JUDGMENT OF THE GENERAL COURT (Second Chamber)
18 March 2026 (*)
( EU trade mark – Opposition proceedings – Application for the EU word mark AOURA – Earlier EU word mark AURA LOEWE – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Genuine use of the earlier mark – Article 47(2) of Regulation 2017/1001 )
In Case T‑77/25,
Debonair Trading Internacional Lda. (Zona Franca da Madeira), established in Funchal (Portugal), represented by J. Quirin and J.‑P. Jacquey, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Nicolás Gómez, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Loewe SA, established in Madrid (Spain),
THE GENERAL COURT (Second Chamber),
composed, at the time of the deliberations, of A. Marcoulli, President, W. Valasidis (Rapporteur) and L. Spangsberg Grønfeldt, Judges,
Registrar: J. Čuboň, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 October 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, Debonair Trading Internacional Lda. (Zona Franca da Madeira) seeks the annulment of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 November 2024 (Case R 2441/2023‑4) (‘the contested decision’).
I.      Background to the dispute
2        On 26 March 2021, the applicant filed
with EUIPO an application for registration of an EU trade mark in respect of the word sign AOURA.
3        The mark applied for covered goods in Class 3 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: ‘Perfumery; eau de toilette; eau de parfum; body mists; perfumed body spray; body creams; body lotions; body butters; shower gels; bubble bath; bath foam’.
4        On 12 August 2021, Loewe SA filed a notice of opposition to registration of the mark applied for in respect of all the goods referred to in paragraph 3 above.
5        The opposition was based, inter alia, on the earlier EU word mark AURA LOEWE, applied for on 10 September 1996 and registered on 25 February 1999 under number 357 640 covering the goods in Class 3 and corresponding, inter alia, to the following description: ‘Perfumery, cosmetics’.
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        Following a request made by the applicant, EUIPO invited the opponent to furnish proof of genuine use of the earlier mark which had been relied on in support of the opposition. The opponent complied with that request within the time limit set.
8        On 13 October 2023, the Opposition Division, after finding that genuine use of the earlier mark had been proven for ‘perfumery’ goods in Class 3, upheld the opposition in respect of the goods referred to in paragraph 3 above.
9        On 11 December 2023, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
10      By communication of 16 September 2024, the Rapporteur of the Board of Appeal, after informing the applicant and the opponent of his intention to focus on the Spanish- and Italian-speaking public, invited them to submit their observations on how that choice of the relevant public would affect the outcome of the comparison of the signs at issue and the assessment of the likelihood of confusion.
11      On 15 October 2024, the applicant submitted its observations in response to the Rapporteur’s communication.
12      On 7 November 2024, the opponent replied to that communication.
13      By the contested decision, the Board of Appeal dismissed the appeal. First, it found that, considered as a whole, the evidence adduced by the opponent demonstrated genuine use of the earlier mark for ‘perfumery’ goods in Class 3. Second, it found that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
II.    Forms of order sought
14      The applicant claims that the Court should:
–        annul the contested decision;
–        annul all costs orders made by EUIPO against the applicant;
–        order EUIPO to pay the costs, including those incurred in the proceedings before EUIPO.
15      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
III. Law
A.      Admissibility of the applicant’s general reference to its pleadings before EUIPO
16      In paragraph 17 of its application, the applicant refers
to all the arguments it put forward in the proceedings before the Opposition Division and the Board of Appeal
and respectfully invites the Court to refer to the administrative file.
17      EUIPO contends that such a general reference must be rejected as inadmissible.
18      In that regard, it should be recalled that, pursuant to Article 21 of the Statute of the Court of Justice of the European Union and to Article 177(1)(d) of the Rules of Procedure of the General Court, the application must contain a summary of the pleas in law on which it is based. Although specific points in the text of the application can be supported and completed by references to specific passages in the documents annexed to it, a general reference to other documents cannot compensate for a failure to set out the essential elements of the legal argument, which must, under the provisions recalled above, appear in the application itself (see judgment of 8 July 2020, Scorify v EUIPO – Scor(SCORIFY), T‑328/19, not published, EU:T:2020:311, paragraph 20 and the case-law cited). Similarly, it is not for the Court to assume the role of the parties by seeking to identify the relevant material in the documents to which they refer (see judgment of 8 July 2020, SCORIFY, T‑328/19, not published, EU:T:2020:311, paragraph 21 and the case-law cited).
19      In the present case, the applicant does not at any point identify the specific paragraphs of its application that it wishes to supplement by its reference to the arguments which it put forward before EUIPO. Nor does it specify which passages of the observations that it submitted before EUIPO would, in its opinion, be capable of supporting its assertions.
20      It follows that the applicant’s general reference to the arguments submitted in the course of the administrative proceedings before EUIPO must be rejected as being inadmissible.
B.      Substance
21      In support of its action, the applicant relies on two pleas in law, alleging, first, infringement of Article 47 of Regulation 2017/1001 and, second, infringement of Article 8(1)(b) of that regulation.
