JUDGMENT OF THE GENERAL COURT (First Chamber)
8 February 2023 (*)
(EU trade mark – Opposition proceedings – Application for European Union word mark LOULOU STUDIO – Earlier international word mark LULU’S – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑24/22,
Ugo Bensoussan, residing in Paris (France), represented by V. Bouchara and A. Maier, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Lulu’s Fashion Lounge LLC, established in Chico, California (United States), represented by C. Bercial Arias, K. Dimidjian-Lecompte and K. Henry, lawyers,
THE GENERAL COURT (First Chamber),
composed of D. Spielmann (Rapporteur), President, R. Mastroianni and M. Brkan, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure,
further to the hearing on 7 December 2022,
gives the following
Judgment
1        By his action under Article 263 TFEU, the applicant, Mr Ugo Bensoussan, seeks annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 November 2021 (Case R 480/2021‑4) (‘the contested decision’).
Background to the dispute
2        On 5 April 2019, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign LOULOU STUDIO.
3        The mark applied for designated goods and services in, inter alia, Classes 18, 25 and 35 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 corresponding, for each of those classes, to the following description:
–        Class 18: ‘Handbags; Beggar’s bags; Backpacks; Sport bags; Beach bags; Nappy bags; Document cases of leather; Briefbags; Wallets; Card wallets [leatherware]; Banknote holders; Coin purses, not of precious metal; Satchels; Key cases [leatherware]; leather driver’s licence cases; Business card cases; Toiletry bags; Cosmetic purses; Vanity cases (not fitted); shopping bags; Purses; Bumbags’;
–        Class 25: ‘Clothing; Clothing made from leather or imitation leather; Underwear; Lingerie; Socks; Stockings; Tights; Leg warmers; Swimming costumes; Trunks; Beach wraps; Robes; Pyjamas; Dressing gowns; Nighties; Ties, bow ties; Scarves; Sashes for wear; Stoles; Shawls; Headbands [clothing]; Belts [clothing]; Suspenders; Gloves [clothing]; Mittens; Headgear; Visors [headwear]; Ear muffs [clothing]; Footwear [excluding orthopedic footwear]; Beach shoes, skiing or sports shoes; Slippers; Footwear soles; Heelpieces for footwear; Furs [clothing]; Hosiery’;
–        Class 35: ‘Consumers (Commercial information and advice for -) [consumer advice shop]; Retailing and online sale of leather and imitations of leather, Handbags, Bags for campers, Messenger bags, Back packs, Bags for sports, Beach bags, Nappy changing bags, briefcases made of leather; Retailing and online sale of briefcases, Wallets, card holders, billfolds, Purses, not of precious metal, Travel accessories (leather goods); Retailing and online sale of school satchels, Trunks, Suit cases, Valises, Luggage, Luggage tags (leatherware), key cases [leather goods], Cases for driving licenses made of leather, Business card cases, Leather cases for cheque books; Retailing and online sale of cases of leather, tie cases, Toilet bags, makeup bags, Vanity cases (not fitted), Garment and shoe bags for travel; Retailing and online sale of hat boxes of leather or imitations of leather, Umbrellas, Parasols, Walking sticks, Collars and covers for animals, Carrying bags for animals; Retailing and online sale of net bags for shopping and shopping bags, Bags or sachets (envelopes, pouches) of leather, for packaging, Whips, harness and saddlery, Leads, Exchanges, Bumbags; Retailing and online sale of clothing, Underwear, Socks, Stockings, Tights, Leotards, Swimwear, Bathing shorts, Pareu, Bath robes, Pyjamas, Dressing gowns; Retailing and online sale of nighties, Neckties, Bow ties, Scarfs, Scarves, stolas, Shawls, Headbands (clothing); Retailing and online sale of belts (clothing), suspenders, Gloves for clothing, fingerless gloves, headpieces, Visors for heads, ear muffs; Retailing and online sale of footwear (except orthopaedic footwear), Slippers, soles for footwear; Retailing and online sale of heelpieces for footwear, Furs (clothing), Hosiery’.
