JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
27 April 2022 (*)
(EU trade mark – Invalidity proceedings – EU figurative mark SmartThinQ – Earlier national figurative mark SMARTTHING – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – Translation of the list of goods covered by the earlier mark into the language of the proceedings – Genuine use of the earlier mark)
In Case T‑181/21,
LG Electronics, Inc., established in Seoul (South Korea), represented by M. Graf, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by M. Capostagno, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Anferlux-Electrodomésticos, Lda, established in Vila Nova de Monsarros (Portugal),
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 3 February 2021 (Case R 1657/2020-4), relating to invalidity proceedings between Anferlux-Electrodomésticos and LG Electronics,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur) and R. Norkus, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 7 April 2021,
having regard to the response of EUIPO lodged at the Court Registry on 8 July 2021,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
Background to the dispute
1        On 8 January 2016, the applicant, LG Electronics, Inc., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO), claiming the priority arising from Korean trade mark application No 40-2015-0079083, as of 27 October 2015.
2        Registration as a mark was sought for the following figurative sign:
3        The goods in respect of which registration was sought are in, inter alia, Classes 7 and 11 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description:
–        Class 7: ‘washing machines; dishwashers; vacuum cleaners’;
–        Class 11: ‘gas grills; dish disinfectant apparatus for household purposes; non-electric water purifiers for household purposes; non-electric water purifier filters for household purposes; gas ranges; electric cooktops: hot air apparatus; solar water heaters; water heaters; air conditioners; refrigerating apparatus and machines; cooling apparatus; air conditioning apparatus; air conditioning installations; solar thermal collectors (heating); cycle lights; automobile lights; reflectors for automobiles: lamps for directional signals of automobiles; light bulbs for directional signals of automobiles; anti-dazzle devices for automobiles (lamp fittings); defrosters for automobiles; air conditioners for automobiles; headlights for automobiles; ventilation (air-conditioning) installations and apparatus for automobiles; heaters for automobiles; air purifying apparatus; non electric water ionizer for household purposes; electric ionizer; water purifying apparatus; water purification installations; water purifying apparatus and machines; micro filter for water treatment; desalination plants; purification installations for sewage; waste water filters; water purifier for commercial purpose; parts of filter for water purifying apparatus; membranes for filter out the sewage; lighting apparatus and installations; electric refrigerators; kimchi refrigerators; light wave ovens; electric wine cellar for household purposes; ovens; electric freezers for household purposes; laundry drying machines; microwave ovens; electric ranges; electric humidifiers; electric dehumidifiers for household purposes; electric foot warmers; water purifiers for household purposes’.
4        The application for registration was published on 1 February 2016 and the mark was registered on 22 May 2018 under the number 14983861.
5        On 18 March 2019, the other party before the Board of Appeal, Anferlux-Electrodomésticos, Lda, filed an application for a declaration that that mark was invalid in respect of all of the goods referred to in paragraph 3 above pursuant to Article 60(1)(a) 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), in conjunction with Article 8(1)(a) and (b) of that regulation.
6        The application for a declaration of invalidity was based on Portuguese trade mark No 386597, which was applied for on 14 January 2005, was registered on 9 December 2005 and is reproduced below:
7        The description of the goods covered by the mark relied on in support of the application for a declaration for invalidity appeared in an extract from EUIPO’s database TMview which was attached as an annex to the application form for a declaration of invalidity. That description was worded in the language of the country in which that mark was registered, namely Portuguese, and was translated into English, the language of the proceedings, in the following terms: ‘vacuum cleaners, tumble dryers and washing machines’ in Class 7 and ‘stoves (except stoves for experiments), refrigerators, stoves, refrigerators, combined and desumifiers’ in Class 11.
8        On 16 July 2019, the applicant requested proof of use of the earlier mark.
9        On 4 December 2019, within the time limit set by EUIPO, the other party before the Board of Appeal submitted evidence of use of the earlier mark.
10      By decision of 11 June 2020, the Cancellation Division partially upheld the application for a declaration of invalidity. More specifically, it found that genuine use of the earlier mark had been proved in connection with ‘stoves (except stoves for experiments), refrigerators, portable stoves, refrigerators incorporating a freezer’ in Class 11 and that there was a likelihood of confusion with regard to the following goods covered by the contested mark:
–        Class 7: ‘washing machines; dishwashers; vacuum cleaners’;
–        Class 11: ‘gas grills; dish disinfectant apparatus for household purposes; gas ranges; electric cooktops: hot air apparatus; air conditioners; refrigerating apparatus and machines; cooling apparatus; air conditioning apparatus; air conditioning installations; electric refrigerators; kimchi refrigerators; light wave ovens; electric wine cellar for household purposes; ovens; electric freezers for household purposes; laundry drying machines; microwave ovens; electric ranges’.
11      The Cancellation Division rejected the application for a declaration of invalidity as to the remainder.
12      On 10 August 2020, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 68 of Regulation 2017/1001, seeking the annulment of the decision of the Cancellation Division in so far as it had upheld the application for a declaration of invalidity.
13      By decision of 3 February 2021 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal as unfounded.
14      In particular, the Board of Appeal found, like the Cancellation Division, that genuine use of the earlier mark had been proved only in connection with ‘stoves (except stoves for experiments), refrigerators, portable stoves, refrigerators incorporating a freezer’ in Class 11. As regards the likelihood of confusion, it found that Portugal was the relevant territory and agreed with the Cancellation Division’s comparison of the goods, which the applicant had not called into question. Next, after comparing the signs at issue, it found that ‘taking into account the visual similarity to an average degree, the aural similarity to a high degree and the normal inherent distinctiveness of the earlier mark as a whole’, there was a likelihood of confusion with regard to all the goods that were the subject of the appeal before EUIPO.
Forms of order sought
15      The applicant claims that the Court should:
–        annul the contested decision in so far as it upheld the application for a declaration of invalidity;
–        order EUIPO to pay the costs.
16      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
17      Given the date on which the application for registration at issue was filed, namely 8 January 2016, which is decisive for the purposes of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1) (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited), in the version prior to amendment by Regulation (EU) 2015/2424 of the European Parliament and of the Council of 16 December 2015 amending Regulation No 207/2009 and Commission Regulation (EC) No 2868/95 implementing Council Regulation (EC) No 40/94 on the Community trade mark, and repealing Commission Regulation (EC) No 2869/95 on the fees payable to the Office for Harmonization in the Internal Market (Trade Marks and Designs) (OJ 2015 L 341, p. 21).