1.      The first plea in law, alleging infringement of Article 47 of Regulation 2017/1001
22      The first plea in law, by which the applicant disputes the Board of Appeal’s assessment that the evidence adduced by the opponent demonstrated genuine use of the earlier mark in respect of ‘perfumery’ goods in Class 3, comprises two parts. In the first part, the applicant complains that the Board of Appeal took into consideration evidence relating to the use of the earlier mark in a form which altered its distinctive character. In the second part, it submits that the evidence was insufficient to prove genuine use of the earlier mark as registered.
23      EUIPO disputes the applicant’s arguments.
24      Under Article 47(2) of Regulation 2017/1001, if the applicant so requests, the proprietor of an earlier EU trade mark who has given notice of opposition is to furnish proof that, during the five-year period preceding the date of filing or the date of priority of the EU trade mark application, the earlier EU trade mark has been put to genuine use in the European Union in connection with the goods or services in respect of which it is registered and which he or she cites as justification for his or her opposition, or that there are proper reasons for non-use, provided that the earlier EU trade mark has at that date been registered for not less than five years. In the absence of proof to this effect, the opposition is to be rejected.
25      It is apparent from Article 10(3) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001, and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), that the proof of use must establish
the place, time, extent and nature of use of the opposing trade mark for the goods or services in respect of which it is registered and on which the opposition is based.
26      There is genuine use of a trade mark where the mark is used in accordance with its essential function, which is to guarantee the identity of the origin of the goods or services for which it is registered, in order to create or preserve an outlet for those goods or services; genuine use does not include token use for the sole purpose of preserving the rights conferred by the mark (see, by analogy, judgment of 11 March 2003, Ansul, C‑40/01, EU:C:2003:145, paragraph 43).
27      When assessing whether use of the trade mark is genuine, regard must be had to all the facts and circumstances relevant to establishing whether the commercial exploitation of the mark is real, particularly whether such use is viewed as warranted in the economic sector concerned to maintain or create a share in the market for the products or services protected by the mark, the nature of those products or services, the characteristics of the market and the scale and frequency of use of the mark.
To examine whether an earlier trade mark has been put to genuine use, an overall assessment must be carried out, which takes into account all the relevant factors of the particular case (see judgment of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraphs 40 and 42 and the case-law cited).
28      In the present case, it should be noted that the Board of Appeal regarded the period from 26 March 2016 to 25 March 2021 as being the five-year period in respect of which the opponent was required to prove genuine use of the earlier mark. There is no need to call into question that assessment, which, moreover, has not been disputed by the applicant.
29      The applicant’s first plea in law must be examined in the light of those considerations.
(a)    The first part of the first plea in law, alleging use of the earlier mark in a form which altered its distinctive character
30      In the contested decision, the Board of Appeal found that the evidence adduced in relation to the period from 2016 and 2019 was sufficient to establish use of the earlier mark in a form which did not alter its distinctive character. For the sake of completeness, the Board of Appeal added that the variation of the earlier mark used for the goods that were the subject of a rebranding campaign of that mark after 2019 (‘the variation in question’) did not alter its distinctive character. According to the Board of Appeal, the two word elements making up the earlier mark remained present and legible in the variation in question, albeit with a certain difference in positioning and size.
31      The applicant submits that the majority of the evidence adduced by the opponent demonstrates the claimed use of the earlier mark in the variation in question, as reproduced below:
32      The applicant complains that the Board of Appeal erred in law in finding that the variation in question constituted an acceptable variation of the earlier mark. It observes that, in that variation, the word element ‘aura’, written in a much smaller font size than the distinctive word element ‘loewe’ and placed below it, remains imperceptible or, at least, ‘barely perceptible’. In the opponent’s view, the distinctive word element ‘loewe’ attracted more attention from the relevant public. Thus, according to the applicant, the variation in question alters the distinctive character of the earlier mark. Accordingly, the applicant claims that the evidence adduced by the opponent before the Opposition Division concerning the use of that variation, namely Exhibits JA3, JA4 and JA6 to JA9 in Annex 3, together with
Annexes 6 and 8 to 12, must be rejected.
33      EUIPO disputes the applicant’s arguments.
34      According to point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001, proof of genuine use of a trade mark also includes proof of its use in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered.
35      The purpose of point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 is to avoid imposing strict conformity between the form of the trade mark used and the form in which the mark was registered, and to allow its proprietor in the commercial exploitation of the sign to make variations which, without altering its distinctive character, enable it to be better adapted to the marketing and promotion requirements of the goods or services concerned. In such situations, where the sign used in trade differs from the form in which it was registered only in insignificant respects, such that the two signs can therefore be regarded as broadly equivalent, the abovementioned provision envisages that the obligation to use the registered trade mark may be fulfilled by furnishing proof of use of the sign which constitutes the form in which it is used in trade (see, to that effect, judgments of 23 February 2006, Il Ponte Finanziaria v OHIM – Marine Enterprise Projects (BAINBRIDGE), T‑194/03, EU:T:2006:65, paragraph 50, and of 20 July 2017, Cafés Pont v EUIPO – Giordano Vini (Art’s Cafè), T‑309/16, not published, EU:T:2017:535, paragraph 15 and the case-law cited).
