JUDGMENT OF THE GENERAL COURT (Single Judge)
30 June 2021 (*)
(EU trade mark – Opposition proceedings – International registration designating the European Union – Figurative mark ROLF – Earlier international mark Wolf – 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) – Obligation to state reasons – Right to be heard)
In Case T‑531/20,
Wolf Oil Corporation NV, established in Hemiksem (Belgium), represented by T. Heremans and L. Depypere, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by K. Kompari 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
Rolf Lubricants GmbH, established in Leverkusen (Germany), represented by D. Terheggen and S. Sullivan, lawyers,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 4 June 2020 (Case R 1958/2019-5), relating to opposition proceedings between Wolf Oil Corporation and Rolf Lubricants,
THE GENERAL COURT (Single Judge),
Judge: U. Öberg,
Registrar: J. Pichon,
having regard to the application lodged at the Court Registry on 21 August 2020,
having regard to the response of EUIPO lodged at the Court Registry on 12 November 2020,
having regard to the response of the intervener lodged at the Court Registry on 2 November 2020,
further to the hearing on 9 March 2021,
having regard to the decision of the General Court (Fifth Chamber), pursuant to Article 14(3) and Article 29 of the Rules of Procedure of the General Court, to assign the case to U. Öberg, sitting as a single Judge,
gives the following
Judgment
Summary and background to the dispute
1        The present dispute concerns, in essence, the alleged likelihood of confusion between the figurative mark
and the earlier word mark WOLF, both of which designate the same goods and target the same relevant public, and the scope of the obligation to state reasons of the European Union Intellectual Property Office (EUIPO) and the scope of the right to be heard before EUIPO.
2        On 30 July 2015, the intervener, ROLF Lubricants GmbH, obtained international registration No 1286835 designating the European Union from the International Bureau of the World Intellectual Property Organisation (WIPO). That international registration was notified to EUIPO on 11 February 2016 pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
3        The trade mark which is the subject of the international registration designating the European Union is the following figurative sign:
4        The relevant goods in respect of which registration was sought are in Classes 1 and 4 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 1: ‘Antifreeze; oil dispersants; detergent additives to petrol; chemical additives for oils; additives, chemical, to motor fuel; fluids for hydraulic circuits; liquids for removing sulfates from batteries; power steering fluid; brake fluid; chemical preparations for decarbonising engines; transmission fluid; transmission oil; anti-boil preparations for engine coolants; coolants for vehicle engines’;
–        Class 4: ‘Cutting fluids; industrial oil; lubricants; lubricating grease; lubricating oil; motor oil; oils for releasing form work [building]’.
5        The trade mark application was published in European Union Trade Marks Bulletin
No 29/2016 of 12 June 2016.
6        On 10 November 2016, the applicant, Wolf Oil Corporation NV, filed a notice of opposition under Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the trade mark applied for in respect of the goods referred to in paragraph 4 above.
7        The opposition was based on seven earlier rights, including international registration No 1053199 of the mark WOLF obtained from the International Bureau of WIPO on 13 September 2010 for the following goods:
–        Class 1: ‘Antifreeze and antifreeze compounds included in this class’;
–        Class 3: ‘Cleaning, polishing, scouring and abrasive products; soap, oils for cleaning purposes; stain removers; polishing paper; windshield washers’;
–        Class 4: ‘Industrial oils and greases; lubricants; dust collecting products; fuels, including motor spirit, and illuminants’.
8        The ground relied on in support of the opposition was, in particular, that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001), alleging a likelihood of confusion on account of the similarity between the mark applied for and the earlier mark, and Article 8(5) of Regulation No 207/2009 (now Article 8(5) of Regulation 2017/1001), based on that similarity and the reputation enjoyed by the earlier mark.
9        On 18 July 2019, the Opposition Division rejected the opposition in its entirety on the ground that there was no likelihood of confusion.
10      On 3 September 2019, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
11      By decision of 4 June 2020 (‘the contested decision’), the Fifth Board of Appeal of EUIPO dismissed the appeal.
12      In the first place, the Board of Appeal found that the goods at issue were intended for business customers with specific professional knowledge or expertise and, for example, in the case of lubricants, that they were aimed at the general public within the European Union.
13      In the second place, the Board of Appeal found that the level of attention of the relevant public varied from average to high.
14      In the third place, the Board of Appeal decided that it was necessary to assess the likelihood of confusion on the assumption that the goods at issue were identical.