18      Moreover, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the case is governed by the procedural provisions of Regulation 2017/1001 and, in particular, by those 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).
19      Consequently, in the present case, so far as concerns the substantive rules, the references made by the Board of Appeal in the contested decision and by the parties to the proceedings in their written pleadings to Article 60(1)(a) and to Article 8(1)(b) of Regulation 2017/1001 must be understood as referring to Article 53(1)(a) and Article 8(1)(b) of Regulation No 207/2009, the wording of which is substantively identical. Furthermore, the references made by the Board of Appeal in the contested decision and by the applicant in its application to point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001 must be understood as referring to point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009, the wording of which is admittedly slightly different, although that does not have any bearing in the present case.
20      The applicant puts forward four pleas in law in support of the action.
21      It submits in essence that the Board of Appeal infringed, first, the principles of equality of arms and of neutrality, secondly, Article 17(3) of Delegated Regulation 2018/625, thirdly, the provisions which are applicable to the assessment of whether there has been genuine use of the earlier mark and, fourthly, Article 8(1)(b) of Regulation No 207/2009.
22      It is appropriate to deal with the first and second pleas together and then to examine the third and fourth pleas in turn.
The first plea, alleging infringement of the principles of equality of arms and of neutrality, and the second plea, alleging infringement of Article 17(3) of Delegated Regulation 2018/625
23      The first plea is subdivided into two parts, one of which is based on the principle of equality of arms and the other of which is based on the principle of neutrality.
24      In support of the first part, the applicant submits that the Board of Appeal should have found that the incorrect translation into English, the language of the proceedings, of the list of goods which had been relied on in support of the application for a declaration of invalidity rendered that application for a declaration of invalidity inadmissible.
25      The applicant observes that, according to Article 16(2) of Delegated Regulation 2018/625, evidence concerning the registration of the earlier trade mark is to be filed in the language of the proceedings, that is to say, in the present case, English, or is to be accompanied by a translation into that language. According to the applicant, the translation requirement is based on the principle of equality of arms, since both parties have to have the same knowledge about the goods covered by the earlier right. It submits that the extract from the TMview database which the other party before the Board of Appeal submitted in order to prove the registration of the earlier mark contains a list of the goods covered which is drafted in Portuguese and is accompanied by an unofficial and incorrect translation of that list into English, a translation which does not satisfy the legal requirements. It states that the same incorrect translation appears in the application form for a declaration of invalidity. It contends that that infringement of the translation requirement gives rise to an infringement of the principle of equality of arms between the parties, which the Board of Appeal erred in not penalising.
26      By the second part of the first plea, the applicant complains that the Board of Appeal accepted that the Cancellation Division had itself corrected the incorrect English translation of the list of goods covered by the earlier mark. The applicant submits that, in making that correction, the Cancellation Division helped the applicant for a declaration of invalidity to satisfy its translation requirement and therefore infringed the principle of neutrality. It contends that the Board of Appeal not only tolerated such unequal treatment, but also based its assessment on that new English translation of that list.
27      As regards the second plea, the applicant alleges infringement of Article 17(3) of Delegated Regulation 2018/625, which provides that, where the applicant for a declaration of invalidity has not submitted the facts, arguments or evidence required to substantiate its application, the application is to be rejected as unfounded. The applicant submits that that provision was not complied with, on account of the submission of an incorrect translation into English of the list of goods covered by the earlier mark, which was corrected by the Cancellation Division and confirmed by the Board of Appeal.
28      EUIPO disputes all of the arguments relating to the first and second pleas, taking the view that those pleas are inadmissible, ineffective and unfounded.
29      It must be pointed out that the contested decision does not address the issue of the translation into the language of the proceedings of the list of goods which are covered by the earlier mark and were relied on in support of the application for a declaration of invalidity. Furthermore, the applicant did not, before the Cancellation Division or the Board of Appeal, put forward any argument regarding that translation.
30      In paragraph 2 of the contested decision, which was drafted in the language of the proceedings and therefore in English, the Board of Appeal first of all reproduced the translation into that language of the list of goods which had been relied on in the application for a declaration of invalidity. That translation from Portuguese into English appeared in the extract from the TMview database which was attached as an annex to the application for a declaration of invalidity and was, as regards the goods in Class 11, worded as follows: ‘stoves (except stoves for experiments), refrigerators, stoves, refrigerators, combined and desumifiers’.
31      Next, in paragraphs 30, 48 and 50 of the contested decision, in the context of the assessment of the use of the earlier mark, and in paragraph 53 of that decision, which concerns the comparison of the relevant goods in the context of the assessment of the existence of a likelihood of confusion, the Board of Appeal referred to the allegedly corrected translation of the list of goods in Class 11 covered by the earlier mark, a translation which was worded as follows: ‘stoves (except stoves for experiments), refrigerators, portable stoves, refrigerators incorporating a freezer’.
32      It must be borne in mind that an extract from the TMview database constitutes a document equivalent to a copy of the certificate of registration of the mark, provided that it contains all the relevant information. Furthermore, in the event that the list of goods or services as it appears in the extract from the TMview database is not available in the language of the proceedings, that list must be accompanied by a translation into that language (see, to that effect, judgment of 6 December 2018, Deichmann v EUIPO – Vans (V), T‑848/16, EU:T:2018:884, paragraphs 61 and 69).
33      In the present case, in order to prove the registration of the earlier Portuguese trade mark, the other party before the Board of Appeal provided an extract from the TMview database, an extract which contained a translation into the language of the proceedings of the list of goods on which it was relying in support of its application for a declaration of invalidity.
34      It is apparent from the file relating to the proceedings before EUIPO that the Cancellation Division relied on a translation which was, in part, different from the list of goods in Class 11 which had been relied on in support of the application for a declaration of invalidity. That list in the language of the proceedings, which was, according to the translation appearing in the extract from the TMview database which was annexed to the application for a declaration of invalidity, ‘stoves (except stoves for experiments), refrigerators, stoves, refrigerators, combined and desumifiers’, became, in the context of the Cancellation Division’s assessments, ‘stoves (except stoves for experiments), refrigerators, portable stoves, refrigerators incorporating a freezer’.