36      As a preliminary point, it should be noted that, in order to examine whether there had been genuine use of the earlier mark, the Board of Appeal relied not only on the evidence in which that mark appeared in the variation in question, but also on evidence in which it appeared in its registered form. As the Board of Appeal correctly found in paragraphs 57 and 58 of the contested decision, it is apparent, inter alia, from Annex 7 submitted by the opponent, which contains images of ‘perfumery’ goods dated from the relevant period, and from Annex 10, which contains several invoices drawn up during the years 2016 to 2018 (that is to say, for almost three years during the relevant period) containing the words ‘aura loewe’, that the earlier mark was used in its registered form during the relevant period.
37      As regards the applicant’s argument that the variation in question alters the distinctive character of the earlier mark, it is apparent from the evidence adduced by the opponent in Annexes 3 and 7 to 12 that the earlier mark was used in the variation in question after 2019. In that variation, the graphic representation of the earlier mark consists of the word elements ‘aura’ and ‘loewe’, the first of those elements appearing in smaller font size below the second. It follows that there is a difference in the positioning and font size of those two word elements in the variation in question.
38      In that regard, 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. Accordingly, 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 16 September 2013, Müller-Boré & Partner v OHIM – Popp and Others (MBP), T‑338/09, not published, EU:T:2013:447, paragraph 54 and the case-law cited). Furthermore, according to settled case-law, the specific representation of a word mark is not generally of such a nature as to alter the distinctive character of that mark as registered (see judgments of 23 September 2015, L’Oréal v OHIM – Cosmética Cabinas (AINHOA), T‑426/13, not published, EU:T:2015:669, paragraph 28, and of 10 October 2017, Cofra v EUIPO – Armand Thiery (1841), T‑233/15, not published, EU:T:2017:714, paragraph 75).
39      In the variation in question, the differences in the positioning and size of the word elements are not such as to alter significantly the overall impression created by the earlier mark. The two word elements, ‘aura’ and ‘loewe’, are always present simultaneously and remain clearly legible and identifiable. While it is true that their positioning one above the other is likely to alter their possible order of reading (from ‘aura loewe’ to ‘loewe aura’), such a change remains negligible in the circumstances of the present case and cannot alter the overall perception of that mark by the relevant public.
40      Consequently, it must be held that the variation in question cannot, either by the size of the font or by the order of its word elements, alter the distinctive character of the earlier mark, as registered.
41      Accordingly, the evidence relating to the use of the variation in question, which was criticised by the applicant and referred to in paragraph 32 above, must not be rejected.
42      Contrary to what the applicant claims, the Board of Appeal did not err in finding that the earlier mark was used in a form which did not alter its distinctive character
within the meaning of point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001.
43      In the light of the foregoing, the first part of the first plea in law must be rejected as unfounded.
(b)    The second part of the first plea in law, alleging that the evidence demonstrating genuine use of the earlier mark is insufficient
44      The Board of Appeal, having examined the evidence adduced by the opponent as a whole, concluded, in paragraph 69 of the contested decision, that genuine use of the earlier mark, as registered, had been established for ‘perfumery’ goods in Class 3 for the relevant period.
45      The applicant puts forward specific arguments against the overall assessment of genuine use carried out by the Board of Appeal by referring only to specific evidence adduced by the opponent before the Opposition Division, namely Exhibit JA9 of Annex 3
and certain evidence in Annex 7 and Annex 12.
46      It must be recalled that, according to the case-law, although Article 10(3) of Delegated Regulation 2018/625 states that evidence of use must establish the place, time, extent and nature of the use and paragraph 4 thereof gives examples of acceptable evidence, such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements and statements in writing, that article does not in any way state that each item of evidence must necessarily give information about all four elements to which proof of genuine use must relate, namely the place, time, nature and extent of the use (see judgment of 13 February 2015,
Husky CZ v OHIM – Husky of Tostock (HUSKY), T‑287/13, EU:T:2015:99, paragraph 65 and the case-law cited).
47      An accumulation of items of evidence may allow the necessary facts to be established, even though each of those items of evidence, taken individually, would be insufficient to constitute proof of the accuracy of those facts (see judgment of 13 February 2015, HUSKY, T‑287/13, EU:T:2015:99, paragraph 66 and the case-law cited).
48      In the assessment of the evidence of genuine use of a mark, each piece of evidence is not to be analysed separately, but together, in order to determine the most likely and coherent significance. Thus, even if the probative value of an item of evidence is limited to the extent that, individually, it does not show with certainty whether, and how, the goods concerned were placed on the market, and that item of evidence is therefore not in itself decisive, it may nevertheless be taken into account in the overall assessment as to whether the use of that mark is genuine.
That is the case, for example, when that item of evidence is accompanied by other evidence (see judgment of 30 January 2020, Grupo Textil Brownie v EUIPO – The Guide Association (BROWNIE), T‑598/18, EU:T:2020:22, paragraph 51 and the case-law cited).
