics’ appears the representation of a device consisting of a circular face with a three-pointed star at the centre, and two curved lines underneath to give a cup-like effect, the height and width of that device being roughly the same as those of the letters in the word elements.
47      The earlier mark is the word sign DYNAMIN.
48      It is settled that the term ‘dynamics’ is the dominant element of the mark applied for. In addition, as the Board of Appeal noted, the marks at issue share the letters ‘d’, ‘y’, ‘n’, ‘a’, ‘m’ and ‘i’. Almost the entire earlier sign is thus included in the figurative sign applied for.
49      However, first of all, it must be observed that the dominant element of the mark applied for is not identical to the earlier mark, since the first ends in the letters ‘c’ and ‘s’, which are visually rounded, whereas the earlier mark ends in the letter ‘n’, which is made up of straight lines for the letter ‘n’. Next, account should be taken of the term ‘slim’, which is not negligible and makes the word element of the mark applied for visually longer. Last, the figurative elements present in front of and behind the word elements of the mark applied for must be taken into account, and those elements are not negligible within the mark as a whole, either.
50      In view of those differences, the Board of Appeal was right to classify the degree of visual similarity of the signs at issue as low.
51      Second, on the phonetic level, the applicant claims that the sounds of the terms ‘dynamics’ and ‘dynamin’ are very close, as EUIPO found in a decision of 22 December 2004 on the EU trade marks Custonomy and CUSTONOMICS. It also cites a decision of a Spanish court noting the similarities between the terms ‘dynamics’ and ‘dynamin’.
52      EUIPO disputes that line of argument.
53      It must be pointed out that, even if the term ‘dynamics’ is dominant within the mark applied for, the term ‘slim’ is not negligible and the applicant advances no argument asserting that that term will not be pronounced. The mark applied for thus contains four syllables whereas the earlier mark contains only three, the element ‘slim’ having no equivalent in the earlier mark. Furthermore, contrary to what the applicant claims, the final letters ‘c’ and ‘s’ of the mark applied for produce a very different sound from that produced by the final letter ‘n’ of the earlier mark. The Board of Appeal was therefore right to consider that the degree of phonetic similarity between the marks at issue was, at most, average.
54      The applicant’s argument, based on a decision of EUIPO delivered in another case, must be rejected. It is apparent from settled case-law that the decisions concerning the registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation and not on the basis of a previous decision-making practice (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65, and of 24 November 2005, ARTHUR ET FELICIE, T‑346/04, EU:T:2005:420, paragraph 71). Moreover, the word marks at issue in the case examined by the Board of Appeal in the decision relied on by the applicant, namely CUSTONOMICS and Custonomy, were, with the exception of the final letters of one of them, very different from the signs at issue in the present case. That argument must therefore be rejected.
55      As regards the decision of a national court cited by the applicant, it should be recalled that it is settled case-law that registrations already made in Member States are only factors which may merely be taken into consideration for the purposes of registering an EU trade mark and are not decisive. The same considerations apply to the case-law of the courts of the Member States (judgment of 19 September 2001, Henkel v OHIM (Round tablet, red and white), T‑337/99, EU:T:2001:221, paragraph 58 and the case-law cited). That decision concerned, first, the national mark DINAMIC and, second, the national marks DYNAMIN and DINAMINO. Since the mark applied for shows differences from the first of the abovementioned marks that are not negligible, the argument of the applicant based on that decision does not call into question the findings of the Board of Appeal in the present case, which took into account the similarities of the signs at issue. That argument must therefore be rejected.
56      Third, as regards the conceptual comparison, the Board of Appeal found that the earlier sign had no meaning for the relevant Spanish public and that the fanciful word ‘dynamin’ was ‘at most vaguely allusive’ on account of its clear differences from the Spanish word ‘dinámico’. It concluded that the signs at issue were not conceptually similar.
57      The applicant raises the issue of conceptual similarity when it claims that the term ‘slim’ will be understood by consumers as being descriptive of the goods at issue and that the element ‘dynamics’ dominant in the mark applied for is highly similar to the term ‘dynamin’, the only term contained in the earlier mark.
58      EUIPO disputes that line of argument.
59      It must be noted that, for the relevant public, the earlier mark may be evocative of the term ‘dinámico’ (dynamic), as the Board of Appeal moreover considered in paragraph 28 of the contested decision. In addition, as EUIPO noted in its written pleadings, the term ‘dynamin’ may be understood, for the goods at issue, as a play on the words ‘dynamics’ and ‘vitamin’. Therefore, contrary to what the Board of Appeal found, the earlier mark is not devoid of meaning for the relevant public.
60      In terms of the sign applied for, it should be pointed out that the term ‘dynamics’ may also refer to the term ‘dinámico’ in Spanish.