35      In that regard, it must be pointed out that, when the Board of Appeal confirms a lower-level decision of EUIPO in its entirety, as is the case here, that decision, together with its statement of reasons, forms part of the context in which the Board of Appeal’s decision was adopted, which is known to the parties and enables the Court to carry out fully its judicial review as to whether the Board of Appeal’s assessment was well founded (see judgment of 24 September 2008, HUP Uslugi Polska v OHIM – Manpower (I.T.@MANPOWER), T‑248/05, not published, EU:T:2008:396, paragraph 48 and the case-law cited).
36      In the present case, first, it is apparent from paragraphs 30, 48 and 50 of the contested decision that the Board of Appeal endorsed the translation which the Cancellation Division had relied on and that it expressly confirmed the Cancellation Division’s assessments as regards the genuine use of the earlier mark.
37      In particular, in its decision of 11 June 2020, the Cancellation Division had found that genuine use had been proved in connection with a number of goods, including ‘stoves (except stoves for experiments)’ and ‘refrigerators’, that is to say, goods with regard to which the description on which that division relied in the language of the proceedings is identical to that which appears in the extract from the TMview database which the other party before the Board of Appeal had submitted in support of its application for a declaration of invalidity.
38      From among the descriptions of the goods on which the Cancellation Division relied and which differ partially from those which appear in that extract, namely ‘portable stoves, freezers, refrigerators incorporating a freezer’, the Cancellation Division found that the earlier mark had been put to genuine use in connection with ‘portable stoves’ and ‘refrigerators incorporating a freezer’.
39      Secondly, in paragraphs 53 and 54 of the contested decision, in the context of the assessment of the likelihood of confusion, the Board of Appeal expressly confirmed the Cancellation Division’s assessments relating to the comparison of the goods at issue, relying, as regards the goods covered by the earlier mark, inter alia on those with regard to which the description relied on by that division was identical to that which appeared in the extract from the TMview database which the other party before the Board of Appeal had submitted in support of its application for a declaration of invalidity. Furthermore, it is apparent from the Cancellation Division’s decision of 11 June 2020 that that division found that the goods covered by the contested mark which have been referred to in paragraph 10 above were identical or similar to the goods in Class 11 covered by the earlier mark by referring mainly to those latter goods as ‘stoves’ or ‘refrigerators’. Consequently, the partially different translation of the description of some of the other goods covered by the earlier mark to which the Board of Appeal referred in the contested decision cannot have affected the comparison of the goods at issue on which the contested decision is based.
40      In any event, it must be pointed out that ‘portable stoves’ do not have a purpose which is fundamentally different from that of ‘stoves (except stoves for experiments)’. The former, like the latter, are used to cook foodstuffs. Likewise, ‘refrigerators incorporating a freezer’ do not have a purpose which is fundamentally different from that of ‘refrigerators’ because the former, like the latter, are used to preserve foodstuffs by means of refrigeration.
41      Consequently, in both cases, what are involved are a general type of goods (‘stoves (except stoves for experiments)’ and ‘refrigerators’) and a more specific type of goods (‘portable stoves’ and ‘refrigerators incorporating a freezer’).
42      It is not therefore necessary to establish whether errors made in the translation of the list of goods in Class 11 which were relied on in support of the application for a declaration of invalidity resulted in an infringement of the principles of equality of arms and of neutrality or an infringement of Article 17(3) of Delegated Regulation 2018/625.
43      The first and second pleas must thus be rejected as ineffective, without it being necessary to rule on their admissibility or their merits.
The third plea, alleging infringement of the provisions applicable to the assessment of whether there has been genuine use of the earlier mark
44      By its third plea, the applicant claims that the Board of Appeal erred in finding that the other party before it had put the earlier mark to genuine use in connection with some of the goods which had been relied on in support of the application for a declaration of invalidity.
45      First, the applicant submits that the problem of translation which has been relied on in the context of the first and second pleas makes it unclear whether the Board of Appeal was itself able to understand the list of those goods, which had been drawn up in Portuguese, or whether it relied on the translation which had been corrected by the Cancellation Division without verifying its correctness.
46      Secondly, the applicant contends that the Board of Appeal erred in finding that the documents which had been submitted before EUIPO showed genuine use of the earlier mark in connection with ‘stoves (except stoves for experiments), refrigerators, portable stoves, refrigerators incorporating a freezer’ in Class 11.
47      First, the applicant observes that the earlier mark was initially filed as a word mark, which consisted solely of the element ‘smartthing’, and was then transformed into a figurative mark during the registration procedure. According to the applicant, the word element in the earlier mark refers to a characteristic of the goods at issue, because all the goods can be ‘smart’, something which the relevant public, namely the Portuguese public, easily understands. It submits that, consequently, the earlier mark is descriptive and cannot therefore have been put to use as a trade mark.
48      Secondly, the applicant acknowledges that the Board of Appeal was right in finding that the other party before it had to prove genuine use of the earlier mark in Portugal during the five-year period preceding the priority date of the contested mark, namely from 27 October 2010 to 26 October 2015 (‘the first relevant period’), and during the five-year period preceding the filing date of the application for a declaration of invalidity, that is to say, from 18 March 2014 to 17 March 2019 (‘the second relevant period’). By contrast, the applicant submits that the evidence provided in respect of the first relevant period did not support the conclusion that the earlier mark had been put to genuine use in connection with ‘stoves (except stoves for experiments), portable stoves’ or ‘refrigerators, refrigerators incorporating a freezer’. Furthermore, it contends that the amounts and quantities on the invoices which fall within the two relevant periods show a low turnover for goods marketed in the household appliances sector, which does not serve to prove genuine use. It argues that the Board of Appeal also took into account invoices which are not relevant, because they postdate the second relevant period.
49      Thirdly and lastly, the applicant relies on point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009, according to which use of the trade mark in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered must also be taken into account for the purposes of proving genuine use of a trade mark. According to the applicant, the Board of Appeal infringed that provision by finding that the absence of the figurative element in the earlier mark on the invoices did not deprive those invoices of relevance with regard to the assessment of whether there had been genuine use of that mark.
50      EUIPO disputes the applicant’s arguments.
51      As regards first of all the applicant’s claim regarding the incorrect translation of some of the goods in Class 11 covered by the earlier mark which were relied on in support of the application for a declaration of invalidity, it follows from the examination of the first and second pleas that that claim is ineffective. In any event, the descriptions relied on by EUIPO, in the language of the proceedings, of the goods consisting of ‘stoves (except stoves for experiments)’ and ‘refrigerators’, were identical to those which appeared in the extract from the TMview database which the other party before the Board of Appeal had submitted in support of its application for a declaration of invalidity and the Board of Appeal found that genuine use of the earlier mark had been proved in connection with those general types of goods.
