JUDGMENT OF THE COURT (Second Chamber)
11 March 2026 (*)
( EU trade mark – Opposition proceedings – Application for EU figurative mark V VENILO – Earlier EU figurative mark V – Relative ground for refusal – Likelihood of confusion – Earlier mark’s lack of enhanced distinctiveness acquired through use – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑62/25,
Shenzen Smoore Technology Ltd,
established in Shenzhen (China), represented by J. Erdozain López, M. López Camba, E. Mourisco Ayuso and J. Vicente Martínez, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO),
represented by A. Ringelhann and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Dongguan BEC Technology Co. Ltd,
established in Dongguan (China),
THE GENERAL COURT (Second Chamber),
composed of N. Półtorak, President, G. Hesse (Rapporteur) and D. Petrlík, Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 27 November 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Shenzen Smoore Technology Ltd, seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 November 2024 (Case R 247/2024‑4) (‘the contested decision’).
Background to the dispute
2        On 10 October 2022, the other party to the proceedings before EUIPO, Dongguan BEC Technology Co. Ltd, filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3        The mark applied for covered goods and services in Classes 34, 35 and 42 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 34: ‘Electronic cigarettes; liquid solutions for use in electronic cigarettes; liquid nicotine solutions for electronic cigarettes; flavourings, other than essential oils, for tobacco substitutes; flavourings, other than essential oils, for use in electronic cigarettes; cigarette filters; tips of yellow amber for cigar and cigarette holders; articles for use with tobacco; electronic cigarette cases; electronic cigarettes for use as an alternative to traditional cigarettes;
–        Class 35: ‘Demonstration of goods; sample distribution; advertising; presentation of goods on communication media, for retail purposes; pay per click advertising; business management and organization consultancy; providing commercial information and advice for consumers in the choice of products and services; import and export agencies; marketing services; provision of an on-line marketplace for buyers and sellers of goods and services’;
–        Class 42: ‘Technical research; conducting technical project studies; physics [research]; quality control; research and development of new products for others; quality testing; design of industrial products; packaging designs; styling [industrial design]; design of prototypes’.
4        On 11 January 2023, the applicant 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 the earlier EU figurative mark No 18607657, as reproduced below, which was registered on 16 April 2022:
6        The earlier mark covered goods in Classes 9 and 34, corresponding, for each of those classes, to the following description:
–        Class 9: ‘Electric coils for electric and electronic cigarettes; batteries for electronic cigarettes; chargers for electronic cigarettes; rechargeable batteries’;
–        Class 34: ‘Electronic cigarettes; cigars; cigarette cases; cigarette holders; cigarette tubes; tobacco pipes; electronic cigarettes for use as an alternative to traditional cigarettes; cigarettes containing tobacco substitutes, not for medical purposes; tobacco substitutes not for medical purposes; heated tobacco products; electronic smoking pipes; electronic devices for the inhalation of nicotine containing aerosol; tobacco products for the purpose of being heated; hand-held smoking tools used to heat tobacco electronically; electronic heating handheld smoking tool; smoking tools used in electronic tobacco; rechargeable hand-held smoking appliance; parts and fittings for heating hand-held smoking appliances; oral vaporizers for smokers; heating elements for use in electronic cigarettes; atomizing elements for electronic atomization’.
7        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).
8        On 8 December 2023, the Opposition Division rejected the opposition.
9        On 31 January 2024, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
10      By the contested decision, the Board of Appeal dismissed the appeal on the ground that, taking into account the relevant factors and their mutual interdependence, there was no likelihood of confusion, on the part of the relevant public, as to the origin of the goods covered by the marks at issue and included in Class 34. On the other hand, as regards the contested services in Classes 35 and 42, since these were, in its view, dissimilar to the goods covered by the earlier mark, it ruled out any likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the other party to the proceedings before EUIPO to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
Law
13      In support of its action, the applicant relies on two pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation 2017/1001 and the second alleging infringement of Article 94(1) of that regulation.
The first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
14      By its first plea, the applicant disputes the Board of Appeal’s assessment that there is no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
15      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 is not to be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
16      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 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).
17      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, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of 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).
The relevant public and its level of attention
18      First of all, the Board of Appeal found that, as regards the goods in Class 9 covered by the earlier mark, the relevant public consisted of the public at large and that its level of attention varied from average to higher than average. Next, with regard to the goods in Class 34 covered by the marks at issue, it stated that, although those goods were mass-consumption articles, tobacco consumers were considered to be more selective and, therefore, their level of attention was high. Finally, with regard to the services in Classes 35 and 42 covered by the mark applied for, the Board of Appeal found that they were aimed at professionals, who would pay a high level of attention. With regard to the relevant territory, the Board of Appeal found that this was the whole of the European Union.
19      The applicant does not dispute those assessments by the Board of Appeal.
The comparison of the goods and services at issue
20      In assessing the similarity of the goods and services at issue, all the relevant factors relating to those goods and services 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).
