JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
21 May 2025 (*)
( EU trade mark – Opposition proceedings – Application for EU figurative mark BULL’S THE DART SIDE OF LIFE – Earlier EU figurative mark BULL’S – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑1054/23,
Embassy Sporthandel GmbH, established in Münster (Germany), represented by G. Vierkötter, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Zwibo BV, established in Naaldwijk (Netherlands), represented by H. Pors, lawyer,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik‑Bańczyk, President, G. Hesse and I. Dimitrakopoulos (Rapporteur), Judges,
Registrar: G. Mitrev, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 January 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Embassy Sporthandel GmbH, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 August 2023 (Case R 92/2023-2) (‘the contested decision’).
Background to the dispute
2        On 24 August 2020, the predecessor in title to the applicant, MNO Data GmbH, filed with EUIPO an application for registration of an EU trade mark, published on 9 September 2020, for the following figurative sign (‘the mark applied for’):
3        The goods in respect of which registration of the mark was sought were in Class 28 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘Barrels for darts; Dart board cabinets; Dart boards; Dart mats; Darts; Electronic dart games; Holders for darts; Dart wallets; Dart shafts; Dart board overlays; Containers adapted for holding darts; Containers adapted for holding darts flights’.
4        On 26 November 2020, the intervener, Zwibo BV, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5        The opposition was based, inter alia, on Benelux registration No 1 030 116 for the figurative mark reproduced below, filed and registered on 13 February 2018:
6        The goods in respect of which protection of the abovementioned earlier mark was granted were in Classes 25 and 28 and corresponded, for each of those classes, to the following description:
–        Class 25: ‘Sportswear for darts’;
–        Class 28: ‘Darts and customised cases and holders for darts; dartboards; darts games; points for darts; shafts for darts; flights for darts’.
7        The ground relied on in support of the opposition was that referred to in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
8        On 14 November 2022, the Opposition Division upheld the opposition in its entirety.
9        On 13 January 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
10      By the contested decision, the Board of Appeal dismissed the appeal and upheld the Opposition Division’s decision, finding that there was a likelihood of confusion between the marks at issue within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
11      The applicant claims, in essence, that the Court should:
–        annul the contested decision and reject the opposition only in so far as it is based on Benelux registration No 1 030 116;
–        order the intervener to pay the costs, including those relating to the proceedings before the Board of Appeal.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
13      The intervener contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs of the present proceedings and those relating to the appeal proceedings before the Board of Appeal.
Law
14      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 and of Article 47(5) of that regulation. It submits, in essence, that the Board of Appeal erred in finding that there was a likelihood of confusion in the present case in that it made errors of assessment regarding the determination of the distinctive and dominant elements of the signs at issue and, consequently, regarding the comparison of those signs.
15      EUIPO and the intervener contend that the single plea in law should be rejected.
16      Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, an 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. Furthermore, under Article 8(2)(a)(ii) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered in a Member State, or, as regards Belgium, the Netherlands or Luxembourg, at the Benelux Office for Intellectual Property, with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
17      The risk that the public might 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 between the goods or services identified (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).
18      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
19      In the present case, as regards the definition of the relevant public, the Board of Appeal found, in paragraphs 20 to 23 of the contested decision, that the goods covered by the marks at issue were aimed at the general public, with an average level of attention, and at the professional public, with an above-average or even high level of attention. Lastly, it found that the relevant territory was that of the Benelux countries.
20      As regards the comparison of the goods covered by the marks at issue, the Board of Appeal found, in paragraphs 24 to 27 of the contested decision, that, first, the ‘barrels for darts’, ‘dart board cabinets’, ‘dart mats’, ‘dart board overlays’ and ‘containers adapted for holding darts flights’ covered by the mark applied for were similar to a high degree to the goods covered by the earlier mark, in particular to the ‘darts’ and ‘dartboards’ covered by the latter. Second, it concluded that the other goods covered by the mark applied for were identical to those covered by the earlier mark.
21      The applicant does not dispute the Board of Appeal’s assessments relating to the definition of the relevant public and its level of attention and also to the comparison of the goods at issue.
22      As regards the comparison of the signs at issue, it must be borne in mind that, according to settled case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgments of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30, and of 11 December 2024, Meica v EUIPO – Lénárd (CHIPSY KINGS), T‑157/24, not published, EU:T:2024:891, paragraph 29).
23      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs, 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 assessment of that likelihood of confusion. In that 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).