52      As for the applicant’s argument that it was only during the registration procedure that the earlier mark became figurative, it is sufficient to state, as did the Board of Appeal, that the Portuguese certificate of registration of the earlier mark, the validity of which has not been disputed by any of the parties to the proceedings before EUIPO, relates to a figurative mark, and not a word mark.
53      Furthermore, the alleged descriptiveness of the word element ‘smartthing’ is not relevant when determining whether the earlier mark has been put to genuine use. That argument will be examined below in the context of the assessment of the likelihood of confusion.
54      As regards next the properly so-called evidence of genuine use of the earlier mark, it must be borne in mind that Article 10(3) and (4) of Delegated Regulation 2018/625 provides that the proof of use of a mark must concern the place, time, extent and nature of use of that mark and is, in principle, to be limited to the submission of supporting documents and items such as packages, labels, price lists, catalogues, invoices, photographs, newspaper advertisements, and statements in writing as referred to in Article 97(1)(f) of Regulation 2017/1001.
55      In interpreting the concept of genuine use, account should be taken of the fact that the purpose of the relevant applicable provisions is not to assess commercial success or to review the economic strategy of an undertaking, nor is it to restrict trade mark protection to the case where large-scale commercial use has been made of the marks (see judgments of 8 July 2004, MFE Marienfelde v OHIM – Vétoquinol (HIPOVITON), T‑334/01, EU:T:2004:223, paragraph 32 and the case-law cited, and of 27 September 2007, La Mer Technology v OHIM – Laboratoires Goëmar (LA MER), T‑418/03, not published, EU:T:2007:299, paragraph 53 and the case-law cited).
56      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. In addition, the condition relating to genuine use of the trade mark requires that the mark, as protected on the relevant territory, be used publicly and outwardly (see judgment of 4 April 2019, Hesse and Wedl & Hofmann v EUIPO (TESTA ROSSA), T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 29 and the case-law cited).
57      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 use of the mark is real, particularly the practices regarded as warranted in the relevant economic sector as a means of maintaining or creating market shares for the goods or services protected by the mark, the nature of those goods or services, the characteristics of the market and the scale and frequency of use of the mark (see judgment of 4 April 2019, TESTA ROSSA, T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 30 and the case-law cited).
58      Furthermore, genuine use of a trade mark cannot be proved by means of probabilities or suppositions, but must be demonstrated by solid and objective evidence of actual and sufficient use of the trade mark on the market concerned. It is therefore necessary to carry out an overall assessment which takes into account all the relevant factors of the particular case and entails a degree of interdependence between the factors taken into account (see judgment of 4 April 2019, TESTA ROSSA, T‑910/16 and T‑911/16, EU:T:2019:221, paragraph 31 and the case-law cited).
59      It is in the light of the foregoing considerations that the Board of Appeal’s assessment as regards whether there had been genuine use of the earlier mark must be examined.
60      For the purposes of that assessment, the Board of Appeal relied on the following items of evidence:
–        58 invoices drawn up in Portuguese by the other party before the Board of Appeal in respect of sales in Portugal in the months from June 2011 to October 2019, which give details including the date, invoice number, the client and the goods sold under the name ‘smartthing’ with their code, their price and the number of units, and are accompanied by partial English translations as regards the goods sold, such as microwaves, refrigerators and stoves;
–        six pages reproducing undated photographs showing packaging and goods which bear the earlier mark in which the figurative element of that mark is, however, situated on the left-hand side of the word element ‘smartthing’, whereas, in the registered version of that mark, the figurative element of the mark is situated above the word element;
–        12 pages of undated extracts from catalogues in Portuguese showing goods, inter alia stoves and refrigerators, which bear the version of the earlier mark which contains the figurative element on the left-hand side of the word element.
The time of use of the earlier mark
61      As acknowledged by the applicant, the other party before the Board of Appeal had to prove genuine use of the earlier mark during the first relevant period and during the second relevant period, in accordance with Article 57(2) of Regulation No 207/2009, in conjunction with Article 42(2) of that regulation (now Article 64(2) and Article 47(2) of Regulation 2017/1001 respectively).
62      The Board of Appeal found that a significant proportion of the invoices submitted fell within the relevant periods and that, according to the case-law, the invoices which postdated those periods could also be taken into consideration in order to confirm or better assess the extent to which the earlier mark was used and the real intentions of the proprietor of that mark during those periods.
63      It is apparent from Article 15(1) of Regulation No 207/2009 (now Article 18(1) of Regulation 2017/1001) that it is sufficient that a trade mark has been put to genuine use during a part of the relevant period (see, to that effect, judgments of 8 July 2004, Sunrider v OHIM – Espadafor Caba (VITAFRUIT), T‑203/02, EU:T:2004:225, paragraph 45, and of 8 July 2010, Engelhorn v OHIM – The Outdoor Group (peerstorm), T‑30/09, EU:T:2010:298, paragraph 33).
64      Furthermore, as stated by the Board of Appeal, it is not precluded, in assessing the genuineness of use during the relevant periods, that account be taken, where appropriate, of any circumstances subsequent to those periods. Such circumstances may make it possible to confirm or better assess the extent to which the trade mark was used during the relevant periods (order of 27 January 2004, La Mer Technology, C‑259/02, EU:C:2004:50, paragraph 31; see, also, judgment of 23 September 2020, Polfarmex v EUIPO – Kaminski (SYRENA), T‑677/19, not published, EU:T:2020:424, paragraph 98 and the case-law cited).
65      In view of the considerations set out in the preceding two paragraphs and in the light of the evidence examined by the Board of Appeal, there is no reason to call into question the Board of Appeal’s assessment regarding the time of use of the earlier mark.
The place of use
66      As pointed out by the Board of Appeal, the earlier mark is a Portuguese trade mark. In accordance with Article 42(3) of Regulation No 207/2009 (now Article 47(3) of Regulation 2017/1001), the relevant territory for the purposes of the assessment as to whether the use of that mark was genuine is therefore Portugal, a point which the applicant does not dispute.
67      In that regard, the Board of Appeal did not err in deducing that use had taken place in the relevant territory from the fact that the invoices submitted as evidence were addressed to customers established in Portugal and from the fact that all the invoices and the extracts from catalogues submitted by the other party before it were in Portuguese.