15      In the fourth place, the Board of Appeal found that the signs at issue were visually similar to a low degree, that they were phonetically similar to a low degree and that they were not conceptually similar.
16      In the fifth place, the Board of Appeal concluded that the differences at the beginning of the signs at issue were sufficient to counteract their similarities and that, as a result, there was no reason to assume that those signs came from the same undertaking or, as the case may be, from economically linked undertakings.
Forms of order sought
17      The applicant claims that the Court should:
–        annul the contested decision;
–        in the alternative, alter the contested decision so that its action is held to be well founded and, consequently, its opposition upheld;
–        order EUIPO to pay the costs.
18      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
19      The intervener contends that the court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
20      Given the date on which the application for registration at issue was filed, namely 30 July 2015, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (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).
21      Consequently, in the present case, as regards the substantive rules, it is necessary to understand the references made by the Board of Appeal in the contested decision and by the parties in their written pleadings to Article 8(1)(b) of Regulation 2017/1001, as referring to Article 8(1)(b) of Regulation No 207/2009, the wording of which is identical.
22      Furthermore, 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.
23      The applicant puts forward three pleas in law supporting both the claim for annulment of the contested decision and the claim, made in the alternative, for alteration of the contested decision. The first plea alleges, in essence, a failure to state reasons, since the statement of reasons for the contested decision is not logical, contains internal inconsistencies and is incomplete. The Board of Appeal thus infringed Article 94(1) of Regulation 2017/1001. The second plea alleges that the contested decision is based on case-law on which the parties have not had an opportunity to present their comments, in breach of Article 94(1) and Article 95(1) of Regulation 2017/1001. The third plea alleges infringement of Article 8(1)(b) of Regulation No 207/2009. The applicant submits, in essence, that there is a likelihood of confusion between the marks at issue.
24      The Court will first examine the third plea, then the first plea and, lastly, the second plea, including the complaint made in the first plea that the contested decision is based on case-law on which the parties have not had an opportunity to present their comments.
25      Furthermore, in its final submissions at the hearing, EUIPO argued for the first time before the Court that the second head of claim, submitted in the alternative, seeking alteration of the contested decision, was inadmissible, since the case was not, in the event of annulment of the contested decision, ready for final judgment, since the Board of Appeal assumed that the goods at issue were similar, without ruling on the merits in that regard.
26      As regards that plea of partial inadmissibility formulated by EUIPO, it is necessarily inadmissible and, in any event, ineffective, since it was raised at a very late stage in the proceedings, when it could have been raised at the stage of the reply (see, to that effect, judgment of 22 March 2018, Popotas v Ombudsman, T‑581/16, EU:T:2018:169, paragraph 66). When questioned in that regard at the hearing, EUIPO did not put forward any argument to justify why it could not have raised that plea of partial inadmissibility at the outset of the proceedings (in limine litis).
The likelihood of confusion
27      The applicant submits, in essence, that the degree of similarity between the signs at issue is much higher than was held by the Board of Appeal and that it should have concluded that there was a likelihood of confusion, since there is a higher degree of similarity and given the fact that the goods covered by the two marks are identical.
28      EUIPO and the intervener dispute the applicant’s arguments.
29      Under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for shall not be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods 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.
30      According to the case-law of the Court, in the event of opposition based on an earlier individual mark, the likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009, is to be understood as being the risk that the public might believe that the goods or services covered by that mark and those covered by the mark applied for come from the same undertaking or, as the case may be, from economically linked undertakings. The existence of such a risk must be assessed globally, taking into account all factors relevant to the particular case (see judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraphs 63 and 67 and the case-law cited).
31      Those factors include, inter alia, the degree of similarity between the signs at issue and the goods or services in question and also the strength of the earlier mark’s reputation and its degree of distinctive character, whether inherent or acquired through use (judgments of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 64, and of 4 March 2020, EUIPO v Equivalenza Manufactory, C‑328/18 P, EU:C:2020:156, paragraph 57).
The relevant public
32      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).
33      Since the earlier mark has an effect in the European Union, the relevant public is, according to the contested decision, the public throughout the European Union.
34      Next, it is apparent from the contested decision that the goods at issue are intended for business consumers with specific professional knowledge or expertise and the general public, as in the case of lubricants, and that their level of attention varies from average to high.