–       The comparison of the goods in Class 34 covered by the marks at issue
21      In paragraphs 39 to 43 of the contested decision, the Board of Appeal found that the goods in Class 34 covered by the mark applied for were identical to the goods in the same class covered by the earlier mark, which the applicant does not dispute.
–       Comparison between the services in Classes 35 and 42 covered by the mark applied for and the goods covered by the earlier mark
22      The Board of Appeal noted, in paragraphs 44 to 48 of the contested decision, that the services in Classes 35 and 42 referred to in paragraph 3 above were different from the goods covered by the earlier mark. In particular, the Board of Appeal found that those goods and services differed in their nature, their intended purposes and their methods of use, as well as in their suppliers. They were also aimed at different publics, which rules out any complementarity.
23      The applicant considers that the contested services in Classes 35 and 42 and the goods covered by the earlier mark are at least similar to an average degree. First, with regard to the services in Class 35, it argues that, according to established case-law, there is an average degree of similarity between the retail services and the goods to which those services relate, on account of their complementary character. In its view, the fact that the wording of those services does not refer to cigarettes or other smoking products does not mean that their purpose is not related to the goods in Class 34, which were found to be identical in the marks at issue. If the other party to the proceedings before the Board of Appeal had intended to use the contested mark for goods other than those covered by the application for registration, it would have extended that application to those goods.
24      Secondly, with regard to the services in Class 42, the applicant argues that they are necessary steps in the tobacco industry to be able to develop devices such as those which the other party to the proceedings before the Board of Appeal intends to develop and sell, in the light of the goods it designated in its application for registration. There is therefore a connection between those services and the goods covered by the earlier mark, which is also consistent with the case-law.
25      EUIPO disputes that line of argument.
26      In that regard, it must be pointed out that it is necessary to compare the goods as registered or as covered by the application for registration and not as resulting from the use of the mark at issue (see judgment of 25 November 2014, Brouwerij Van Honsebrouck v OHIM – Beverage Trademark (KASTEEL), T‑374/12, not published, EU:T:2014:990, paragraph 78 and the case-law cited).
27      Moreover, the principles applicable to the comparison of goods also apply to the comparison between goods and services. It is true that, by their very nature, goods are generally different from services, but it nevertheless remains the case that they can be complementary or that services may have the same purpose or use as goods, and thus compete with each other. It follows that, in certain circumstances, goods and services may be found to be similar (see judgment of 7 September 2016, Victor International v EUIPO – Ovejero Jiménez and Becerra Guibert (VICTOR), T‑204/14, not published, EU:T:2016:448, paragraph 105 and the case-law cited).
28      It should also be noted that goods or services which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (see, to that effect, judgment of 22 January 2009, Commercy v OHIM‑easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 57 and the case-law cited).
29      In the first place, it is clear from the case-law that, by definition, goods and services intended for different publics cannot be complementary (see, to that effect, judgment of 11 October 2023, Flowbird v EUIPO – APCOA Parking Holdings (FLOWBIRD), T‑296/22, not published, EU:T:2023:613, paragraph 25 and the case-law cited). In the present case, it is not disputed by the applicant, as noted in paragraph 18 above, that the services in Class 35 are aimed at professionals, while the goods in Class 34 are aimed at the general public.
30      In the second place, the reasoning followed in the judgments relied on by the applicant cannot be applied to the present case. The judgments of 7 October 2015, CBM v OHIM – Aeronautica Militare (TRECOLORE) (T‑365/14, not published, EU:T:2015:763); of 20 March 2018, Grupo Osborne v EUIPO – Ostermann (DONTORO dog friendship) (T‑390/16, not published, EU:T:2018:156); and of 19 December 2019, El Corte Inglés v EUIPO – Lloyd Shoes (LLOYD) (T‑729/18, not published, EU:T:2019:889), concern the similarity between retail services and the goods to which those services relate on account of the fact that they are complementary. However, it should be noted that the services at issue do not consist of retail sales, but include, inter alia, the ‘presentation of goods on communication media, for retail purposes’. In that regard, retail services and the goods to which those services relate are aimed at the same public, namely the general public (see, to that effect, judgment of 19 December 2019, LLOYD, not published, T‑729/18, EU:T:2019:889, paragraphs 26 and 28). By contrast, as noted in paragraph 29 above, the services at issue in the present case and the goods to which those services relate are aimed at two distinct publics and cannot, therefore, be regarded as complementary.
31      In those circumstances, the services in Class 35, identified in paragraph 3 above, are different from the goods covered by the earlier mark, as found by the Board of Appeal.
32      The same applies to the ‘technical research; conducting technical project studies; physics [research]; quality control; research and development of new products for others; quality testing; design of industrial products; packaging designs; styling [industrial design]; design of prototypes’ services in Class 42, covered by the mark applied for.