The extent of use
68      The Board of Appeal found that a sufficient number of invoices showed sales under the name ‘smartthing’, relating to, inter alia, ‘stoves (except stoves for experiments)’ and to ‘refrigerators’, and that it was clear that the invoices referred to the goods sold under the earlier mark. It also observed that, thanks to the codes assigned to the products, the products referred to on the invoices could be linked to those which appeared in the catalogues under the earlier mark, which proved that the products had been marketed and that the earlier mark was used publicly and outwardly.
69      Furthermore, according to the Board of Appeal, although the number of goods and the volumes referred to in the invoices were not very high, the numbers of units of different varieties of products sold were typical for orders of domestic electrical appliances, were significant as a whole and covered the relevant periods. The Board of Appeal took the view that, in the context of a global assessment of whether the use to which the earlier mark had been put was genuine, those factors supported the conclusion that the extent of that use was sufficient.
70      It must be stated that, even if the examination of the evidence is confined to ‘stoves (except stoves for experiments)’ and to ‘refrigerators’, and thus to the general types of goods in respect of which the description in the language of the proceedings in the application for a declaration of invalidity had not been altered by the Cancellation Division, the Board of Appeal’s assessment as regards the extent of use of the earlier mark is correct.
71      None of the applicant’s arguments can call that assessment into question.
72      First, as regards the arguments that the evidence provided in respect of the first relevant period did not support the conclusion that the earlier mark had been put to genuine use in connection with the goods at issue, it must be pointed out that the applicant distinguishes between ‘stoves’ and ‘refrigerators’.
73      As regards stoves, the applicant observes that only nine invoices were submitted in connection with the first relevant period and that only three of those invoices could refer to different kinds of stoves. It adds that the other items of evidence relating to the first relevant period do not prove that the goods concerned bore the earlier mark. For example, it observes that some of the photographs show microwave ovens, which are irrelevant in the present case. Furthermore, it submits that the turnovers and the quantities sold are too low to be taken into account. In addition, it contends that the stoves with regard to which the entry ‘bonus’ and a price of zero euros appear cannot be taken into consideration. Lastly, it submits that there is no evidence relating to portable stoves with regard to the first relevant period.
74      As regards refrigerators, the applicant states that, of the nine invoices put forward in connection with the first relevant period, seven mention refrigerators, corresponding to three different models, but that the other evidence relating to that period contains only one photograph depicting a refrigerator door that bears a sign containing the word element ‘smartthing’. It contends that it has not therefore been proved that the earlier mark appeared on the doors of the three models of refrigerator to which those invoices related. According to the applicant, the Board of Appeal relied on mere suppositions in order to determine that there had been genuine use of the earlier mark in connection with refrigerators during the first relevant period. Moreover, it submits that the Board of Appeal mixed up evidence relating to the second relevant period and that relating to the first relevant period.
75      It must be stated that the evidence provided with regard to the first relevant period includes one invoice relating to a stove, two invoices relating to portable stoves and seven invoices relating to refrigerators. It also includes photographs of packaging for stoves, portable stoves and refrigerators and photographs of a refrigerator and a stove. The packaging or the goods in those photographs bear a sign consisting of the word element ‘smartthing’ with the figurative element of the earlier mark on its left-hand side. Other photographs show microwave ovens which also bear a similar sign.
76      Even if the references relating to microwave ovens on the invoices and the photographs showing such ovens, which the applicant regards as irrelevant goods, are disregarded, the references relating to stoves, whether or not those stoves are portable, and to refrigerators, whether or not those refrigerators incorporate freezers, which appear on the invoices and photographs submitted as evidence relating to the first relevant period constitute solid and objective evidence which must be taken into account in the context of the overall assessment of all the relevant factors of the particular case which must be carried out, in accordance with the case-law referred to in paragraph 58 above. That evidence makes it possible to establish that, during the first relevant period, the earlier mark was actually used in connection with ‘stoves (except stoves for experiments)’, with which it is possible to link ‘portable stoves’, which constitute a specific type of stoves, and in connection with ‘refrigerators’, whether or not those refrigerators incorporate a freezer (see paragraphs 40 and 41 above).
77      In that regard, it must be stated that the goods which have the entry ‘bonus’ and a price of zero euros are not irrelevant (see, to that effect and by analogy, judgment of 9 December 2008, Verein Radetzky-Orden, C‑442/07, EU:C:2008:696, paragraphs 16 to 21).
78      Furthermore, as is observed by EUIPO, the numbers and dates of the invoices show continuity of use, even though, for the period from 2010 to 2015, the extent of that use appears to be more limited.
79      In addition, as regards refrigerators, the applicant does not establish that it was necessary to prove that the earlier mark appeared on the doors of the three models of refrigerator referred to in the invoices. It was sufficient for it to be proved that the earlier mark was actually used on refrigerators, which, in the light of all the evidence submitted with regard to the first relevant period, is the case here.
80      It can also not be validly maintained that the Board of Appeal mixed up evidence relating to the second relevant period and that relating to the first relevant period. It is apparent from the contested decision, in particular from a combined reading of paragraphs 6, 7, 26 and 36 of that decision, that the Board of Appeal verified that there had been genuine use with regard to both relevant periods.
81      Consequently, in the light of the overall assessment, which takes into account all the relevant factors of the particular case and entails a degree of interdependence between those factors, and which must be carried out as regards the question of whether there has been genuine use of the earlier mark, in accordance with the case-law which has been referred to in paragraph 58 above, the applicant’s arguments relating to the first relevant period cannot succeed.
82      Secondly, as regards the applicant’s argument that the turnover and the quantities mentioned on the invoices, with regard to the two relevant periods, are too low for it to be held that genuine use has been proved, it must first of all be stated that the purpose of the requirement for such use is not to restrict trade mark protection to the case where large-scale commercial use has been made of the marks, as is apparent from the case-law which has been referred to in paragraph 55 above.
83      In the present case, the evidence which the other party before the Board of Appeal submitted includes a total of 58 invoices, 11 of which relate to the first relevant period and 47 of which relate to the second relevant period. Most of those invoices mention stoves, whether or not they are portable, or refrigerators, whether or not they incorporate freezers. Thanks to the codes mentioned on the invoices, some of those goods can be linked to the extracts from catalogues which were also submitted as evidence.