49      In the first place, as regards the applicant’s claim that some of the press clippings and some of the social media publications in Exhibit JA9 of
Annex 3 are not legible or are of poor quality, it must be stated, first, that, for part of that evidence, the earlier mark remains perceptible, despite the poor quality of the images, and, second, that the opponent adduced other evidence in which the word elements of the earlier mark are perfectly legible (see, for example, Annex 7 referred to in paragraph 52 of the contested decision).
50      In the second place, as regards the applicant’s argument that some of the evidence adduced by the opponent in Annex 12 and Exhibit JA9 of
Annex 3, including press clippings and extracts from websites, is undated or predates or immediately postdates the beginning of the relevant period, it should be noted that, in accordance with the case-law cited in paragraphs 46 to 48 above, in the context of an overall assessment, the undated material may nevertheless be taken into account in conjunction with other evidence dated from the relevant period, such as extracts from websites showing goods from third-party retailers in Annex 7, the invoices in Annex 10 and the examples of advertising in Annex 12, in order to establish genuine use of the earlier mark.
51      In addition, it is true that some of the press clippings produced by the opponent, in Exhibit JA9 of
Annex 3, dated 2015 or the beginning of 2016, predate the relevant period. However, it must be recalled that proof of use made before or after the relevant period is not, a priori, irrelevant. Indeed, it is clear from the case-law that consideration of such evidence is possible, in so far as it makes it possible to confirm or better assess the extent to which the earlier mark was used and the actual intentions of the proprietor during that period. However, such evidence can be taken into consideration only if other evidence relating to the relevant period has been produced (see judgment of 30 January 2020, BROWNIE, T‑598/18, EU:T:2020:22, paragraph 41 and the case-law cited).
52      That is the case here. As is apparent in particular from paragraphs 47 and 52 of the contested decision, the Board of Appeal relied on the evidence relating to the relevant period in order to establish genuine use of the earlier mark and took into account press clippings prior to that relevant period only in order to support the continuous nature of the use.
53      Accordingly, the Board of Appeal did not err in law when it took into account evidence that did not fall within the relevant period or which was undated.
54      In the third place, while it is true that the origin of some of the evidence adduced by the opponent was not indicated, as the applicant submits, it should nevertheless be noted that that fact cannot call into question the conclusion that that evidence, considered as a whole together with all the other evidence in the file, demonstrated genuine use of the earlier mark for the ‘perfumery’ goods in question.
55      In the fourth and last place, as regards the applicant’s arguments criticising the fact that the Board of Appeal took into account the extracts from the websites set out in Annex 7, it should be noted that, even if it were established, the circumstance
that, in those extracts, certain examples of goods are mentioned as being out of stock or are offered with discounts does not preclude those extracts from being taken into account in the context of an overall assessment.
56      It follows from all of the foregoing that the applicant has not put forward any argument capable of demonstrating that the Board of Appeal erred in its overall assessment that genuine use of the earlier mark had been demonstrated during the relevant period for ‘perfumery’ goods in Class 3.
57      Consequently, the second part of the first plea in law and, accordingly, the first plea in law in its entirety must be rejected.
2.      The second plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
58      The applicant argues that there is no likelihood of confusion on the part of the relevant public. It disputes, in essence, the Board of Appeal’s findings concerning, first, the definition of the relevant public, second, the distinctive and dominant elements of the signs at issue, third, the visual, phonetic and conceptual comparison of those signs and, fourth, the global assessment of the likelihood of confusion.
59      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 trade mark.
60      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 32 and the case-law cited).
61      For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the two marks are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
(a)    The relevant public
62      The Board of Appeal held that the relevant territory was that of the European Union. In addition, the Board of Appeal stated that the goods in question targeted the public at large with an average level of attention.
63      Both the Opposition Division and the Board of Appeal focused their examination on a non-German-speaking public, for which the word element ‘loewe’ of the earlier mark had no meaning. However, while the Opposition Division focused on the English-, Bulgarian- and Czech-speaking public, the Board of Appeal focused its analysis, at the very least, on the Spanish- and Italian-speaking public.
64      The applicant disputes neither the definition of the relevant territory adopted by the Board of Appeal nor the level of attention of the relevant public. By contrast, it criticises the approach adopted by the two adjudicating bodies of EUIPO consisting in focusing on different parts of the non-German-speaking public. According to the applicant, the Board of Appeal arbitrarily and without any justification designated the Spanish- and Italian-speaking public as the relevant public.
65      EUIPO disputes the applicant’s arguments.
66      In the present case, in paragraphs 78 and 79 of the contested decision, the Board of Appeal gave reasons for its decision to focus on a part of the non-German-speaking public, namely the Spanish- and Italian-speaking public, taking into account the fact that the term ‘loewe’ had no meaning for that public.
67      It must be recalled that it suffices, in order for registration of an EU trade mark to be refused, that a relative ground for refusal under Article 8(1)(b) of Regulation 2017/1001 exists only 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). In that regard, it should be stated that, in so far as the Board of Appeal found that there was a likelihood of confusion with regard to part of the non-German-speaking public of the European Union, such a finding, in accordance with that case-law, is sufficient to uphold the opposition.