61      It follows that, contrary to what the Board of Appeal found in paragraph 28 of the contested decision, it cannot be excluded that, in the perception of the Spanish consumer, the two marks at issue evoke the idea of dynamism and that, in that respect, they demonstrate a certain conceptual similarity.
62      It should however be noted that the term ‘slim’, present in the mark applied for, will not be understood by the non-English-speaking part of the Spanish public.
63      In that regard, since the documents produced as Annex A8 to the application, which were intended to show that the term ‘slim’ is descriptive, cannot be taken into consideration, as has been held in paragraph 15 above, the applicant’s argument based on those documents must be rejected as inadmissible.
64      Moreover, it should be borne in mind that, contrary to what the applicant argues, the English word ‘slim’ is not a basic English word that would be understood even by the non-English-speaking part of the Spanish public (see, to that effect, judgment of 28 September 2010, Market Watch v OHIM — Ares Trading (Seroslim), T‑201/08, not published, EU:T:2010:408, paragraph 44). The applicant’s argument based on the judgment of 30 April 2014, ABC-One v OHIM (SLIM BELLY) (T‑61/12, not published, EU:T:2013:226) to substantiate the descriptive nature of the word ‘slim’, must be rejected. The public concerned by the mark at issue in the case that gave rise to that judgment was an English-speaking public, so that judgment is not relevant for the purpose of showing understanding of the term ‘slim’ by the Spanish public.
65      Therefore, the marks at issue are similar only to the extent that they evoke the idea of dynamism and are distinguished by the presence, in the mark applied for, of the term ‘slim’, which constitutes a fanciful term for the relevant non-English-speaking public. Furthermore, even supposing that the relevant public understood the term ‘slim’, that would increase the conceptual differences between the signs, since the concept of slimness is completely absent from the earlier mark.
66      Accordingly, the degree of conceptual similarity must be classified as low.
67      It follows from the foregoing that the Board of Appeal erred, in paragraph 28 of the contested decision, in finding that one of the signs had no conceptual meaning and that the signs were not conceptually similar.
68      However, it follows from paragraph 32 of the contested decision that the Board of Appeal concluded that, as a whole, the degree of similarity of the marks at issue was of no more than low to average.
69      Such a conclusion must be upheld, in spite of the error committed in relation to the conceptual comparison, found in paragraph 67 above. It must be considered that the signs at issue are of low visual similarity, of at least average phonetic similarity and of low conceptual similarity. Therefore, the finding that the marks at issue are of no more than low to average similarity must be approved.
70      It is appropriate to examine now whether there is a likelihood of confusion between the marks in question for the goods at issue.
Likelihood of confusion
71      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, 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).
72      Furthermore, the more distinctive the earlier mark, the greater will be the likelihood of confusion (judgment of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24).
73      In paragraphs 31 to 33 of the contested decision, the Board of Appeal took into account the normal distinctive character of the earlier mark, the level of attention of the relevant public varying from average to high for the goods concerned and the degree of similarity between the signs at issue varying from low to average. It concluded that there was a likelihood of confusion only for the dietetic preparations covered by the mark applied for, which were considered identical to the goods covered by the earlier mark.
74      The applicant disputes that conclusion and claims that there is a likelihood of confusion for all the goods in Class 5, which are, in its view, identical, highly similar or closely related. It relies on, inter alia, the high degree of similarity between the signs at issue on the visual and phonetic levels.
75      EUIPO disputes that line of argument.
76      First of all, as regards the goods in Class 5 at issue, it follows from paragraph 39 above that the dietetic foods adapted for medical use in any shape or form covered by the earlier mark were rightly considered different from the hygienic preparations and articles covered by the mark applied for.
77      As has been recalled in paragraph 20 above, 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 22 January 2009, easyHotel, T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
78      Therefore, the applicant’s argument seeking a finding of a likelihood of confusion between the marks at issue must be rejected so far as concerns hygienic preparations and articles.
79      Next, with regard to the other goods at issue, the Board of Appeal was correct, first, in considering, in paragraph 31 of the contested decision, that the distinctive character of the earlier mark was normal, which, moreover, is not disputed by the applicant, and second, in taking into account, in paragraph 33 of the contested decision, a level of attention of the relevant public varying from average to high for the goods at issue.
80      In those circumstances, it was without error that, in view inter alia of the limited similarity of the signs at issue as found above (see paragraph 69 above), it concluded that there was no likelihood of confusion between the marks at issue for the other goods covered by the mark applied for, namely, dietary supplements and medical and veterinary preparations and articles.
81      It follows from all of the foregoing that the single plea in law must be rejected as unfounded and the action must, therefore, be dismissed in its entirety.
Costs
82      Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Laboratorios Ern, SA to pay the costs.
Berardis
Spielmann
Csehi
Delivered in open court in Luxembourg on 13 December 2017.
E. Coulon
G. Berardis
Registrar
President
*      Language of the case: English.