24      Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks 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 (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
25      In the present case, as a preliminary point, it should be noted that the signs at issue are both figurative. The earlier mark is represented in black and white. That mark consists of black and white stripes around an open circle in which the body of a black bull is reproduced. Below that circle, in an open rectangular box, the word ‘bull’s’ appears in bold black capital letters. The mark applied for is represented in red, black and white. That mark consists of two rectangular boxes, placed on top of each other. In the box placed at the top of that mark, on a black background, appears the expression ‘bull’s’, written in bold white capital letters. In the box placed at the bottom of that mark, on a red background, appears the expression ‘the dart side of life’, written in smaller white capital letters. Straddling those two rectangular boxes, on their right-hand side, is the letter ‘b’ written in bold black capital letters. That letter is represented inside a white circle decorated with white horns, which is itself inserted into another circle, which is larger and red (‘the symbol B’).
26      Before addressing the question of the visual, phonetic and conceptual similarity of the signs at issue, it is necessary to examine the Board of Appeal’s assessment of the distinctive and dominant elements of those signs, which was disputed by the applicant.
The distinctive and dominant elements of the signs at issue
27      For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods and services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods and services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods and services for which the mark has been registered (see, by analogy, judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM – Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 47 and the case-law cited).
28      The allusive character of an element composing a mark, like the descriptive or laudatory character of such an element, is capable of affecting its inherent distinctive character. The ability to enable the consumer to distinguish immediately and with certainty the goods and services covered by a mark, in so far as it contains that element, from the goods of other undertakings, is reduced in all the abovementioned situations (see, by analogy, judgment of 23 May 2019, Dentsply De Trey v EUIPO – IDS (AQUAPRINT), T‑312/18, not published, EU:T:2019:358, paragraph 50).
29      With regard to the assessment of the dominant character of one or more given components of a complex trade mark, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the complex mark (judgment of 23 October 2002, MATRATZEN, T‑6/01, EU:T:2002:261, paragraph 35).
30      The weak distinctive character of an element of a complex mark does not necessarily imply that that element cannot constitute a dominant element since, because, in particular, of its position in the sign or its size, it may make an impression on consumers and be remembered by them (judgment of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 32).
31      The fact that one of the two words making up a word mark is descriptive does not, in itself, allow the conclusion to be drawn that that word is insignificant in the overall impression produced by that mark (judgment of 11 December 2014, Oracle America v OHIM – Aava Mobile (AAVA CORE), T‑618/13, not published, EU:T:2014:1053, paragraph 33).
32      Furthermore, where a trade mark is composed of verbal and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the trade mark (judgments of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37, and of 20 December 2023, Campofrio Food Group v EUIPO – Cerioti Holding (SNACK MI), T‑736/22, not published, EU:T:2023:852, paragraph 39).
33      In the present case, in paragraphs 34 to 44 of the contested decision, the Board of Appeal examined the distinctive and dominant elements of the signs at issue.
34      In the first place, as regards the distinctiveness of the element ‘bull’s’, which is common to the signs at issue, the Board of Appeal found, first, that the English-, German- and Dutch-speaking parts of the relevant public would understand that word as a reference to male cattle, unrelated to the goods at issue.
35      Second, for the French-speaking part of the relevant public, which is non-English-speaking, the Board of Appeal found that the element ‘bull’s’ had no meaning.
36      It follows that the element ‘bull’s’ has a normal degree of distinctiveness for a significant part of the relevant public, which either associates no meaning with it or understands it as a reference to male cattle, unrelated to the goods at issue.
37      Third, for the part of the relevant public made up of darts enthusiasts and professionals, the element ‘bull’s’ refers to the centre of the dartboard. That part of that public is familiar with the words or expressions ‘bullseye’, ‘bull’s eye’, ‘bull’, ‘single bull’ or ‘double bull’, referring to the centre of the dartboard. However, according to the Board of Appeal, that element does not immediately indicate the characteristics of the goods at issue; therefore, for that part of that public, it is at most allusive, but not descriptive, and it is therefore weakly distinctive.
38      In the second place, as regards the distinctive character of the other elements of the mark applied for, the Board of Appeal noted that the expression ‘the dart side of life’ and the symbol B were distinctive and that the other stylisation elements of the signs at issue were merely decorative.
39      In the third place, as regards the dominant elements of the signs at issue, the Board of Appeal found that, although the expression ‘the dart side of life’ of the mark applied for had a normal degree of distinctiveness, the element ‘bull’s’ was more visually striking, in particular because of its position and colour combination, regardless of whether that element was regarded as having a normal degree of distinctiveness or as having weak distinctiveness. It concluded that that element and the symbol B were co-dominant in that mark. As regards the earlier mark, it found that it did not contain any decorative element that was clearly more dominant or visually more eye-catching than the others and therefore the element ‘bull’s’ and the figurative element representing a bull were equally dominant.