35      That definition of the relevant public is not disputed by the parties.
Comparison of the goods in question
36      As regards the comparison of the goods in question, the Board of Appeal, for reasons of procedural economy, carried out an assessment of the likelihood of confusion on the assumption that the goods at issue were identical, which, according to the Board of Appeal, was, in respect of the applicant, the most favourable approach as regards the examination of the opposition.
37      The applicant, without disputing the Board of Appeal’s finding that the goods at issue were identical, maintains that the Board of Appeal should have based that finding on a concrete assessment, instead of an assumption, claiming that such a concrete assessment would have a greater impact on the overall assessment of the likelihood of confusion.
38      EUIPO and the intervener dispute the applicant’s arguments.
39      The applicant’s argument in that regard is ineffective. In any event, it is apparent from the contested decision that the Board of Appeal, in paragraph 45 of that decision, based its global assessment of the likelihood of confusion on the fact that the goods at issue were identical, which is not disputed in the present case. The applicant’s argument cannot therefore succeed.
The comparison of the signs
40      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
41      In order to assess the degree of similarity between the signs at issue, it is necessary to determine the degree of visual, phonetic or conceptual similarity between them and, where appropriate, to assess the importance to be attached to those various factors, taking account of the category of goods or services in question and the circumstances in which they are marketed (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 27; see also judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 36 and the case-law cited).
42      In the contested decision, the Board of Appeal concluded that the signs at issue were visually and phonetically similar to a low degree and were not conceptually similar.
43      The applicant submits, in essence, with regard to the visual comparison of the signs, that the signs are similar to a high degree, rather than to a low degree, as the Board of Appeal found, since the dominant word elements of the signs are almost identical, three of their four letters being identical and placed in the same order. The Board of Appeal misapplied the law in finding that the signs were visually similar only to a low degree because the word elements ‘wolf’ and ‘rolf’ were different as regards their first letters ‘w’ and ‘r’ and that the signs were visually different because of the figurative elements of the sign applied for. Where a sign is composed of word and figurative elements, the word elements are, in principle, more distinctive than the figurative elements, 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 mark.
44      Furthermore, while it is true that the mark applied for contains figurative elements in contrast to the earlier sign, those elements are merely decorative and cannot, according to the applicant, be regarded as a distinctive part of the mark, which should have led the Board of Appeal to conclude that those signs are visually highly similar.
45      EUIPO and the intervener dispute the applicant’s arguments.
46      As regards the visual comparison, it must be pointed out, first, that there is nothing to prevent a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM – Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).
47      As a preliminary point, as the Board of Appeal rightly concluded, the signs at issue have no connection with the goods which they designate, with the result that their distinctiveness is normal.
48      Next, the length of the signs may have an influence on the perception of the differences between the signs. The shorter a sign, the more easily the public is able to perceive all the distinct elements of which it is composed. Therefore, in the case of short words, even slight differences can often produce a different overall impression (see, to that effect, judgment of 6 July 2004, Grupo El Prado Cervera v OHIM – Héritiers Debuschewitz (CHUFAFIT), T‑117/02, EU:T:2004:208, paragraph 48).
49      It must be pointed out, as the Board of Appeal correctly found, that the signs at issue each contain only four letters and that they clearly differ in their respective beginnings, that is to say, their first letter ‘r’ and ‘w’. The difference created by the first letters is visually perceptible, particularly since those letters are visually very different and the beginning of a sign is the part to which consumers normally attach more importance (see, to that effect, judgment of 17 March 2004, El Corte Inglés v OHIM – González Cabello and Iberia Líneas Aéreas de España (MUNDICOR), T‑183/02 and T‑184/02, EU:T:2004:79, paragraph 81).
50      Furthermore, the mere presence of the common letters does not in itself justify the conclusion that the signs at issue are visually similar (see, to that effect, judgment of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 52).
51      Furthermore, as regards the case-law relied on by the applicant in support of its claims that the fact that three of the four letters are identical has the effect that the distinction resulting from a letter constitutes a slight visual difference and that word signs which are distinguished by a single letter may be regarded as highly similar from both a visual and a phonetic point of view, it must be noted, as EUIPO has rightly pointed out, that the facts and context of each of those cases are different from those of the present case.
52      Thus, in the case which gave rise to the judgment of 13 April 2005, Duarte y Beltrán v OHIM – Mirato (INTEA) (T‑353/02, not published, EU:T:2005:124), the facts concerned word marks composed of six and five letters whereas, in the present case, the signs at issue contain only four letters, which makes the signs shorter, and the only letter which differentiated the two word marks at issue in that case was the penultimate letter.