84      As was the case with regard to the first relevant period, the numbers and dates of the invoices show continuity of use for the second relevant period.
85      In any event, the items of evidence of use, taken as a whole, prove that the earlier mark has not been put to merely token use. Consequently, the Board of Appeal’s findings in that regard must be upheld and the applicant’s argument alleging that the turnover and quantities are insufficient must be rejected.
86      Thirdly, the applicant claims that the Board of Appeal took into consideration invoices which are irrelevant, because they do not relate to the two relevant periods. That argument on the part of the applicant must also be rejected, because it is apparent from the contested decision and the evidence submitted to the Board of Appeal that the Board of Appeal merely applied settled case-law by taking into account invoices which postdated the second relevant period and dated from 2019 in order to confirm its assessment of the evidence relating to the relevant periods (order of 27 January 2004, La Mer Technology, C‑259/02, EU:C:2004:50, paragraph 31; see, also, judgments of 23 September 2020, SYRENA, T‑677/19, not published, EU:T:2020:424, paragraph 98 and the case-law cited, and of 10 November 2021, AC Milan v EUIPO – InterES (ACM 1899 AC MILAN), T‑353/20, not published, EU:T:2021:773, paragraphs 36 and 37 and the case-law cited).
The nature of use
87      According to the Board of Appeal, the evidence submitted before EUIPO showed that the earlier mark had been used on packaging and goods, with the figurative element, however, situated on the left-hand side of the word element and not above it, and that that word element had been used on its own on the invoices. It found that, in those forms, the distinctive character of the earlier mark had not been altered and that that mark had been used in accordance with its function.
88      It must be borne in mind that, first, point (a) of the second subparagraph of Article 15(1) of Regulation No 207/2009 (now point (a) of the second subparagraph of Article 18(1) of Regulation 2017/1001) provides that use of an EU trade mark in a form differing in elements which do not alter the distinctive character of that mark in the form in which it was registered also constitutes use within the meaning of the first subparagraph of Article 15(1) of that regulation.
89      Secondly, the purpose of that provision, which avoids imposing strict conformity between the form of the EU trade mark as used and the form in which that mark was registered, is 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 accordance with its purpose, the material scope of that provision must be regarded as limited to situations in which the sign actually used by the proprietor of a trade mark to identify the goods or services in respect of which the mark was registered constitutes the form in which that same mark is commercially exploited. In such situations, where the sign used in trade differs from the form in which it was registered only in negligible elements, with the result that the two signs can 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 judgment of 23 October 2017, Galletas Gullón v EUIPO – O2 Holdings (Shape of a packet of biscuits), T‑404/16, not published, EU:T:2017:745, paragraph 27 and the case-law cited).
90      In the light of that case-law, the Board of Appeal was right in finding that the distinctive character of the earlier mark could not be regarded as having been altered on the sole ground that the figurative element of that mark was situated on the left-hand side of the word element of that mark on the packaging and goods, whereas in the registered form of that mark, the figurative element was above the word element.
91      As regards the fact that only the word element of the earlier mark appears on the invoices, the Board of Appeal was right in finding that it was common commercial practice that such documents did not contain graphical elements of the trade marks and that the identification of the goods was limited to verbal indications. As it correctly stated, it sufficed that the whole mark, with its figurative element and its word element, appeared on the packaging and goods and that, with the aid of the codes appearing on the invoices, it was possible to link those invoices to that packaging and those goods.
92      It follows from all of the foregoing considerations, including those regarding the ineffectiveness of the first and second pleas, that the Board of Appeal did not err in finding that genuine use of the earlier mark had been proved in connection with ‘stoves (except stoves for experiments)’ and ‘refrigerators’. The third plea must therefore be rejected.
The fourth plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009
93      By the fourth plea, the applicant first of all submits that the incorrect translation into English of the list of goods relied on in support of the application for a declaration of invalidity precluded an exact comparison with the goods covered by the contested mark.
94      So far as concerns the distinctive character of the elements of which the earlier mark consists, the applicant submits that the figurative element is dominant and that the word element ‘smartthing’ is descriptive. As regards the comparison of the marks at issue, the applicant contends that those marks coincide at most only in that non-distinctive word element. It argues that the signs which constitute the marks at issue differ visually and are phonetically similar to a very low degree. Furthermore, it submits that the conceptual differences between them neutralise any similarity. It contends that the signs are therefore dissimilar overall.
95      As regards the global assessment of the likelihood of confusion, the applicant refers to the case-law which states that, if the goods at issue are usually sold in self-service stores where consumers choose the goods themselves and must therefore rely primarily on the image of the trade mark applied to those goods, the visual similarity between the signs will, as a general rule, be more important. The applicant takes the view that that case-law applies to refrigerators and stoves which are, according to the applicant, sold in electronics stores and online and are not therefore ordered orally, but in the context of a longer selection process. It submits that, taking into account the high level of attention of the relevant public, the greater importance of the visual dissimilarity, the neutralisation of the very low degree of phonetic similarity by the conceptual differences, and the descriptiveness of the word element ‘smartthing’ in the earlier mark, there is no likelihood of confusion.
96      EUIPO disputes the applicant’s arguments.
97      Under Article 53(1)(a) and Article 8(1)(b) of Regulation No 207/2009, an EU trade mark is to be declared invalid 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.
98      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
99      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. These conditions are cumulative (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). Furthermore, a low degree of similarity between the goods or services covered may be offset by a high degree of similarity between the marks, and vice versa (judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
100    It is in the light of those considerations that it must be assessed whether the Board of Appeal was right in finding that there was a likelihood of confusion in the present case.
The relevant public
101    According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
102    The Board of Appeal found that, since the earlier mark was a Portuguese national mark, the relevant territory was that of Portugal, a finding which is not, moreover, disputed by the applicant.
103    As regards the relevant public, the Board of Appeal stated that it consisted of the general public, the level of attention of which ranged from average, for example with regard to portable stoves, to high, for example with regard to refrigerators.
104    The applicant submits that the general public’s level of attention is high with regard to large household appliances, such as stoves and refrigerators, because the average consumer keeps those goods for a number of years and they are relatively expensive.