33      The applicant merely states that there is a connection between those services and the goods covered by the earlier mark, in that they constitute necessary steps for the development of those goods, which the proprietor of the mark applied for intends to sell.
34      However, such an assertion is not sufficient to demonstrate the existence of a sufficiently close connection, within the meaning of the case-law referred to in paragraph 28 above.
35      Moreover, since the wording of those services is general and makes no reference to the goods covered by the earlier mark, the applicant’s assertion that they relate to those goods and the intention of the proprietor of the mark applied for to develop and sell them remain mere unsubstantiated speculation.
36      In the light of the foregoing, the applicant has no basis in claiming that the findings of the Board of Appeal regarding the comparison of the goods and services at issue are vitiated by an error of assessment.
The comparison of the signs
37      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).
38      The assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That 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).
39      Moreover, the descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by the mark (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited).
40      In the present case, the mark applied for is a figurative mark containing the word element ‘venilo’ written in black and in bold type. The figurative element consists of a black letter ‘v’ in bold placed inside a black circle. That letter’s left side interrupts and continues with a small diagonal line which cuts through the upper left part of the circle.
41      The earlier mark is a figurative mark. It consists of a black letter ‘v’ in bold placed inside a black circle. That letter is slightly tilted to the right and its right side intersects with the edge of the circle. The bottom of the letter is flat and the lines constituting it are thick and uniform.
42      Before addressing the question of the visual, phonetic and conceptual similarity of the signs at issue, it is necessary to examine the Board of Appeal’s assessment of their distinctive and dominant elements.
–       The distinctive and dominant elements of the signs
43      For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods and services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods and services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods and services for which the mark has been registered (see judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM – Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 47 and the case-law cited).
44      Moreover, it must be borne in mind that, according to settled case-law, the weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element, since it may, on account, in particular, of its position in the sign or its size, make an impression on consumers and be remembered by them. Accordingly, in certain circumstances, on account, in particular, of its position in the sign or its size, a descriptive element may make an impression on consumers and be remembered by them (see judgment of 28 April 2016, Gervais Danone v EUIPO – Mahou (B’lue), T‑803/14, not published, EU:T:2016:251, paragraph 25 and the case-law cited).
45      As regards the distinctive elements of the signs at issue, first of all, the Board of Appeal found that the circles in those signs would be perceived as frames or backgrounds of the letter ‘v’ and therefore have limited distinctiveness.
46      Next, as regards the letter ‘v’ in the signs at issue, the Board of Appeal found that a part of the relevant public would perceive it as the initial letter of terms such as ‘vaping’, ‘vaporiser’, ‘vape’ or ‘vapour’, which describe the nature and characteristics of the great majority of the goods at issue in Classes 9 and 34. Consequently, for that part of the relevant public, the letter ‘v’ has a weak distinctive character in relation to those goods.
47      The Board of Appeal also found that the letter ‘v’ could be perceived as referring to the initial letter of the word element ‘venilo’ of the mark applied for, which would make its role subsidiary with respect to that word element. In those circumstances, the letter ‘v’ therefore has a weak distinctive character.
48      According to the Board of Appeal, the stylisations of the depictions of the letter ‘v’ in the signs at issue add some minimal distinctive character.
49      Finally, the Board of Appeal found that the word element ‘venilo’ in the mark applied for was distinctive, since it had no meaning in the languages of the relevant territory.
50      As regards the dominant elements of the signs at issue, the Board of Appeal found that those signs contained no element capable of dominating their overall impressions.
51      The applicant contests those assessments. It argues that the letter ‘v’ is the dominant element of the mark applied for, due to its size, its position and the fact that the word element ‘venilo’ is below it, in a more common font style and smaller size. In support of its arguments, it refers to case-law according to which, first, the figurative element of a composite mark may rank equally with the word element and, secondly, a word element may play a less important role than the figurative element on account of its secondary position.
52      EUIPO disputes the applicant’s arguments. It maintains that the word element ‘venilo’ is of such a size that it cannot be considered negligible.
53      In that connection, in the first place, as regards the distinctive character of the elements of the signs at issue, the applicant has not put forward any arguments challenging the Board of Appeal’s assessment set out in paragraphs 45 to 49 above.
54      In the second place, as regards the dominant elements of the signs at issue, it is true, as the applicant argues, that, according to settled case-law, where a sign consists of both figurative and word elements, it does not automatically follow that it is the word element which must always be considered to be dominant. In the case of a composite mark, the figurative element may rank equally with the word element (judgment of 6 October 2015, Monster Energy v OHIM – Balaguer (icexpresso + energy coffee), T‑61/14, not published, EU:T:2015:750, paragraph 37). It is appropriate therefore to examine the intrinsic qualities of the figurative element and the word element of the contested mark, as well as the respective positions of those elements, in order to identify the dominant component (judgment of 16 January 2008, Inter-Ikea v OHIM – Waibel (idea), T‑112/06, not published, EU:T:2008:10, paragraph 49).