53      Concerning the case which gave rise to the judgment of 13 September 2010, Inditex v OHIM – Marín Díaz de Cerio (OFTEN) (T‑292/08, EU:T:2010:399), the facts are also different to those in the present case in that the General Court attached particular weight to the fact that the signs shared four of their five letters, the first letter, moreover, being identical.
54      The Board of Appeal was therefore right to find that the signs at issue were visually similar to a low degree.
55      As regards the phonetic comparison of the signs, the applicant submits that three of the four letters are the same and that each of the signs at issue consists of only one syllable, which results in an identical rhythm in the pronunciation of the two signs. The applicant refers to the judgment of 13 March 2019, Wirecard Technologies v EUIPO – Striatum Ventures (supr) (T‑297/18, not published, EU:T:2019:160), in which it was held that two signs which, like those at issue in the present case, consisted of four letters, three of which were identical and placed in the same order and differed only in their first letter, were phonetically similar.
56      In addition, the applicant submits that the letters ‘w’ and ‘r’ are phonetically linked and are not as phonetically different as the Board of Appeal stated, which is demonstrated by rhotacism, namely the speech disorder defined by the inability to pronounce or difficulty in pronouncing the sound of the letter ‘r’. In English, the most common manifestation of that disorder consists of a pronunciation perceived as closer to the sound of the letter ‘w’.
57      EUIPO and the intervener dispute the applicant’s arguments.
58      As regards the argument that the signs at issue are identical, in so far as they end in the letters ‘o’, ‘l’ and ‘f’ and differ only in the letters ‘w’ and ‘r’, which, according to the applicant, should lead to the conclusion that the signs at issue are phonetically similar, the Board of Appeal was right to conclude that the circumstances of the present case were different from those which gave rise to the judgment of 13 March 2019, supr (T‑297/18, not published, EU:T:2019:160), to which the applicant referred. In that judgment, the General Court found that, despite a slight difference in their lines, the letters ‘z’ and ‘s’ could be perceived as a mirror reflection of each other and could therefore be regarded as visually similar. However, it is sufficient in that regard to note that the differences in pronunciation of the letters ‘w’ and ‘r’ in the present case are much more pronounced than the differences in pronunciation of the letters ‘s’ and ‘z’.
59      The argument that phonetic similarity is demonstrated by the rhotacism relied on by the applicant, which could lead to confusion between the letters ‘w’ and ‘r’, is not such as to invalidate that conclusion.
60      The Board of Appeal was therefore right to find that the signs at issue were phonetically similar to a low degree.
61      As regards the conceptual comparison of the signs, the applicant submits that the Board of Appeal erred in finding that the signs at issue will be perceived as being conceptually different whereas those signs, for the majority of the relevant public, have no apparent meaning and are not conceptually comparable. In the alternative, the applicant submits that the two signs at issue may be perceived as a male first name, a surname or other names of Germanic origin, which is a similar characteristic giving rise to a certain degree of conceptual similarity, and that the fact that those two names of Germanic origin have the same root, namely ‘wulf’, leads to both names sharing similar characteristics which render them conceptually similar, at least for part of the public.
62      EUIPO and the intervener dispute the applicant’s arguments.
63      In that regard, it must be borne in mind, as was stated by EUIPO at the hearing, that the case-law is not entirely settled on how to carry out a conceptual comparison in the case of signs referring to surnames or first names of persons. According to one line of case-law, the fact that marks contain surnames or first names opens the possibility of a conceptual comparison, but does not necessarily imply that there is a conceptual similarity, which can result only from an examination of each individual case. According to a second line of case-law, a conceptual comparison between trade marks composed of surnames or first names of persons is in principle impossible and neutral, unless there are special circumstances which make such a comparison possible, such as, for example, the celebrity of the person concerned or the semantic content of a name (see judgment of 16 December 2020, Production Christian Gallimard v EUIPO – Éditions Gallimard (PCG CALLIGRAM CHRISTIAN GALLIMARD), T‑863/19, not published, under appeal, EU:T:2020:632, paragraphs 101 to 106 and the case-law cited).
64      Nevertheless, in the present case, the difference between those two lines of case-law is irrelevant because, even if a conceptual comparison is carried out, in accordance with the first line of case-law referred to in paragraph 63 above, there is no conceptual similarity between the signs at issue.