40      The applicant disputes those assessments. It submits that the Board of Appeal incorrectly assumed that the expression ‘bull’s’ would be understood as referring to male cattle, whereas, since the marks at issue are directed at a public consisting of darts enthusiasts and professionals, that expression in fact refers to the game of darts and, more specifically, to the centre of the dartboard of that game. Consequently, that expression is purely descriptive, has no distinctive character and should be disregarded in the global assessment of the likelihood of confusion.
41      EUIPO and the intervener dispute the applicant’s arguments.
42      In this respect, in the first place, as regards the distinctive character of the word element ‘bull’s’, which is common to the signs at issue, it should be noted that the applicant has not put forward any specific arguments challenging the Board of Appeal’s assessment, set out in paragraphs 35 and 37 of the contested decision, that the French-speaking part of the relevant public would not perceive that word element as referring to the centre of the dartboard. The applicant’s mere assertion that the word ‘bull’ or the expression ‘bull’s’ are internationally understood in the field of the game of darts as technical terms cannot suffice in that regard.
43      Moreover, it should be noted, as the Board of Appeal did in paragraph 39 of the contested decision, that the word element ‘bull’s’ does not coincide with any of the words or expressions ‘bullseye’, ‘bull’s eye’, ‘single bull’, ‘double bull’ or ‘bull’, so that, in any event, consumers and professionals within the French-speaking part of the relevant public who are not familiar with the terminology of the game of darts will not make a connection with those words or expressions which are used in the field of darts. Furthermore, the applicant has not put forward any specific and substantiated argument to establish that that element constitutes a shortened form of the word ‘bulleye’ or ‘bullseye’.
44      It follows that, for the French-speaking part of the relevant public, which constitutes a non-negligible part of that public, sufficient for a finding of a likelihood of confusion in the light of the case-law according to which a finding that there is a likelihood of confusion for a non-negligible part of the relevant public is sufficient to uphold an opposition brought against an application for registration of a mark (judgment of 20 November 2017, Stada Arzneimittel v EUIPO – Urgo recherche innovation et développement (Immunostad), T‑403/16, not published, EU:T:2017:824), the Board of Appeal was therefore entitled to find that the word element ‘bull’s’ was distinctive, contrary to the applicant’s arguments.
45      In the second place, as regards the dominant elements of the signs at issue, contrary to what the applicant claims, the element ‘bull’s’ may be dominant in the overall impression given by those signs, for the French-speaking part of the relevant public and, in particular, for consumers within that part of that public who are not familiar with the terminology of the game of darts. The applicant’s argument that that element is descriptive and must therefore be disregarded when assessing the similarity of the signs has no factual basis as regards that part of that public.
46      In that regard, not only is the element ‘bull’s’ distinctive for the French-speaking part of the relevant public, but it should also be noted that that element is visually dominant because of its place, size and colour in each of the signs at issue. As regards the earlier mark, that element and the figurative element representing a bull are co-dominant because of the place and size of that figurative element, as the Board of Appeal pointed out in paragraph 43 of the contested decision. As regards the mark applied for, contrary to what the applicant claims, the expression ‘the dart side of life’ is not dominant because of its place underneath the expression ‘bull’s’ and its small size in relation to the latter, even though it appears in white characters and is framed by a red rectangle which extends across the entire width of the sign. By contrast, the symbol B co-dominates, with the element ‘bull’s’, the overall impression given by the mark applied for, as the Board of Appeal pointed out in paragraph 44 of that decision. That is so because of the colour of that symbol, its size and its sophistication, which results from the various coloured circles and horns referring to male cattle.
47      Consequently, for a non-negligible part of the relevant public, namely the French-speaking part of that public, the Board of Appeal was entitled to find that the element ‘bull’s’, common to the signs at issue, had a normal degree of distinctiveness and was a co-dominant element of those signs.
Visual, phonetic and conceptual comparisons of the signs at issue
48      In paragraphs 45 to 54 of the contested decision, the Board of Appeal found, as regards, first, the visual comparison of the signs, that the signs at issue coincided in the word element ‘bull’s’, written in capital letters in fonts that were at least very similar. Nevertheless, those signs differ, first, in the expression ‘the dart side of life’ and the symbol B, decorated with bull’s horns, which appear in the mark applied for, and, second, in their structure, that mark comprising of two black and red rectangles and the earlier mark comprising of a black and white anvil and the representation of a bull. According to the Board of Appeal, those differences led to a below-average degree of visual similarity.