105    In that regard, it is sufficient to state that, in the contested decision, the Board of Appeal correctly pointed out that, even in the case of a public displaying a high level of attention, as was the case with regard to some of the goods in question, the average consumer only rarely has a chance to compare the various marks directly and must therefore rely on his or her imperfect recollection of them (judgment of 19 May 2021, Yongkang Kugooo Technology v EUIPO – Ford Motor Company (kugoo), T‑324/20, not published, EU:T:2021:280, paragraph 75). In the light of that case-law, even if, as the applicant submits, the average consumer had a high level of attention as regards the goods at issue which are large, that consideration would not cast doubt on the contested decision because, in that decision, the Board of Appeal took a high level of attention with regard to such goods into consideration.
The comparison of the goods
106    It must be borne in mind that the Board of Appeal confirmed the Cancellation Division’s assessment that some of the goods covered by the contested mark were identical or similar to the goods covered by the earlier mark with regard to which it had been found that genuine use of that mark had been proved.
107    The applicant has not put forward any argument which is capable of casting doubt on that finding.
108    In accordance with the considerations set out above regarding the first and second pleas, it is necessary to reject at the outset as ineffective the applicant’s argument that the incorrect translation into English of the list of goods relied on in support of the application for a declaration of invalidity precludes an exact comparison of those goods with the goods covered by the contested mark.
109    Accordingly, even if the comparison of the goods is confined to ‘stoves (except stoves for experiments)’ and ‘refrigerators’, that is to say, to the goods in respect of which the description on which EUIPO relied in the language of the proceedings is identical to that which appears in the extract from the TMview database which the other party before the Board of Appeal submitted in support of its application for a declaration of invalidity, the Board of Appeal did not err in finding that the goods covered by the contested mark which were at issue before it were identical or similar to the goods covered by the earlier mark.
The comparison of the signs
110    The Board of Appeal compared the following signs:
Contested mark
Earlier mark
–       The distinctive and dominant elements of the signs at issue
111    The Board of Appeal found that part of the Portuguese public would understand the English term ‘smart’, which is present in both marks, as having the meaning of ‘operating as if by human intelligence by using automatic computer control relating to any technological feature over and above the traditional features of products’. As regards the English word ‘thing’, which is present in the earlier mark, it found that that word meant ‘any object or concept, tangible or not’. It took the view that the combination of words ‘smart thing’ in relation to household appliances, such as refrigerators, could be understood as referring to electronic goods connected to other devices or networks through different wireless protocols that could operate interactively and autonomously. It found that therefore, for the part of the public which understood those terms, the distinctiveness of those terms was lower than average.
112    According to the Board of Appeal, the figurative element in the earlier mark had no obvious connection with the goods in question or with the word ‘smartthing’ and served mainly as an additional and separate decorative element. It found that it was therefore distinctive to an average degree.
113    Furthermore, as regards the contested mark, the Board of Appeal found that the word element ‘thinq’ had no meaning for the Portuguese public in relation to the relevant goods. It added that, taking into account the relevant goods, which were household appliances, the figurative element representing a house was weakly distinctive.
114    The applicant disputes the Board of Appeal’s analysis as regards the components of the earlier mark. It submits that the figurative element in that mark is dominant and the word element ‘smartthing’ is descriptive and therefore non-distinctive. It argues that the descriptiveness of the word element in the earlier mark is borne out by the fact that the application for registration initially related to a word mark, which was transformed into a figurative mark during the registration procedure.
115    In that regard, it must be pointed out, first, that the assessment of the distinctive character of the earlier mark must be carried out in relation to the figurative mark as registered.
116    Secondly, to accept that the word element in the earlier mark is descriptive, as the Board of Appeal did to a certain extent with regard to the part of the relevant Portuguese public which would be in a position to understand the terms ‘smart’ and ‘thing’, does not mean that there is no longer any need to take that element into consideration when comparing the contested mark with the earlier mark. On the contrary, the comparison must be made by examining each of the signs at issue 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. 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 (see judgment of 6 October 2021, Guo v EUIPO – Sand Cph (sandriver), T‑505/20, not published, EU:T:2021:655, paragraph 43 and the case-law cited). However, that is not the case here, with the result that the assessment of the similarity between the contested mark and the earlier mark cannot be carried out solely on the basis of the figurative element in the earlier mark, even assuming that it is dominant.
117    Furthermore, it must be pointed out that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by citing their name than by describing the figurative element of the trade mark (see judgment of 5 May 2021, Grangé and Van Strydonck v EUIPO – Nema (âme), T‑442/20, not published, EU:T:2021:237, paragraph 38 and the case-law cited).
118    It follows from the foregoing that the Board of Appeal did not err in taking each of the signs at issue as a whole into consideration for the purposes of comparing those signs.
–       The visual comparison of the signs
119    From a visual standpoint, the Board of Appeal found that the signs at issue coincided in their word elements, except for the last letters in those elements. It took the view that the differences relating to the fonts used in order to represent those word elements and the differences relating to their respective figurative elements were only slight and were not sufficient in themselves to counteract the impression of similarity between the signs.
120    The arguments which the applicant has put forward regarding the visual comparison of the marks at issue seek to emphasise the importance of the figurative element in the earlier mark as compared with the word element in that mark, which the applicant regards as negligible on account of its descriptiveness and ancillary nature. The applicant claims that the marks at issue differ not only in the stylisation of their figurative and word elements, but also in their structure, and that the letters which coincide cannot outweigh those differences.
121    The argument relating to the importance of the figurative element in the earlier mark and the alleged descriptiveness of the word element in that mark must be rejected on the same grounds as those set out in paragraphs 116 to 118 above.
122    In the present case, the differences between the marks at issue which the applicant points out do not overshadow the elements which make them visually similar, in particular the fact that the word elements in those marks are, except as regards the last letter, identical and that they are at least as important in the overall impression created by each of the signs at issue as the figurative elements in those marks.
123    The Board of Appeal did not therefore err in finding that the signs at issue were visually similar to an average degree.
–       The phonetic comparison of the signs
124    From a phonetic standpoint, the Board of Appeal found that the signs at issue were pronounced in a highly similar way, on the ground that they had in common the sound of all the letters in their word elements except for the last letters, ‘q’ and ‘g’ respectively, which were also pronounced in a very similar way.
125    The applicant submits that the distinctive and dominant element in the earlier mark is the figurative element, which can be read as the number ‘69’, with three syllables, and which is dissimilar to the two syllables in the word element of the contested mark. It argues that elements which have a secondary function, such as the element ‘smartthing’ in the earlier mark, which it refers to as ‘subtitle-like’, will not be pronounced, since the relevant public tends to neglect ancillary elements in composite signs. It contends that, even if part of the relevant public pronounced the sequence of letters ‘s’, ‘m’, ‘a’, ‘r’, ‘t’, ‘t’, ‘h’, ‘i’, ‘n’, ‘g’ in the earlier mark, the degree of phonetic similarity would be, at most, very low.