4        On 4 October 2019, the intervener, Lulu’s Fashion Lounge LLC, filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
5        The opposition was based on, inter alia, the earlier international registration designating the European Union of the word mark LULU’S, registered on 17 September 2014 under No 1 230 611, covering goods and services in Classes 25 and 35 and corresponding, for each of those classes, to the following description:
–        Class 25: ‘Clothing, namely dresses, tops, sweaters, vests, jackets, skirts, pants, jeans, shorts, leggings, tights, socks, overalls, swimwear, rompers, jumpsuits, lingerie, and bodysuits; headwear, namely hats; footwear, namely shoes, boots, flip flops, sandals’;
–        Class 35: ‘Computerized on-line ordering featuring general merchandise and general consumer goods; computerized on-line ordering services in the field of clothing, shoes, jewelry and accessories; computerized on-line retail store services in the field of clothing, shoes, jewelry and clothing accessories, shoe accessories and jewelry accessories’.
6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        On 19 January 2021, the Opposition Division partially upheld the opposition in respect of the goods and services referred to in paragraph 3 above.
8        On 15 March 2021, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9        By the contested decision, the Board of Appeal dismissed the appeal. First, it noted that the relevant public consisted of professionals and the general public in the European Union, whose level of attention was average. Secondly, it found that the goods and services at issue were all identical or similar, at least to a low degree. Thirdly, it found that the signs at issue were visually similar to an average degree and phonetically similar to a high degree. It added that those signs would both be perceived as a diminutive of the first name Louise, but that such a reference did not convey any concept. Fourthly, it found that the earlier mark had an average degree of distinctiveness. Having also rejected the applicant’s arguments based on previous decisions concerning signs that are different from those at issue, the Board of Appeal concluded that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, with regard to the goods and services referred to in paragraph 3 above.
Forms of order sought
10      The applicant claims that the Court should:
–        set aside the contested decision;
–        order EUIPO and the intervener to pay the costs, including those incurred in the proceedings before EUIPO.
11      EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
12      In support of his action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. In particular, he disputes whether there is a likelihood of confusion on the part of the relevant public.
13      EUIPO and the intervener dispute the applicant’s arguments.
14      Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier mark. Furthermore, under Article 8(2)(a)(iv) of Regulation 2017/1001, the term ‘earlier trade marks’ means, inter alia, 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.
15      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and the 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).
16      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services in question in that territory. However, it must be borne in mind that, in order for an EU trade mark to be refused registration, it suffices that a relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
17      In the present case, the applicant does not dispute the findings of the Board of Appeal according to which, first, the relevant public consists of professionals and the general public in the European Union, whose level of attention is average, and, secondly, the goods and services at issue are identical or similar, at least to a low degree.
18      By contrast, the applicant disputes the findings of the Board of Appeal relating, first, to the visual, phonetic and conceptual comparison of the signs at issue and, secondly, to the global assessment of the likelihood of confusion.
The comparison of the signs
19      It must be borne in mind that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
20      Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That may be the case, in particular, where that component is likely by itself to dominate the image which the relevant public retains of that mark, with the result that all the other components of the mark 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).
Failure to take into account the signs at issue as a whole
21      As a preliminary point, the applicant criticises the Board of Appeal on the ground that it did not compare the signs at issue as a whole, but arbitrarily excluded from the comparison the word ‘studio’ of the mark applied for, in order to compare only the terms ‘loulou’ and ‘lulu’.
22      The Board of Appeal noted – without being challenged on this point by the applicant – that the relevant public would break down the mark applied for into two words, ‘loulou’ and ‘studio’, and that it would perceive the word ‘studio’ as no more than a description of the origin of the design or manufacture of the goods or services referred to in the application for registration. It inferred from this that the word ‘studio’ had little or no distinctive character.
23      However, contrary to what the applicant claims, the Board of Appeal took into account the term ‘studio’ in its visual and phonetic comparison of the signs at issue. Thus, comparing those signs visually, it found that the fact that the mark applied for contains a second, secondary word element, which had no counterpart in the earlier mark, was not sufficient to offset the similarities found elsewhere. It noted that, phonetically, the relevant public would pronounce the two words making up the mark applied for as five syllables, which it reproduces in the phonetic alphabet. Next, it noted that the second word of the mark applied for had ‘no phonetic counterpart’ in the earlier mark, that it had a lesser impact and that it would be perceived as having little or no distinctive character.
24      It follows that, as regards the visual and phonetic comparison of the signs, the applicant’s argument has no factual basis.