49      Second, the Board of Appeal found that the pronunciation of the element ‘bull’s’, common to the signs at issue and the only word element of the earlier mark, was phonetically identical. According to it, for a part of the relevant public, those signs are pronounced in the same way because, due to the economy of language, the expression ‘the dart side of life’ and the symbol B of the mark applied for are not pronounced. For that non-negligible part of that public, those signs are phonetically identical. By contrast, for the part of that public which pronounces all the word elements of the mark applied for, the signs at issue have at least a low degree of phonetic similarity.
50      Third and last, the Board of Appeal found that English-speaking darts enthusiasts and professionals who associate a meaning with the expression ‘bull’s’, the signs at issue are conceptually similar at least to an average degree, the similarity being higher for consumers who understand only that expression and not the expression ‘the dart side of life’ of the mark applied for. For the part of the relevant public which does not associate any meaning with the expressions in question, no conceptual comparison is possible.
51      The applicant disputes those assessments. It claims that the word element ‘bull’s’ should not be taken into account when comparing the signs at issue, due to its lack of distinctiveness. It notes, in any event, that those marks are not similar because of ‘clearly discernible’ differences and the fact that the expression ‘the dart side of life’ of the mark applied for will be pronounced by the relevant public.
52      EUIPO and the intervener dispute the applicant’s arguments.
53      In the first place, it should be noted, as EUIPO did, that the applicant’s line of argument is based on the false premiss that the element ‘bull’s’ is not a distinctive element of the signs at issue and that, accordingly, it should not be taken into consideration in the comparison of those signs. As set out in paragraphs 42 to 44 above, for a non-negligible part of the relevant public, namely the French-speaking part of that public, and in particular consumers within that part who are not familiar with the terminology of the game of darts, the Board of Appeal was entitled to find that the word element ‘bull’s’ was distinctive.
54      In the second place, as regards the visual comparison of the signs, although the applicant points out the differences between the signs at issue, as described in paragraph 25 above, which were also noted by the Board of Appeal in paragraph 45 of the contested decision, those signs coincide in the co-dominant and distinctive word element ‘bull’s’, written in capital letters in fonts that are at least very similar, while differing, first, in the representation of the whole body of a bull in the earlier mark; second, in the symbol B and the expression ‘the dart side of life’ of the mark applied for; third, in their shape, the earlier mark being trapezoidal and the mark applied for rectangular; and, fourth, in their colours, the expression ‘bull’s’ appearing in black characters in the earlier mark but in white characters in the mark applied for, and the latter consisting of red, which is not present in the earlier mark.
55      Consequently, the Board of Appeal was entitled to find that the degree of visual similarity between the signs at issue was below average.
56      In the third place, as regards the phonetic comparison of the signs, although the applicant considers that the expression ‘the dart side of life’, present in the mark applied for, makes the pronunciation of the signs at issue different, it must first of all be borne in mind that those signs have the word element ‘bull’s’ in common and that that element is the only word element of the earlier mark.
57      In that regard, it must be pointed out, first, that when consumers name composite signs consisting of word and figurative elements, they generally refer only to the word elements and consequently normally disregard the figurative elements, which cannot therefore play a part in the context of the phonetic assessment (see, to that effect, judgment of 14 February 2008, Orsay v OHIM – Jiménez Arellano (O orsay), T‑39/04, not published, EU:T:2008:36, paragraph 49). Second, consumers tend to shorten the pronunciation of marks to economise on words and therefore tend to focus on the visually dominant elements that are easily separable from the rest when they are pronounced (see, to that effect, judgment of 25 March 2009, L’Oréal v OHIM – SpA Monopole (SPA THERAPY), T‑109/07, EU:T:2009:81, paragraph 30 and the case-law cited; judgment of 16 September 2009, Zero Industry v OHIM – zero Germany (zerorh +), T‑400/06, not published, EU:T:2009:331, paragraph 58).
58      Consequently, a part of the relevant public, and in particular the French-speaking part of the relevant public, will refer to each of the signs at issue by the word element ‘bull’s’. It is the only word element of the earlier mark and the applicant has not explained why that part of that public would pronounce the expression ‘the dart side of life’ of the mark applied for or the capital letter ‘B’ of that mark.
59      Consequently, the Board of Appeal was entitled to find that the signs at issue were phonetically identical for a non-negligible part of the relevant public, which logically included, inter alia, the French-speaking part of that public.
60      In the third place, as regards the conceptual comparison of the signs, the applicant refers to its previous observations that the signs at issue convey a different meaning.