126    It must be stated that, as was the case with regard to the visual comparison of the marks at issue, the applicant errs in seeking to submit that the figurative element of the earlier mark outweighs the allegedly descriptive word element of that mark. Its arguments relating to the phonetic comparison must in that regard be rejected on grounds analogous to those which have been set out above in relation to the visual comparison. Furthermore, the applicant does not explain why the relevant public will pronounce the figurative element in the earlier mark as the number ‘69’. In any event, it is just as likely that that element will, as the Board of Appeal found, simply be perceived as an additional and separate decorative element, which will not therefore be pronounced and is thus irrelevant for the purposes of the phonetic comparison of the marks at issue (see, to that effect, judgment of 26 January 2016, LR Health & Beauty Systems v OHIM – Robert McBride (LR nova pure.), T‑202/14, not published, EU:T:2016:28, paragraphs 77 and 78 and the case-law cited).
127    Consequently, there is no reason to call into question the Board of Appeal’s assessment that the marks at issue are highly similar phonetically.
–       The conceptual comparison of the signs
128    From a conceptual standpoint, the Board of Appeal distinguished between the part of the relevant Portuguese public which would attribute a meaning to the word elements of the signs at issue and that which would not attribute any meaning to them. With regard to the first part of that public, it found that the marks would be conceptually similar to at least a below-average degree. With regard to the part of that public which would not attribute any meaning to those word elements, and also with regard to the figurative elements, it found that a conceptual comparison was not possible and did not influence the assessment of the similarity of the signs.
129    The applicant submits that the present case is one in which the applicable case-law is that according to which a lack of conceptual similarity may on its own make it possible to conclude that the signs are dissimilar. According to the applicant, the contested mark refers to the concept of ‘smart thinking’. It argues that, by contrast, the earlier mark evokes the number ‘69’ and the idea of a ‘smart thing’. It submits that the signs are therefore conceptually dissimilar, which neutralises any visual and phonetic similarity. It contends that the signs are therefore ultimately dissimilar.
130    However, the applicant’s argument is not convincing. First, it must be pointed out, as is observed by EUIPO, that the conceptual comparison is neutral for the part of the relevant public which is not able to understand the meaning of the English terms comprising the word elements of the marks at issue. Secondly, it must be stated, as is pointed out by EUIPO, that there is a conceptual similarity between those marks for the part of that public which will understand those terms. The word ‘smart’ is identical in both marks and, as the Board of Appeal found, refers to certain technological features of the goods (see paragraph 111 above). As for the sequence of letters ‘t’, ‘h’, ‘i’, ‘n’, ‘q’ in the contested mark, it must be stated that it strongly resembles the word ‘thing’ in the earlier mark, which means, as the Board of Appeal corrected pointed out, ‘any object or concept, tangible or not’.
131    It follows that, for the part of the relevant public which will attribute a meaning to the word elements of the marks at issue, there is some conceptual similarity between those marks, which rules out the application of the case-law on which the applicant relies, according to which a lack of conceptual similarity may on its own make it possible to conclude that the signs are dissimilar.
132    The applicant’s argument that the contested mark refers to the concept of ‘smart thinking’, whereas the figurative element of the earlier mark evokes the number ‘69’ and the word element of that mark evokes the idea of a ‘smart thing’, must also be rejected. That argument disregards the fact, which has been pointed out above, that the sequence of letters ‘t’, ‘h’, ‘i’, ‘n’, ‘q’ in the contested mark and the word ‘thing’ in the earlier mark resemble each other to the point where the former could easily be equated with the latter by the part of the relevant public which will attribute a meaning to those elements. Furthermore, as has been held above regarding the phonetic comparison, that public will not necessarily perceive the figurative element of the earlier mark as the number ‘69’, but might equally perceive it as a purely figurative element and therefore, contrary to what the applicant submits, as not having any conceptual content.
133    Consequently, there is no reason to call into question the Board of Appeal’s assessment that the conceptual comparison of the signs at issue either leads to the finding that there is at least a below-average degree of similarity between them or is not possible.
The global assessment of the likelihood of confusion
134    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).
135    In the present case, it is apparent from paragraphs 74 to 82 of the contested decision that, after taking into account all the relevant factors, the Board of Appeal found that there was a likelihood of confusion.
136    In the light of all of the foregoing considerations, that finding is correct and the applicant’s arguments in that regard cannot cast doubt on it.
137    First, the applicant submits that, even if it were to be accepted that there is a certain degree of similarity between the signs at issue, the Board of Appeal erred in not taking into account the greater weight of the visual comparison of those signs, which is the result of the conditions under which the goods at issue are marketed.
138    In that regard, it must be noted that that allegedly greater weight of the visual comparison of the signs at issue is not capable of calling into question the fact that those signs must each be assessed as a whole and that, in that context, the differences between them do not take precedence over the elements of similarity between them. Furthermore, the applicant’s argument is, in any event, based on the premiss that the signs at issue are visually dissimilar. However, that premiss is, in the light of the finding made in paragraph 123 above, incorrect. Consequently, the greater weight of the visual comparison, which is relied on by the applicant, cannot cast doubt on the Board of Appeal’s finding that there is a likelihood of confusion.
139    Secondly, as regards the applicant’s argument that the Board of Appeal erred in finding that the average consumer’s level of attention varied from average to high, it must be pointed out that a high level of attention on the part of the relevant public with regard to the goods at issue which are large cannot, in the light, first, of the fact that the Board of Appeal took into account a high level of attention with regard to such goods (see paragraphs 103 to 105 above) and in the light, secondly, of the visual, phonetic and conceptual similarities between those marks and the similarity, or even identity, between the goods at issue, cast doubt on the Board of Appeal’s finding that there is a likelihood of confusion in the present case.
140    Consequently, the fourth plea must also be rejected and the action must therefore be dismissed in its entirety.
Costs
141    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.
142    Since the applicant has been unsuccessful in the present case, it must be ordered to bear its own costs and to pay those incurred by EUIPO, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders LG Electronics, Inc., to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO).
Marcoulli
Frimodt Nielsen
Norkus
Delivered in open court in Luxembourg on 27 April 2022.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.