55      It is also apparent from the case-law referred to in paragraph 44 above that the weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element and therefore an element which is relevant in assessing the likelihood of confusion. Furthermore, as the Court of Justice has held, the individual assessment of each sign, as required by the settled case-law of the Court of Justice, must be made in the light of the particular circumstances of the case and cannot therefore be regarded as being subject to general presumptions (see judgment of 28 April 2016, B’lue, T‑803/14, not published, EU:T:2016:251, paragraph 36 and the case-law cited).
56      In the present case, the figurative element of the mark applied for is larger than the word element of that mark and is located above it. As regards the word element ‘venilo’, it is written in black and in bold type, as noted in paragraph 40 above. However, that element is, in proportion, less significant and does not seem to be on the same scale as the figurative element.
57      It must therefore be held that, at least for a non-negligible part of the relevant public, the word element of the mark applied for is of secondary importance because, on the one hand, it is in a relatively commonplace font and is smaller than the other element of that mark and, on the other hand, it is positioned below that other element.
58      Moreover, that part of the relevant public may perceive the letter ‘v’ in the figurative element of the mark applied for as the initial letter of the word element ‘venilo’. In that regard, it cannot be ruled out that the addition of that word element may give the impression that it is an extension or variant of the mark consisting of the figurative element.
59      Therefore, contrary to what the Board of Appeal found, the figurative element is more likely to draw the attention of a non-negligible part of the relevant public, which will therefore consider that that element dominates the overall impression created by the mark applied for.
60      It follows from the foregoing that the Board of Appeal’s examination of the dominant elements of the mark applied for is vitiated by an error of assessment as regards a non-negligible part of the relevant public.
–       Visual similarity
61      The Board of Appeal found, in paragraph 72 of the contested decision, that the signs at issue were visually similar to a low degree.
62      The applicant disputes that finding, arguing, in essence, that the only element of the earlier mark and the dominant element of the mark applied for is the letter ‘v’ inside a circle and that that letter cuts through the circle. Consumers would focus on the dominant element of the mark applied for, namely its figurative element. According to the applicant, the earlier mark is included in the mark applied for, since the letter ‘v’ is represented in an almost identical manner. Accordingly, the signs at issue are similar to a high degree.
63      EUIPO disputes those arguments, maintaining that the representation of the letters ‘v’ in the signs at issue differs in several respects, which makes those signs similar only to a low degree.
64      In that regard, it should be noted that it is apparent from the case-law that, where an earlier mark is entirely contained in the mark applied for, that is a factor to be taken into consideration in assessing the similarity between those two marks (see, to that effect, judgment of 20 April 2018, holyGhost v EUIPO – CBM (holyGhost), T‑439/16, not published, EU:T:2018:197, paragraph 33 and the case-law cited).
65      In the present case, as noted in paragraph 59 above, there is a non-negligible part of the relevant public for which the figurative element of the mark applied for dominates the overall impression created by that mark.
66      In the first place, it is common ground that the figurative elements of the signs at issue consist of a representation of the letter ‘v’, written in black and in bold type, placed inside a black circle, that letter cutting through the circle.
67      In the second place, as regards the differences between those figurative elements, it should be noted that, in the earlier mark, the letter ‘v’, the bottom of which is flat, is written in italics, is slightly tilted to the right and its right side intersects with the edge of the circle, whereas the letter ‘v’ in the mark applied for is written in a rounded font, is tilted to the left and is intersected by the circle in the upper left part.
68      However, those differences are minor and are not such as to obscure the visual similarity resulting from the fact that both contain a black letter ‘v’ placed inside and cutting through a black circle. Given that the average consumer must, as a general rule, place his or her trust in the imperfect picture of the marks that he or she has kept in his or her mind (see, to that effect, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26), the visual perception of the signs at issue will not be affected in a sufficiently decisive manner by those visual differences.
69      In the third place, the word element ‘venilo’ in the mark applied for, placed below the figurative element, is not present in the earlier mark. However, as noted in paragraph 57 above, that component, which is relatively commonplace and small in size, is merely secondary for the part of the relevant public which perceives the figurative element as dominant.
70      It follows from all of the foregoing that part of the relevant public could reasonably consider the signs at issue to be visually similar to an average degree. Consequently, the Board of Appeal made an error of assessment in finding that there was a low degree of visual similarity between those signs.
–       Phonetic similarity
71      The Board of Appeal found, in paragraphs 73 to 75 of the contested decision, that the signs at issue were similar to a low degree for the part of the relevant public which would pronounce the letter ‘v’ in the mark applied for. For the part of the relevant public which would perceive the letter ‘v’ as an abbreviation or as the initial letter of the word element ‘venilo’ and, consequently, would not pronounce that letter, the signs at issue are phonetically dissimilar.