68      Furthermore, as has been stated in paragraphs 10 to 12 above, and as is apparent from the file relating to the proceedings before EUIPO and from paragraphs 13 to 15, 18 and 19 of the contested decision, it must be noted that the Board of Appeal took account of the observations submitted by the parties during the administrative procedure on its decision to focus on the Spanish- and Italian-speaking public.
69      In those circumstances, there is no reason to call into question the definition of the relevant public adopted by the Board of Appeal.
(b)    Comparison of the goods in question
70      The applicant does not dispute the Board of Appeal’s assessment, in paragraphs 86 and 87 of the contested decision, that the goods referred to in paragraphs 3 and 5 above are identical or similar to an average degree. In any event, there is nothing in the file to call that assessment into question.
(c)    Comparison of the signs
71      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the marks at issue, must be based on the overall impression given by the marks, 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 appreciation 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).
72      In the present case, before addressing the issue of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the Board of Appeal’s assessment of the distinctive and dominant elements of the marks at issue.
(1)    The distinctive and dominant elements of the signs at issue
73      In paragraph 98 of the contested decision, the Board of Appeal found, first of all, that none of the elements of the signs at issue was visually more eye-catching than the others and was therefore not likely to dominate the overall impression created by those signs.
74      With regard to the word element ‘aura’ in the earlier mark, the Board of Appeal found, in paragraph 95 of the contested decision, that it was not descriptive in respect of the ‘perfumery’ goods for the relevant public and that it therefore had distinctive character. According to it, the term ‘aura’ did not have, for that public, any direct connotation to a person’s scent or odour, but was metaphorical in nature, with the result that certain mental steps were necessary in order for a link to be established to those goods. The Board of Appeal added, in paragraph 97 of its decision, that the same considerations also applied to the word element ‘aoura’ of the mark applied for,
at least with regard to a non-negligible part of the Spanish- and Italian-speaking public which could associate it with the meaning of the word ‘aura’. With regard to the word element ‘loewe’ in the earlier mark, the Board of Appeal found, in paragraph 96 of the contested decision, that that element, which is equivalent to the German word ‘löwe’ meaning lion, had no meaning for the Spanish- and Italian-speaking public and that it had distinctive character.
75      The applicant criticises the Board of Appeal for having disregarded the importance of the word element ‘loewe’, which is the distinctive and dominant element of the earlier mark attracting the consumer’s attention. In particular, it emphasises that that element is meaningless in all European languages (except for the reference to the German word ‘löwe’) and therefore has a high or at least average distinctive character.
76      With regard to the word element ‘aura’ of the earlier mark, the applicant claims that it is descriptive and highly allusive to the goods in question, and that it therefore has ‘at most’ a weak distinctive character. Accordingly, it cannot be regarded as capable of attracting the consumer’s attention. In the applicant’s view, in the perfumery sector, the term ‘aura’ would be perceived by the relevant public as being ‘the odour surrounding a person, or the distinctive atmosphere or quality surrounding a person’.
77      In addition, the applicant claims that the word ‘aura’ is commonly used in an allusive manner in the perfumery sector. It adds that the opponent itself refers to that term as being used in a descriptive and allusive manner (see Exhibits JA3 and JA4), such as, for example, in the sentence ‘Discover the new feminine fragrance inspired in the aura that envelop a woman’.
78      With regard to the mark applied for, the applicant submits that the word element ‘aoura’ is an invented word devoid of meaning in all European languages and that it therefore has a high or at least average distinctive character. It criticises, in particular, the Board of Appeal’s statement that at least a non-negligible part of the Spanish- and Italian-speaking public could associate the term ‘aoura’ with the meaning of the term ‘aura’.
79      EUIPO disputes the applicant’s arguments.
80      In that regard, it should be noted that the marks at issue are, on the one hand, the earlier word mark AURA LOEWE, and, on the other hand, the word mark applied for AOURA.
81      In the first place, according to the case‑law, for the purpose of assessing the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings.
In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgments of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35, and of 27 February 2008, Citigroup v OHIM – Link Interchange Network (WORLDLINK), T‑325/04, not published, EU:T:2008:51, paragraph 66).
82      First, with regard to the first element ‘aura’ of the earlier mark, it should be noted, as the Board of Appeal found, that it is apparent from the definitions in the Diccionario de la lengua española de la Real Academia Española (Dictionary of the Spanish Language of the Royal Spanish Academy) and in the Treccani Italian Dictionary, as well as from the evidence adduced by the applicant itself, such as dictionary excerpts in Document AP7 submitted before the Board of Appeal, that this word will be understood by the relevant public as ‘a quality or feeling that seems to surround a person or place or to come from them [and as] a feeling or character that a person … seems to have’, that is to say, in a more figurative than literal sense. Those definitions will not enable the relevant public immediately to perceive, without further thought, a description of the goods in question or one of their characteristics. Accordingly, the word ‘aura’ has, in connection with those goods, a distinctive character for the relevant public. In that regard, the definitions relied on by the applicant in languages other than Spanish or Italian, such as English, cannot be taken into consideration when examining the perception of that public.