65      Contrary to the applicant’s arguments, it may be concluded that, for a large part of the relevant public, in particular, but not only, the English-speaking public, the element ‘wolf’ will be associated with the concept of a wolf and the element ‘rolf’ will be perceived as a male name. Thus, the signs at issue are not conceptually similar, as the name Rolf has no direct conceptual similarity to a wolf. Although it is true that the etymology of the first name Rolf is the combination of the Germanic words ‘hrod’ (renown), ‘wulf’ (wolf) and the Germanic name Hrolf, which in turn is a contraction of Hrodwulf (Rudolf), that does not call that conclusion into question, since the applicant has not, in any event, established in the present case that the relevant public will associate the sign applied for with the concept of a wolf.
66      Furthermore, for the part of the relevant public, principally Germanic, which will recognise both marks as surnames or first names of Germanic origin, those names do not have any particular conceptual meaning. The fact that the two names are of Germanic origin does not, in itself, lead to the conclusion that there is a conceptual similarity between the signs at issue, even taking into account the fact that the two names in question have their roots in the name Hrodwulf.
67      The average consumer does not engage in such a thorough analysis of the origin of the names of trade marks. The circumstances of the present case are thus different from those which gave rise to the judgment of 24 March 2010, Eliza v OHIM – Went Computing Consultancy Group (eliza) (T‑130/09, not published, EU:T:2010:120), relied on by the applicant, in which the General Court held that the relevant public will certainly regard the elements ‘eliza’ and ‘elise’ as female first names which are very similar as they have the same root, whereas the similarity between the words ‘wolf’ and ‘rolf’ is not apparent.
68      In the light of all the foregoing considerations, the findings of the Board of Appeal concerning a low degree of visual and phonetic similarity between the signs at issue and a lack of conceptual similarity must be upheld.
Findings concerning the likelihood of confusion
69      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, 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).
70      The Board of Appeal found that the inherent distinctiveness of the earlier mark as a whole could be considered to be average, that the goods were supposedly identical and that they were aimed at the general public and professionals. The level of attention of the public varies, according to the Board of Appeal, from average to high. The signs, for their part, are visually and phonetically similar to a low degree and are not conceptually similar. According to the Board of Appeal, the mere fact that the two signs share the letter sequence ‘olf’ is not sufficient to rule out the visual and phonetic difference resulting from their first letter, which is clearly different and easy to perceive. Consumers generally pay more attention to the beginning of a mark than to its end. Furthermore, the shorter a sign, the more easily the public is able to perceive all the distinct elements of which it is composed. In short marks, the visual and phonetic differences will not go unnoticed by average consumers. Those visual and phonetic differences will offset the similarities between the signs, thus making both signs sufficiently distinguishable in the minds of the relevant public.
71      The applicant complains that the Board of Appeal did not give a clear decision on whether it considered that the signs at issue were similar or dissimilar overall. Consequently, it did not weigh the degree of similarity between the goods in relation to the degree of similarity of the signs at issue. The Board of Appeal’s assessment of the likelihood of confusion was in fact, according to the applicant, a fresh assessment of the similarity of the signs at issue.
72      In addition, the applicant considers that, in concluding that ‘there [was] no reason to assume that the signs at issue [came] from the same undertaking or, as the case may be, from undertakings that are economically linked’, the Board of Appeal wrongly applied a condition relating to actual confusion, whereas the criterion laid down in Article 8(1)(b) of Regulation No 207/2009 is the criterion of likelihood of confusion.
73      EUIPO and the intervener dispute the applicant’s arguments.
74      In that regard, it is clear from the contested decision that the Board of Appeal, in its global assessment of the likelihood of confusion, took into account all factors relevant to its assessment, including the distinctiveness of the earlier mark, the goods covered by the marks at issue, the relevant public and its level of attention, and the degree of visual, phonetic and conceptual similarity of the signs at issue.
75      Given the low degree of visual and phonetic similarity of the signs at issue, the lack of conceptual similarity and the fact that the visual and phonetic differences will offset the similarities between the signs, thus making the two signs sufficiently different in the mind of the relevant public, it must be concluded, despite the identical nature of the goods at issue, that the Board of Appeal was right to find that there was no likelihood of confusion between the marks at issue.
76      In the light of the foregoing, the third plea, relating to the likelihood of confusion of the marks at issue, must be rejected.