25      As regards the conceptual comparison of the signs at issue, the Board of Appeal did not mention the word ‘studio’ in its analysis. However, since that Board of Appeal found – without being challenged on this point by the applicant – that the word ‘studio’ had little or no distinctive character, that omission cannot, in the light of the case-law referred to in paragraph 20 above, constitute an error of law.
26      Therefore, as regards the conceptual comparison of the signs, the applicant’s argument is unfounded. Accordingly, the argument relating to the alleged failure to take into account the signs at issue as a whole must be rejected.
The visual comparison of the signs
27      The applicant claims that the signs at issue are visually very different. First, he submits, those signs have different structures. The earlier mark has a typical English structure, in that it consists of a word followed by an apostrophe and the letter ‘s’, whereas the mark applied for consists of two French words and is twice as long as the earlier mark. Secondly, the mark applied for, unlike the earlier mark, lacks any graphic or stylistic element. Thirdly, EUIPO concluded, in previous decisions, that there was no visual similarity between signs comparable to those at issue in the present case. Consequently, the fact that the signs at issue share four letters is insufficient to outweigh the visual differences between those signs.
28      The Board of Appeal found that there was an average degree of visual similarity between the signs at issue. In particular, it found that the word ‘loulou’, which is the first and most distinctive element of the mark applied for, was highly similar to the earlier mark. It added that the fact that the mark applied for contains a second, secondary word element, namely the word ‘studio’, which had no counterpart in the earlier mark, was not sufficient to outweigh the similarity found.
29      As regards the applicant’s arguments relating to the structure of the signs at issue, it must be borne in mind that the relevant public is the general public in the European Union and that, for the purposes of appraising the likelihood of confusion, the Board of Appeal assessed the perception of the signs at issue from the perspective of the English-speaking public, located in Ireland and Malta. However, as knowledge of a foreign language cannot, in general, be assumed (see judgment of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø), T‑399/20, EU:T:2021:442, paragraph 39 and the case-law cited), the applicant cannot rely, without substantiating his claims, on the fact that the relevant public will perceive the mark applied for as consisting of two words belonging to the French language. Moreover, first, the applicant does not claim that the words ‘loulou’ and ‘studio’ belong to the basic vocabulary of that language and, secondly, as EUIPO rightly points out, the word ‘studio’ exists in English.
30      Furthermore, it must be borne in mind that the applicant does not dispute the Board of Appeal’s assessments referred to in paragraph 22 above. Nor does he dispute that the word ‘loulou’ is highly similar to the earlier mark. He merely submits that the similarity between the signs at issue resulting from the fact that they share four letters is insufficient to outweigh the differences between them.
31      Therefore, the applicant has not shown that the Board of Appeal made an error of assessment in finding that, despite the presence in the mark applied for of the word ‘studio’, which is absent from the earlier mark, the signs at issue were visually similar to an average degree.
32      That finding is not called into question by the applicant’s other arguments.
33      As regards the argument relating to the figurative elements allegedly distinguishing the signs at issue, it must be borne in mind that the earlier mark, referred to in paragraph 5 above, is a word mark. According to the case-law, a word mark is a mark consisting entirely of letters, of words or of associations of words, written in printed characters in normal font, without any specific graphic element. The protection which results from registration of a word mark concerns the word mentioned in the application for registration and not the specific graphic or stylistic elements accompanying that mark (see judgment of 7 May 2009, Klein Trademark Trust v OHIM – Zafra Marroquineros (CK CREACIONES KENNYA), T‑185/07, EU:T:2009:147, paragraph 48 and the case-law cited). That argument must therefore be rejected.
34      As regards the arguments based on previous decisions of EUIPO, it must be recalled that EUIPO is required to take a decision on the basis of the circumstances of each individual case and that it is not bound by previous decisions taken in other cases. The legality of the decisions of the Boards of Appeal must be assessed solely on the basis of Regulation 2017/1001 and not on the basis of any previous decision-making practice of those boards. Furthermore, in its review of legality, the Court is not bound by the decision-making practice of EUIPO (see judgment of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 39 and the case-law cited). In the present case, it must be stated that the decisions cited by the applicant concerned signs that are different from those at issue in the present case.