83      Furthermore, it must be stated that the applicant has not provided any evidence capable of establishing that the Spanish- and Italian-speaking public are in fact exposed to the use of the term ‘aura’ in signs designating goods in the perfumery sector. In any event, the mere use of that term is not sufficient to establish an allusive meaning. Furthermore, by referring to texts accompanying the goods in question in the context of their promotion, the applicant has not established that the opponent used the element ‘aura’ in an allusive manner.
84      Second, with regard to the second element ‘loewe’ in the earlier mark, it should be noted, as the Board of Appeal found, that it is meaningless for the relevant public, which, moreover, the applicant does not dispute. Accordingly, that term also has distinctive character.
85      Furthermore, as is apparent from the Board of Appeal’s assessments, as summarised in paragraph 74 above, the Board of Appeal did not find that one element of the earlier mark was more distinctive than the other. On the contrary, it found that neither the first word element of that mark nor its second element related to the goods in question, with the result that those two elements have distinctive character.
86      As regards the applicant’s argument that the opponent wished to give greater importance to the element ‘loewe’ by using the variation in question, reproduced in paragraph 31 above, it is sufficient to note that the assessment of the likelihood of confusion is to be carried out by comparing the two signs as they were registered or as they appear in the trade mark application, irrespective of their use. (see judgment of 6 September 2023, Adega Ponte da Boga v EUIPO – Viñedos y Bodegas Dominio de Tares (P3 DOMINIO DE TARES), T‑107/22, not published, EU:T:2023:494, paragraph 80 and the case-law cited). The use which has been made of the earlier mark in the variation in question is therefore irrelevant in the context of the assessment of the distinctive character of the elements making up that mark, with the result that that argument must be rejected as ineffective.
87      Third, as regards the word element ‘aoura’ in the mark applied for, it must be stated that it is meaningless in itself for the relevant public. However, taking into account the fact that part of the relevant public is likely to associate it with the meaning of the term ‘aura’, from which the word element ‘aoura’ differs only in the letter ‘o’, the arguments set out in paragraphs 82 and 83 above also apply to that element. It follows that the verbal element ‘aoura’ has distinctive character.
88      In the second place, with regard to possible dominant elements of the marks at issue, it must be stated that the Board of Appeal was right in finding, in paragraph 98 of the contested decision, that no word element was capable of dominating the overall impression created by those marks. In that regard, it should be noted that the applicant does not put forward any argument capable of establishing that the word element ‘loewe’ in the earlier mark constitutes a dominant element to the point of attracting the relevant public’s attention more than the other element ‘aura’ of that mark. Similarly, the single word ‘aoura’ of which the mark applied for consists does not have any element capable of dominating the overall impression created by that mark.
89      In the light of the foregoing, the applicant’s arguments seeking to call into question the Board of Appeal’s assessment of the distinctive and dominant elements of the marks at issue must be rejected.
(2)    Visual comparison
90      In paragraph 100 of the contested decision, the Board of Appeal found that the signs at issue were visually similar to a below-average degree. In its view, the only word element ‘aoura’ of the mark applied for was almost entirely reproduced in the first distinctive word element ‘aura’ of the earlier mark. Those signs differed, however, in the addition of the second letter ‘o’ of the word element of the mark applied for and in the second element ‘loewe’ of the earlier mark.
91      The applicant criticises the Board of Appeal for finding that the signs at issue were visually similar. In that regard, it emphasises the differences relating to (i) the number of words in those signs, namely two words in the earlier mark and one word in the mark applied for, (ii) the additional and visually striking letter ‘o’ in the mark applied for, and (iii) the presence of the second element ‘loewe’ in the earlier mark. In the applicant’s view, the latter will not be overlooked by the consumer, since it has a high degree of distinctiveness and is longer than the first element ‘aura’, which is weakly distinctive. The applicant also relies on the way in which the mark is used in the variation in question, reproduced in paragraph 31 above.
92      EUIPO disputes the applicant’s arguments.
93      As a preliminary point, it should be noted that the applicant’s arguments regarding the visual similarity of the marks at issue are based to a large extent on the premiss that the element ‘aura’ of the earlier mark allegedly has a low degree of distinctiveness and the element ‘loewe’ of that mark is particularly distinctive and dominant. As stated in paragraphs 81 to 85 and 88 above, that premiss is incorrect. Therefore, the applicant’s arguments based on that premiss must be rejected.
94      In the present case, the Board of Appeal correctly established the elements of similarity between the signs at issue. First, the terms ‘aura’ and ‘aoura’ coincide in almost all the letters, with the exception of the second letter ‘o’ of the word ‘aoura’, which is barely visually perceptible. Second, the letters which coincide appear in the same order in the two signs, which is of some importance in the assessment of the visual similarities between those signs (see, to that effect, judgment of 8 September 2021, Cara Therapeutics v EUIPO – Gebro Holding (KORSUVA), T‑584/20, not published, EU:T:2021:541, paragraph 27 and the case-law cited).