72      The applicant argues that the signs at issue are similar, since the letter ‘v’ is pronounced identically.
73      EUIPO submits that that argument is unsubstantiated.
74      In that regard, as is apparent from paragraph 59 above, by failing to examine the possibility that a non-negligible part of the relevant public would perceive the figurative element of the mark applied for as its dominant element, the Board of Appeal made an error of assessment which necessarily affects the reasoning followed by the Board of Appeal in the phonetic comparison of the signs.
75      For that part of the relevant public, the presence of the word element ‘venilo’ in the mark applied for does not counteract the phonetic identity created by the pronunciation of the letter ‘v’ in the figurative elements, because that first element does not play a primary role in that public’s perception.
76      It must therefore be held that, contrary to what the Board of Appeal found, the signs at issue are phonetically similar to an average degree for part of the relevant public.
–       Conceptual similarity
77      The Board of Appeal stated, in essence, that for the part of the relevant public which would associate the letter ‘v’ in the signs at issue with the concept of ‘vaping’, those signs would be conceptually similar to a low degree, in so far as that common element would be distinctive only to a low degree in relation to the goods at issue. For the part of the relevant public which would not perceive any reference to ‘vaping’, the signs at issue would have no meaning and the conceptual comparison would, in essence, be neutral. Moreover, for the part of the relevant public which would perceive, on the one hand, the earlier mark as indicating the nature and characteristics of the great majority of the goods concerned and, on the other hand, the mark applied for as meaningless on account of the distinctive word element ‘venilo’, the signs at issue are not conceptually similar.
78      The applicant claims that a conceptual comparison is not possible, since the signs at issue are meaningless. Moreover, in essence, it criticises the Board of Appeal for failing to substantiate its assertion that the letter ‘v’ could evoke the concept of ‘vaping’, contrary to the findings of the Opposition Division and in breach of the applicant’s right to be heard.
79      EUIPO disputes those arguments.
80      In that regard, in the first place, the applicant cannot criticise the contested decision by claiming that the signs at issue are meaningless and that, therefore, a conceptual comparison is not possible, since that decision contains those same findings in respect of a part of the relevant public.
81      In the second place, as is apparent from paragraph 46 above, it is important to point out that, in paragraph 62 of the contested decision, the Board of Appeal examined the perception of the letter ‘v’ by a part of the relevant public, in relation to the great majority of the goods in Classes 9 and 34, and concluded, correctly, that that public could associate that letter with the term ‘vaping’, which directly describes the nature and characteristics of those goods.
82      In the third place, it is true that the Opposition Division concluded that the letter ‘v’ did not describe the goods at issue or refer to their characteristics and, therefore, that it was distinctive.
83      However, as the Board of Appeal stated in paragraph 62 of the contested decision, many of the examples referred to in the applicant’s statement setting out the grounds of appeal before the Board of Appeal relate to vaping. Therefore, the applicant is not justified in claiming that the Board of Appeal infringed its right to be heard.
84      Moreover, the Board of Appeal was not required to inform the applicant that it was going to adopt a position different from that taken by the Opposition Division concerning the distinctiveness of that letter, and an infringement of the applicant’s right to be heard cannot be found in the present case, contrary to what the applicant claims. The right to be heard extends only to the factual and legal factors on which the decision-making act is based and not to the final position which the Board of Appeal intends to adopt (see, to that effect, judgment of 18 September 2024, Rodríguez Ruiz v EUIPO – Scherer (LEMOON), T‑1099/23, not published, EU:T:2024:630, paragraph 34 and the case-law cited).
85      It follows from the foregoing that, contrary to what the applicant argues, there is no reason to call into question the Board of Appeal’s assessment concerning the conceptual comparison of the signs at issue.
The inherent distinctiveness of the earlier mark
86      The Board of Appeal considered that, as regards the part of the relevant public which would perceive the letter ‘v’ as a descriptive indication of the goods concerned, the earlier mark had a weak inherent distinctive character. As regards the part of the relevant public which would not see any reference to the goods concerned, the Board of Appeal concluded that the distinctive character of the earlier mark was also weak, in the light of the absence of any fanciful stylisation of its figurative element.
87      The applicant states that the Board of Appeal did not substantiate its findings regarding the link between the letter ‘v’ and the English term ‘vaper’ and, therefore, the reference to the goods covered by the earlier mark. According to the applicant, that mark is formed by a letter with a very unusual design, with the result that it has a normal degree of distinctive character.
88      EUIPO disputes the applicant’s arguments.
89      In that regard, in the first place, it should be noted, as stated in paragraph 81 above, that the Board of Appeal explained in the contested decision the reasons why a part of the relevant public might be able to perceive a link between the letter ‘v’ and a large part of the goods covered by the earlier trade mark.