35      Consequently, the applicant’s arguments must be rejected.
The phonetic comparison of the signs
36      The applicant claims that the signs at issue are phonetically different. First, the mark applied for is pronounced, by the relevant public, as five, or even seven, syllables, whereas the earlier mark contains, in all languages, two syllables. Secondly, the pronunciation of the earlier mark is accentuated on its last syllable, the last letter ‘s’, which produces a ‘long whistling sound’. Thirdly, the pronunciation of the mark applied for is dominated by the long and strong syllables that make up the word ‘studio’. Fourthly, the elements ‘lulu’ and ‘loulou’ are pronounced differently by a significant part of the relevant public, which is not familiar with the juxtaposition of the letters ‘o’ and ‘u’ and which, therefore, could divide the pronunciation of ‘lou’ into two syllables. Fifthly, EUIPO found, in previous decisions, that there was no phonetic similarity between signs comparable to those at issue in the present case.
37      The Board of Appeal found that there was a high degree of phonetic similarity between the signs at issue. In that regard, it noted that the relevant public would pronounce the two words of the mark applied for in five syllables, which it reproduces in the phonetic alphabet. It added that the first syllable of each sign at issue was identical and that the second was almost identical, except for the sound produced by the letter ‘s’ in the earlier mark. It then noted that the second term of the mark applied for had ‘no phonetic counterpart’ in the earlier mark and that it had a lesser impact on the comparison in that regard.
38      It must be stated that the applicant’s claims that the mark applied for is phonetically dominated by the allegedly long and strong syllables making up the word ‘studio’, and by the pronunciation of the element ‘lou’ in two syllables by part of the relevant public, are not substantiated in any way. Consequently, they do not make it possible to establish that there was an error of assessment on the part of the Board of Appeal.
39      Furthermore, the applicant does not dispute that the word ‘studio’ has little or no distinctive character. Therefore, the applicant cannot criticise the Board of Appeal for having attributed less importance to that word in the result of the phonetic comparison of the signs at issue.
40      Furthermore, the applicant does not dispute that the first syllable of each of the signs at issue is pronounced identically for the English-speaking part of the relevant public.
41      Moreover, as has been pointed out in paragraph 37 above, the Board of Appeal took account of the difference in pronunciation between ‘loulou’ and ‘lulu’s’ caused by the last letter ‘s’ of the latter mark. Therefore, even if, in certain languages, the stress would be placed on the second syllable of ‘lulu’s’, so as to make the final ‘s’ clearly audible, such a circumstance would not in itself be sufficient for a finding that the Board of Appeal’s conclusion on the phonetic similarity is flawed.
42      Lastly, the applicant’s arguments based on previous decisions of EUIPO must be rejected for the reasons set out in paragraph 34 above.
43      Consequently, the applicant’s arguments must be rejected.
The conceptual comparison of the signs
44      According to the case-law, conceptual similarity means that the signs at issue convey analogous semantic content (judgment of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24).
45      The applicant claims that the signs at issue are not conceptually similar. First, he disputes that the terms ‘loulou’ and ‘lulu’ may be understood by the relevant public as diminutives of the first name Louise and claims that that public will not associate those terms with any first name. He adds that those words have no meaning linked to the goods and services at issue or any meaning which could lead to their being associated conceptually by consumers. Secondly, the mark applied for evokes France to consumers on account of the fact that it consists of two French words and the combination of vowels ‘ou’ is a feature of the French language. By contrast, the earlier mark evokes the English language, on account of its grammatical construction, resulting from the apostrophe and the final ‘s’, which is typical of that language. That mark, he submits, will be understood by consumers as meaning ‘something belonging to Lulu’. Thirdly, the words ‘loulou’ and ‘lulu’ have several meanings in French which are very different from each other and none of which is linked to a first name. In English, the word ‘lulu’ has a meaning, but not the word ‘loulou’. Fourthly, the Board of Appeal was wrong to rely exclusively on the perception of the English-speaking part of the relevant public. Fifthly, EUIPO concluded, in previous decisions, that there was no conceptual similarity between signs comparable to those at issue in the present case.
46      The Board of Appeal found that both of the signs at issue would be understood as diminutive forms of the first name Louise. However, it took the view that that common reference did not convey any concept. It follows that, in so doing, it did not find any conceptual similarity between those signs.