61      In that regard, it should first of all be borne in mind that, according to the case-law, purely decorative elements have no specific meaning for the relevant public (see, to that effect, judgment of 20 September 2019, The Logistical Approach v EUIPO – Idea Groupe (Idealogistic Compass Greatest care in getting it there), T‑716/18, EU:T:2019:642, paragraph 60 (not published)). That is the case with the decorative elements described in paragraph 25 above.
62      Furthermore, where none of the signs at issue has any meaning taken as a whole, it must be held that a conceptual comparison is not possible (see, to that effect, judgments of 21 September 2017, Novartis v EUIPO – Meda (Zymara), T‑214/15, not published, EU:T:2017:637, paragraph 149, and of 5 October 2017, Forest Pharma v EUIPO – Ipsen Pharma (COLINEB), T‑36/17, not published, EU:T:2017:690, paragraph 96). In the present case, as the Board of Appeal pointed out, in essence, in paragraph 54 of the contested decision, a part of the relevant public, namely that which is not made up of English-speaking darts enthusiasts and professionals, will not associate any meaning with the expressions ‘bull’s’ and ‘the dart side of life’. For that part of that public, those signs have no meaning and their conceptual comparison is not possible.
63      Furthermore, the applicant has not claimed or, a fortiori, demonstrated that the part of the relevant public which would not associate any meaning with the expression ‘bull’s’ is negligible within that public and, therefore, is not sufficient for a finding that there is a likelihood of confusion.
64      Consequently, the Board of Appeal did not make an error of assessment in finding, in paragraph 54 of the contested decision, that a conceptual comparison of the signs at issue was not possible for the part of the relevant public which would not associate any meaning with the word element ‘bull’s’.
Global assessment of the likelihood of confusion
65      According to the case-law, 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 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, 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).
66      In paragraphs 55 to 62 of the contested decision, the Board of Appeal concluded that there was a likelihood of confusion. It noted, inter alia, first, that the earlier mark had a normal degree of distinctiveness for a non-negligible part of the relevant public, second, that the goods at issue were identical or similar to a high degree and, third, that the signs at issue were visually similar to a below-average degree and, for a part of the relevant public, phonetically identical. It also found that, for the non-negligible part of the relevant public which did not associate any meaning with the word element ‘bull’s’, the mark applied for could be perceived as another version of the earlier mark.
67      The applicant disputes the Board of Appeal’s global assessment of the likelihood of confusion, maintaining that the signs at issue are different and that, according to the principle of interdependence, there is no likelihood of confusion in the present case.
68      In that regard, it should be borne in mind, first, that the applicant has not disputed the definition of the relevant public and the level of attention of that public or the similarity to a high degree or the identity of the goods at issue (see paragraphs 19 to 21 above). Second, the applicant’s line of argument regarding the comparison of the signs at issue as regards a non-negligible part of the relevant public, namely the French-speaking part, has been rejected (see paragraphs 42 to 64 above).
69      Furthermore, the applicant does not claim that the earlier mark has a high degree of distinctiveness. It must therefore be held that, in the present case, the Board of Appeal was therefore entitled to conclude, in view of the high degree of similarity or identity of the goods at issue and the below-average visual similarity of the signs at issue and the phonetic identity of those signs for a non-negligible part of the relevant public, that there was a likelihood of confusion between the marks at issue within the meaning of Article 8(1)(b) of Regulation 2017/1001.
70      Accordingly, the single plea in law must be rejected and, consequently, the action must be dismissed in its entirety, without there being any need to rule on the admissibility of the second part of the applicant’s first head of claim, which seeks the rejection of the opposition, on the admissibility of the annexes produced by the applicant, which is disputed by EUIPO, or on the admissibility of the annexes submitted by the intervener, which is disputed by the applicant.
Costs
71      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.
72      Since a hearing has been convened and the applicant has been unsuccessful, it must be ordered to pay the costs incurred before the Court, in accordance with the forms of order sought by EUIPO and the intervener.
73      In addition, the intervener also contended that the applicant should be ordered to repay the costs incurred before the Board of Appeal. In that regard, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, Article 2 of the operative part of that decision continues to govern the costs incurred in the opposition proceedings and in the appeal proceedings before EUIPO (see judgment of 14 July 2021, Cole Haan v EUIPO – Samsøe & Samsøe Holding (Ø), T‑399/20, EU:T:2021:442, paragraph 64 and the case-law cited).
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Embassy Sporthandel GmbH to pay the costs.
Kowalik-Bańczyk
Hesse
Dimitrakopoulos
Delivered in open court in Luxembourg on 21 May 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.