90      In the second place, according to settled case-law, a sign consisting of a single letter has a minimum degree of distinctive character or a weak, or even very weak, distinctive character, where that letter is not stylised or where it is only slightly stylised or where the other figurative elements of the sign in question are not striking (see, to that effect, judgments of 16 December 2015, CareAbout v OHIM – Florido Rodríguez (Kerashot), T‑356/14, not published, EU:T:2015:978, paragraph 44 and the case-law cited, and of 20 July 2017, Diesel v EUIPO – Sprinter megacentros del deporte (Representation of a curved and angled line), T‑521/15, not published, EU:T:2017:536, paragraphs 60 and 61). By contrast, where a sign consists of a highly stylised letter or is accompanied by other relatively elaborate figurative elements, that sign may be recognised as having a normal degree of distinctive character (see, to that effect, judgments of 25 June 2020, Pavel v EUIPO – bugatti (B), T‑114/19, not published, EU:T:2020:286, paragraph 96; of 9 November 2022, L’Oréal v EUIPO – Heinze (K WATER), T‑610/21, not published, EU:T:2022:700, paragraph 56; and of 25 October 2023, Quantic Dream v EUIPO – Quentia (Q), T‑458/21, not published, EU:T:2023:671, paragraph 66).
91      However, the applicant does not explain why a letter placed inside a circle should be considered a ‘very unusual’ design. Neither the black colour used, nor the fact that the letter ‘v’ is in bold nor the circle can be regarded as ‘fanciful features’. The fact that the right side of the letter intersects with the edge of the circle is not sufficient to give the figurative element in question a ‘very unusual’ character.
92      It follows that the Board of Appeal did not make any error of assessment in finding that the earlier mark had a weak inherent distinctive character.
The enhanced distinctiveness, acquired through use, of the earlier mark
93      After examining the various items of evidence produced by the applicant, the Board of Appeal found, in essence, that they did not contain sufficient information to conclude that the earlier mark had acquired enhanced distinctiveness through use.
94      The applicant criticises the Board of Appeal’s assessment and argues that the places and countries in which its products are sold are apparent from the evidence which it produced. Moreover, the V VAPORESSO brand, which contains the same figurative element, has won numerous awards. The applicant also relies on an interview with the chairman of the company which markets the brands containing the word element ‘vaporesso’, in which he provides information on the goods covered by the earlier mark and the other marks which the applicant has registered containing the letter ‘v’, in order to strengthen the protection of that mark. Finally, the applicant submits that it has proven the enhanced distinctiveness of the earlier mark.
95      EUIPO disputes those arguments.
96      According to settled case-law, the existence of a higher than normal level of distinctiveness as a result of the public’s recognition of a mark on the market necessarily presupposes that at least a significant part of the relevant public is familiar with it, but not necessarily that it has a reputation within the meaning of Article 8(5) of Regulation 2017/1001. It is not possible to state in general terms, for example by referring to specific percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has enhanced distinctiveness because of the public’s recognition of it. Nevertheless, it must be acknowledged that there is a certain interdependence between the public’s recognition of a mark and its distinctiveness in that the more the mark is recognised by the target public, the more the distinctiveness of that mark is strengthened. In order to assess whether a mark has enhanced distinctiveness as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of that mark, identifies the goods or services concerned as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see, to that effect, judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT), T‑277/04, EU:T:2006:202, paragraphs 34 and 35 and the case-law cited).
97      Moreover, it should also be recalled that there is no requirement that the evidence submitted in order to prove acquired distinctiveness through use must relate directly to the market share held by the mark at issue or the proportion of the relevant section of the public which identifies the goods or services as originating from a particular undertaking, but it is sufficient for that evidence to enable conclusions to be drawn on that market share or proportion (see, to that effect, judgment of 14 May 2019, Zweirad-Center Stadler v EUIPO – Triumph Designs (Triumph), T‑12/18, not published, EU:T:2019:328, paragraph 62).
98      In that regard, first, the applicant produced an extract from the website ‘vaporesso.com’, which indicates the places where consumers can purchase its products, including Madrid (Spain), Paris (France), Dublin (Ireland), Rome (Italy), Lisbon (Portugal), Warsaw (Poland) and Brussels (Belgium).
99      Secondly, as regards the awards which the earlier mark allegedly won worldwide, it should be noted that it is apparent from Annex II to the applicant’s statement setting out the grounds of appeal before the Board of Appeal that the representation of the mark depicted as the winner of those awards includes the letter ‘v’ as the dominant element and is as follows:
100    The institutions and organisations which conferred those awards include international organisations in the sector, such as Ecigclick, Vapouround and Versed Vaper. The list of awards won includes, in particular, the MUSE Design Award, the German Design Award, the London Design Award and the French Design Award.
101    Thirdly, the applicant submitted an interview with the chairman of the company which markets the brands containing the word element ‘vaporesso’ on the Vapingpost media platform. It is true that that chairman stated that the ‘global sales network me[t] the needs of more than 10 million vapers worldwide’ and that ‘the brand [was] the market leader in countries and regions such as France, Russia, Spain and South America, and rank[ed] among the top three global brands in most regions’. He also referred to the sales figures for certain products covered by the mark.