47      Furthermore, it must be noted that the applicant puts forward contradictory arguments, claiming, in turn, that the signs at issue are devoid of any intrinsic perceptible meaning that could potentially have the consequence of consumers associating those signs conceptually, since the words ‘loulou’ and ‘lulu’ have very different meanings in both French and English. Therefore, the applicant noted, inter alia, that, in French, the word ‘loulou’ had several known meanings and the word ‘lulu’ had a very different meaning from that of ‘loulou’, whereas in English the terms ‘lulu’ and ‘loulou’ had fundamentally different meanings.
48      As regards the argument that the signs at issue are devoid of any meaning that could lead to a conceptual similarity on the part of the public, this seeks, assuming it is well founded, to find that there is no conceptual similarity between the signs.
49      However, as is apparent from paragraph 46 above, that is the conclusion reached by the Board of Appeal. The argument is therefore ineffective.
50      As regards the argument that the terms ‘loulou’ and ‘lulu’ or ‘lulu’s’ have different meanings, both in French and in English, the following should be noted.
51      First, as regards the meaning in French of the words ‘loulou’ and ‘lulu’, it must be borne in mind that the public in respect of which the Board of Appeal assessed whether there was a likelihood of confusion is the English-speaking public, in Ireland and Malta. In the light of the case-law referred to in paragraph 29 above, the applicant cannot rely, without substantiating his claims, on the fact that that part of the relevant public will perceive the meaning in French of the terms ‘loulou’ and ‘lulu’, which he has not, moreover, claimed belong to the basic vocabulary of that language.
52      Secondly, the applicant accepts that the word ‘loulou’ has no meaning in English and submits that the word ‘lulu’ means ‘something that is extremely good or extremely bad’ in that language. As is apparent from the extract from the dictionary produced by the applicant in support of that claim, the word ‘lulu’ is an old-fashioned American English slang word.
53      Therefore, while it is possible that some English-speaking consumers in the European Union will understand the word ‘lulu’ according to its definition referred to above, that assessment cannot be accepted for a large part of the relevant public. On the contrary, it is, for a large part of that public, a fanciful term devoid of semantic content.
54      By contrast, the applicant rightly submits that the English-speaking part of the relevant public is likely to understand the earlier mark as designating something belonging to a person called Lulu. Having regard to the construction of the genitive case of proper nouns in English, the apostrophe added to the word ‘lulu’ and followed by ‘s’ in the earlier mark will be understood by that part of the public as a reference to a person called Lulu in the possessive case (see, to that effect, judgment of 23 February 2022, Ancor Group v EUIPO – Cody’s Drinks International (CODE-X), T‑198/21, EU:T:2022:83, paragraph 34).
55      However, that circumstance, correctly noted by the Board of Appeal in paragraph 19 of the contested decision, does not affect the finding that there is no conceptual similarity between the signs at issue.
56      Lastly, the applicant’s arguments based on previous decisions of EUIPO must be rejected for the reasons set out in paragraph 34 above.
57      Consequently, the applicant’s arguments must be rejected.
The likelihood of confusion
58      The applicant disputes that there is a likelihood of confusion on the part of the relevant public. To that end, he repeats, in essence, the arguments by which he challenged the Board of Appeal’s comparison of the signs.
59      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 lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
60      It is apparent from paragraphs 27 and 28 of the contested decision that the Board of Appeal assessed whether there was a likelihood of confusion on the part of the English-speaking part of the relevant public by taking into account, in the mark applied for, the highly distinctive character of the word ‘loulou’ and the descriptive character of the word ‘studio’, the identity, or at least the low degree of similarity, of the goods and services at issue, the normal distinctiveness of the earlier mark, the average level of attention of the relevant public, and the average degree of visual similarity and the high degree of phonetic similarity between the signs at issue.
61      As is apparent from the grounds of the present judgment, those assessments have not been challenged or are not vitiated by error.
62      Furthermore, it must be borne in mind that the Board of Appeal found that there was no conceptual similarity between the signs at issue. It follows that the Board of Appeal’s assessment as to the existence of a likelihood of confusion is not vitiated by error.
63      Accordingly, the single plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
64      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, he 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 (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Ugo Bensoussan to pay the costs.
Spielmann
Mastroianni
Brkan
Delivered in open court in Luxembourg on 8 February 2023.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.