95      The Board of Appeal also correctly noted that the marks at issue differed in that the earlier mark contained a second word element and that those differences were not sufficient to offset the similarities found in paragraph 94 above. It was precisely because of those differences that the Board of Appeal concluded that there was a below-average degree of visual similarity.
96      Lastly, as regards the argument alleging use of the earlier mark in the variation in question, reproduced in paragraph 31 above, it is sufficient to point out that the comparison of signs must be carried out on the basis of the way in which the signs are registered. That argument must therefore be rejected as ineffective.
97      It follows that the Board of Appeal was right in finding that the signs at issue were visually similar to a below-average degree.
(3)    Phonetic comparison
98      In paragraph 103 of the contested decision, the Board of Appeal found that the signs at issue were phonetically similar to an average degree. In order to reach that conclusion, it emphasised the strong phonetic similarity between those signs resulting from the distinctive element ‘aura’, which was reproduced almost entirely in the mark applied for. The Board of Appeal took account of the coincidence in the sound of the letters ‘a’, ‘u’, ‘r’ and ‘a’ in the signs at issue and of the differences arising, first, from the sound of the word ‘loewe’ in the earlier mark and, second, from the letter ‘o’ in the mark applied for, the pronunciation of which would, however, be hardly noticed by the relevant public.
99      The applicant disputes those findings of the Board of Appeal. It claims that the signs at issue are phonetically different. In its view, the earlier mark has a total of five syllables, namely the two syllables of the word element ‘aura’ and the three syllables of the word element ‘loewe’, whereas the mark applied for has only three. Accordingly, it submits that the signs at issue coincide only in the syllable ‘ra’ in the element ‘aoura’ and in the element ‘aura’ and that they differ in the pronunciation of the other syllables. Moreover, it submits that the combination of the letters ‘o’ and ‘u’ (‘ou’) in the mark applied for significantly changes the pronunciation of that mark.
100    EUIPO disputes the applicant’s arguments.
101    In the present case, it must be held that, in view of their constituent elements, the earlier mark will be pronounced ‘a-u-ra – lo-e-we’ and the mark applied for ‘a-ou-ra’.
102    Admittedly, the signs at issue differ in the number of syllables. However, in that regard, it must be recalled that the fact that the number of syllables is different is not in itself sufficient to preclude from the outset the existence of a similarity between the signs, since that similarity must be assessed on the basis of the overall impression created by their full pronunciation (see judgment of 29 February 2012, Azienda Agricola Colsaliz di Faganello Antonio v OHIM – Weinkellerei Lenz Moser (SERVO SUO), T‑525/10, not published, EU:T:2012:96, paragraph 51 and the case-law cited).
103    Moreover, it must be recalled that, for the Spanish- and Italian-speaking public, the signs at issue coincide in the pronunciation of the letters ‘a’, ‘u’, ‘r’ and ‘a’, which constitute the essential part of the sole word element of the mark applied for and the entirety of the first element of the earlier mark. Such a circumstance is, in itself, capable of creating a phonetic similarity between the marks at issue.
104    Furthermore, the applicant did not, either in its written pleadings or at the hearing, provide specific explanations as to how the pronunciation of the word ‘aoura’ differs considerably from that of the word ‘aura’ in the relevant languages, namely in Spanish or Italian, but merely claimed that the combination of the letters ‘o’ and ‘u’ would be pronounced as ‘ou’ in French. Accordingly, it must be concluded that the pronunciation of the additional letter ‘o’ does not sufficiently distinguish, phonetically, between the two words ‘aoura’ and ‘aura’.
105    It follows that the dissimilarity between the marks at issue relied on by the applicant, resulting from the presence of the word element ‘loewe’ in the earlier mark, is not sufficient to remove, phonetically, the similarity found between the first element of the earlier mark and the sole word element making up the mark applied for.
106    Accordingly, the Board of Appeal was right in concluding that the signs at issue were phonetically similar to an average degree.
(4)    Conceptual comparison
107    The Board of Appeal found, in paragraph 104 of the contested decision, that the signs at issue were conceptually similar to an average degree, in so far as a non-negligible part of the Spanish- and Italian-speaking public associated the term ‘aoura’ of the mark applied for with the meaning of the term ‘aura’ of the earlier mark. It stated, however, that the term ‘aoura’ was inherently meaningless and, therefore, that, for a part of that public, those signs were not conceptually similar.
108    The applicant claims that the signs at issue are conceptually different. As regards the meaning of the term ‘aura’ of the earlier mark, the applicant repeats its arguments set out in paragraph 76 above, relying on the same evidence. With regard to the word ‘aoura’ in the mark applied for, the applicant takes the view that it is invented and meaningless in all European languages. Accordingly, it complains that the Board of Appeal found that that word would be associated by the Spanish- and Italian-speaking public with the meaning of the word ‘aura’ of the earlier mark. In the applicant’s view, where only one of two signs conveys a concept, the signs are conceptually different. It adds that the Board of Appeal underestimated the difference resulting from the presence of the word ‘loewe’ in the earlier mark, which is also meaningless for the Spanish- and Italian-speaking public.