102    Fourthly, the applicant produced a list of the marks which it has registered worldwide in relation to signs in the shape of a ‘v’.
103    Fifthly, Annex II, which the applicant submitted before EUIPO, contains several images of products on which the earlier mark appears.
104    In the present case, it is true that the evidence which the applicant submitted, referred to in paragraphs 98 to 103 above, is indicative of a certain degree of recognition by the relevant public of the earlier trade mark. However, none of that evidence enables, in accordance with the case-law referred to in paragraph 96 above, conclusions to be drawn on the market share held by the earlier mark or on the proportion of the relevant section of the public which identifies the goods at issue as originating from the applicant.
105    Finally, the evidence submitted by the applicant does not provide any other reliable information on the fact that at least a significant part of the relevant public is familiar with the earlier mark, as required by the case-law cited in paragraph 96 above.
106    In the light of the foregoing, the Board of Appeal was correct in concluding that the evidence adduced by the applicant did not establish that the earlier mark had enhanced distinctiveness in relation to the goods at issue and that the assessment of the likelihood of confusion therefore had to be based on the inherent distinctiveness of that mark.
The global assessment of the likelihood of confusion
107    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, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
108    Moreover, according to settled case-law, although the distinctive character of the earlier mark must be taken into account in assessing the likelihood of confusion, it is nonetheless only one factor among others involved in that assessment. Consequently, even in a case involving an earlier mark with a weak distinctive character, there may be a likelihood of confusion on account, in particular, of a similarity between the marks and between the goods or services covered. Conversely, to give priority to the weak distinctive character of a trade mark in the assessment of the likelihood of confusion would point to the conclusion that, where a mark has only weak distinctive character, there is a likelihood of confusion only where it is reproduced fully by the trade mark in respect of which registration is sought, whatever the degree of similarity between the marks at issue. Such a result would not be consistent with the very nature of the global appreciation which the competent authorities are required to undertake by virtue of Article 8(1)(b) of Regulation 2017/1001 (see judgment of 1 March 2023, Canai Technology v EUIPO – Trend Fin (HE&ME), T‑25/22, not published, EU:T:2023:99, paragraphs 76 and 77 and the case-law cited).
109    In the present case, on the one hand, the Board of Appeal found, in essence, that the similarity between the signs at issue was, at best, low, since the mark applied for contained a distinctive word element and the differences between the representations of the figurative elements would enable the relevant public to distinguish between those signs. In the absence of an enhanced distinctive character of the earlier mark and taking into consideration the heightened level of attention of the relevant public, the striking differences would be perceived by that public. Therefore, although the goods covered by the marks at issue were identical or similar, the Board of Appeal concluded that there was no likelihood of confusion in respect of the goods in Class 34 covered by the mark applied for. Moreover, as regards the services in Classes 35 and 42 covered by the mark applied for, since they were different from the goods covered by the earlier mark, the Board of Appeal found that there cannot be a likelihood of confusion. For the sake of completeness, the Board of Appeal considered that it would have reached the same conclusion even if the services covered by the mark applied for and the goods covered by the earlier mark had been identical.
110    The applicant argues that there is a likelihood of confusion. First, the signs at issue are highly similar, since the mark applied for is included in the earlier mark. Secondly, the earlier mark has enhanced distinctiveness due to its use and reputation. Thirdly, on the one hand, the goods in Class 34 covered by the mark applied for are identical or similar to the goods covered by the earlier mark in Classes 9 and 34. On the other hand, the services covered by the mark applied for in Classes 35 and 42 are complementary to the goods covered by the earlier mark in Class 34. Fourthly, as regards the services in Classes 35 and 42, even a high level of attention is not sufficient to exclude the likelihood of confusion.
111    EUIPO disputes the applicant’s arguments, contending that the complaint which the applicant puts forward relies on the erroneous premiss that the Board of Appeal made a number of errors.
112    In the present case, it follows from the foregoing that, contrary to what the Board of Appeal erroneously concluded, for part of the relevant public, the signs at issue are visually and phonetically similar to an average degree. With regard to conceptual similarity, as is apparent from paragraphs 77 and 85 above, the signs at issue could be similar to a low degree, different or devoid of any conceptual content, depending on the different perceptions of the relevant public.
113    Moreover, as noted in paragraph 21 above, the goods in Class 34 covered by the mark applied for are identical to the goods in the same class covered by the earlier mark. The level of attention of the relevant public with regard to those goods is high, as was stated in paragraphs 18 and 19 above.