109    EUIPO disputes the applicant’s arguments.
110    First of all, it must be pointed out that the applicant’s arguments relating to the conceptual difference between the signs at issue are based on the incorrect premiss that the element ‘aura’ of the earlier mark has a low degree of distinctiveness and that the element ‘loewe’ of that mark is particularly distinctive and dominant. Those arguments must be rejected for the same reasons as those set out in paragraphs 81 to 85 and 88 above.
111    Next, it must be recalled, on the one hand, that the relevant public will perceive the meaning of the word element ‘aura’ of the earlier mark as a quality or feeling surrounding a person (see paragraph 82 above). On the other, the word element ‘loewe’ in that mark is meaningless for that public (see paragraph 84 above).
112    Furthermore, while it is true that the term ‘aoura’ of the mark applied for is meaningless per se for the relevant public, as the Board of Appeal correctly found, it cannot be excluded that a non-negligible part of that public may associate that term with the word ‘aura’ of the earlier mark, given the mere addition of the letter ‘o’, which remains barely perceptible. For that part of the relevant public, those two terms are conceptually similar (see, to that effect, judgment of 10 March 2021, Hauz 1929 v EUIPO – Houzz (HAUZ EST 1929), T‑68/20, not published, EU:T:2021:127, paragraph 43).
113    Furthermore, taking into account the fact that the word element ‘loewe’ in the earlier mark is meaningless for the relevant public, it must be held that, contrary to what the applicant claims, that element has no bearing on the conceptual comparison.
114    In the light of those factors, the Board of Appeal was entitled to conclude that the signs at issue were likely to have an average degree of conceptual similarity for a non-negligible part of the Spanish- and Italian-speaking public. Consequently, the applicant has not established that the signs at issue are conceptually different for the relevant public in its entirety.
(d)    Likelihood of confusion
115    The Board of Appeal concluded, in paragraphs 111 to 113 of the contested decision, that, in view of
the identity or similarity to an average degree of the goods at issue, the below-average degree of visual similarity and the average degree of phonetic and conceptual similarity between the signs at issue, at least for a part of the Spanish- and Italian-speaking public in the European Union, and the average inherent distinctive character of the earlier mark, there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, on the part of the relevant public with an average level of attention.
116    The applicant complains that the Board of Appeal did not carry out a global assessment of the likelihood of confusion between the signs at issue taking into account all the relevant factors. In essence, it reproduces the considerations summarised in paragraphs 75 to 78, 91, 99 and 108 above with regard to the distinctive and dominant elements of the marks at issue and the visual, phonetic and conceptual differences between those marks respectively, in order to rule out the existence of a likelihood of confusion.
117    EUIPO disputes the applicant’s arguments.
118    According to settled case-law, the 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 the similarity of the goods or services concerned. 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).
119    In the present case, in view of the average level of attention of the relevant public, the identity or similarity to an average degree of the goods at issue, the lower than average degree of visual similarity, the average degree of phonetic similarity, and the average degree of conceptual similarity of the signs at issue, at least for a non-negligible part of the relevant public, the Board of Appeal was entitled to conclude, also taking into consideration the average distinctive character of the earlier mark, that there was a likelihood of confusion between the signs at issue for that public. In the light of those factors, the risk that that public might be led to believe that the goods in question come from the same undertaking or from economically linked undertakings cannot be ruled out.
120    With regard to the applicant’s arguments based on the decision of the United Kingdom Intellectual Property Office of 13 January 2022, it must be recalled that the EU trade mark regime is an autonomous system with its own set of objectives and rules peculiar to it; it applies independently of any national system. Accordingly, EUIPO and, if appropriate, the Courts of the European Union are not bound by a decision given in a Member State, or indeed a third country, that the sign in question is registrable as a national mark (judgment of 27 February 2002, Streamserve v OHIM (STREAMSERVE), T‑106/00, EU:T:2002:43, paragraph 47).
121    With regard to the arguments based on previous decisions of EUIPO, it must be recalled that EUIPO is required to decide 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 (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).
122    Lastly, as regards the applicant’s argument that there was no adequate and convincing statement of reasons, it is sufficient to note, as is apparent from the reasoning followed in the contested decision, summarised in paragraph 115 above, concerning the global assessment of the likelihood of confusion, that the Board of Appeal set out in a clear and unequivocal manner the essential reasons why it considered that Article 8(1)(b) of Regulation 2017/1001 precluded, in the present case, registration of the mark applied for in respect of the goods concerned.
123    In those circumstances and in the absence of any argument capable of calling into question the Board of Appeal’s global assessment, it must be concluded that the Board of Appeal was entitled to find that there was a likelihood of confusion between the signs at issue.
124    In the light of the foregoing, the second plea in law must be rejected as unfounded and, consequently, the action must be dismissed in its entirety.
IV.    Costs
125    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
126    Since a hearing has taken place and 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 (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Debonair Trading Internacional Lda. (Zona Franca da Madeira) to bear the costs.
Marcoulli
Valasidis
Spangsberg Grønfeldt
Delivered in open court in Luxembourg on 18 March 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.