114    In those circumstances, it must be held that there is a likelihood of confusion between the signs at issue for the non-negligible part of the relevant public for which the figurative element of the mark applied for dominates the overall impression created by that mark, even though the earlier mark has only a weak distinctive character. For that part of the relevant public, in the light of the identity of the goods at issue in Class 34, the increased similarity of the figurative elements outweighs the differences between the signs at issue and, in particular, the presence of the word element ‘venilo’ in the mark applied for, which plays a secondary role on account of its representation and size. Consequently, as noted in paragraph 58 above, that part of the public will be led to think that those goods have a common origin or that the mark applied for is a variant of the earlier mark.
115    As regards the contested services in Classes 35 and 42 covered by the mark applied for, since the Board of Appeal correctly found that they were dissimilar to the goods covered by the earlier mark, it was therefore correct to conclude, in paragraph 114 of the contested decision, that one of the conditions for the application of Article 8(1)(b) of Regulation 2017/1001 was not met, which made it possible to rule out any likelihood of confusion.
116    It follows from all of the foregoing that the applicant’s first plea must be upheld as regards the goods in Class 34 covered by the mark applied for, which are described in paragraph 3 above, and must be rejected as to the remainder.
The second plea, alleging infringement of Article 94(1) of Regulation 2017/1001
117    The applicant criticises the Board of Appeal for not giving it an opportunity to submit comments before adopting a decision which altered the Opposition Division’s initial assessment as regards the relevant public’s perception of the letter ‘v’ contained in the earlier mark. In particular, the Opposition Division found that that letter did not describe the goods and services in question and did not refer to their characteristics. However, the Board of Appeal subsequently found that a part of the public would perceive that letter as the initial letter of the terms ‘vaping’, ‘vaporizer’, ‘vape’ or ‘vapour’. Moreover, the applicant argues that the Board of Appeal did not state the reasons why it had concluded that part of the relevant public would have such a perception. Finally, the applicant disputes that its observations before EUIPO referred to any perception by part of the relevant public of the letter ‘v’ as the initial letter of the term ‘vaping’.
118    EUIPO disputes the applicant’s arguments.
119    It should be noted that the first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO are to state the reasons on which they are based. That obligation to state reasons has the same scope as that which derives from Article 296 TFEU, pursuant to which the reasoning followed by the author of the act must be disclosed in a clear and unequivocal manner. Its purpose is twofold: first, to enable the persons concerned to ascertain the reasons for the measure adopted in order 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. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for an act meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see order of 12 February 2021, sprd.net/EUIPO – Shirtlabor (I love), T‑19/20, not published, EU:T:2021:89, paragraph 108 and the case-law cited).
120    In the present case, as is apparent from paragraphs 77 to 85 above, the Board of Appeal set out in a clear and unequivocal manner the reasons why part of the relevant public might associate the letter ‘v’ with the term ‘vaping’. That reasoning adopted by the Board of Appeal in the contested decision enabled the applicant to understand the Board of Appeal’s assessment in that decision and to bring the present action challenging its merits, and subsequently enabled the Court to exercise its power of review.
121    The second plea must therefore be rejected as unfounded.
Costs
122    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. Moreover, under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party, the Court is to decide how the costs are to be shared.
123    In the present case, the applicant has claimed that EUIPO and the other party to the proceedings before the Board of Appeal should be ordered to pay the costs.
124    Under Article 173(1) of the Rules of Procedure, the other party to the proceedings before the Board of Appeal may participate, as intervener, in the proceedings before the General Court by responding to the application in the manner and within the time limit prescribed. Thus, if that party has failed to respond to the application in the manner and within the time limit prescribed, it cannot be considered to be a ‘party’ with regard to the proceedings before the Court and cannot therefore, pursuant to Article 134(1) of the Rules of Procedure, be ordered to pay the costs.
125    In the present case, the other party to the proceedings before the Board of Appeal has not become an intervener before the Court. Consequently, the applicant’s claim that that other party should be ordered to pay the costs must be rejected.
126    Since EUIPO and the applicant have each been partially unsuccessful, they should be ordered to bear their own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 15 November 2024 (Case R 247/2024‑4) in so far as it dismissed the appeal against the decision of the Opposition Division of 8 December 2023 relating to EU figurative mark V VENILO as regards the goods in Class 34 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, corresponding to the following description: ‘Electronic cigarettes; liquid solutions for use in electronic cigarettes; liquid nicotine solutions for electronic cigarettes; flavourings, other than essential oils, for tobacco substitutes; flavourings, other than essential oils, for use in electronic cigarettes; cigarette filters; tips of yellow amber for cigar and cigarette holders; articles for use with tobacco; electronic cigarette cases; electronic cigarettes for use as an alternative to traditional cigarettes’;
2.      Dismisses the action as to the remainder;
3.      Orders Shenzen Smoore Technology Ltd and EUIPO to bear their own costs.
Półtorak
Hesse
Petrlík
Delivered in open court in Luxembourg on 11 March 2026.
V. Di Bucci
M.van der Woude
Registrar
President
*      Language of the case: English.