Failure to state reasons
77      The applicant claims, in essence, that the statement of reasons for the contested decision is illogical, contains internal inconsistencies and is incomplete. The Board of Appeal failed to take account of the case-law relied on by the applicant, without explaining why it took the view that that case-law was irrelevant. As regards the overall comparison of the signs, the Board of Appeal did not, according to the applicant, clearly indicate whether the signs at issue were similar or dissimilar and still less give reasons for this. As regards the assessment of the likelihood of confusion, the applicant submits that the Board of Appeal appears to undertake a fresh assessment of visual and phonetic similarity.
78      EUIPO and the intervener dispute the applicant’s arguments.
79      In that regard, when the Board of Appeal confirms a lower-level decision of EUIPO in its entirety, 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 EU judicature to carry out fully its judicial review as to whether the Board of Appeal’s assessment was well founded (see judgment of 14 December 2011, Völkl v OHIM – Marker Völkl (VÖLKL), T‑504/09, EU:T:2011:739, paragraph 93 and the case-law cited).
80      It is clear from the applicant’s arguments that it understood the particulars of the grounds on which the Board of Appeal held that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.
81      Furthermore, contrary to the applicant’s assertions, the Board of Appeal, in paragraphs 45 and 46 of the contested decision, stated its position in full on the overall similarity of the signs at issue.
82      Finally, as to the alleged failure to state reasons as regards the case-law relied on by the applicant, it is sufficient to note that the institutions are not obliged, when stating the reasons for the decisions which they are called on to make, to take a view on every argument which the parties have submitted to them. It is sufficient if they set out the facts and legal considerations having decisive importance in the context of the decision, which is the case here. The decision was thus sufficiently reasoned in that regard (see, to that effect, judgment of 12 November 2008, Shaker v OHIM – Limiñana y Botella (Limoncello della Costiera Amalfitana shaker), T‑7/04, EU:T:2008:481, paragraph 81 and the case-law cited).
83      In the light of the foregoing, the second plea, alleging a failure to state reasons, must be rejected.
The right to a hearing
84      The applicant observes that the Board of Appeal, in paragraph 32 of the contested decision, stated that ‘the length of the signs [could] influence the effect of the differences between the signs’, that ‘the shorter a sign, the more easily the public [was] able to perceive easily all its single elements’ and that, ‘thus, even small differences, [could] frequently lead in short words to a different overall impression’. The applicant submits that, in referring to the case-law cited in that paragraph, the Board of Appeal thus infringed both the second sentence of Article 94(1) and Article 95(1) of Regulation 2017/1001.
85      The applicant takes the view that that argument was not put forward by the intervener in the present case. The applicant was therefore unable to submit its observations on that argument based on the case-law. If the Board of Appeal wished to raise that point of law of its own motion as a basis for its decision, it was obliged to notify the parties so that they could comment on it. In basing its decision on a ground on which the persons concerned were not able to submit their observations, the Board of Appeal infringed the second sentence of Article 94(1) of Regulation 2017/1001.
86      Furthermore, the Board of Appeal may base its decision only on the relative grounds for refusal on which the party concerned relied and the facts and evidence presented by the parties. By attaching importance to that argument, even though it was not raised by the parties, in order to give a decision concerning the similarity of the signs, the Board of Appeal infringed Article 95(1) of Regulation 2017/1001.
87      EUIPO and the intervener dispute the applicant’s arguments. In addition, EUIPO notes that the reason set out in paragraph 32 of the contested decision also appeared in the Opposition Division’s decision. The applicant could therefore clearly have expressed its views on that ground.
88      Under the second sentence of Article 94(1) of Regulation 2017/1001, decisions of EUIPO are to be based only on reasons or evidence on which the parties concerned have had an opportunity to present their comments.
89      Article 95(1) of Regulation 2017/1001 states that in proceedings relating to relative grounds for refusal of registration, the Office is to be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought.
90      The right to be heard covers all the factual and legal evidence which forms the basis for the decision-making act but not the final position which the administration intends to adopt (see judgment of 3 December 2003, Audi v OHIM (TDI), T‑16/02, EU:T:2003:327, paragraph 75 and the case-law cited).
91      As regards the Board of Appeal’s assessment of the factual element concerning the impact of the perception of a sign consisting of only four letters, it must be stated that the same reason was relied on by the Opposition Division in its decision of 18 July 2019. That factual element was not unknown to the applicant.
92      As regards the assertion that the Board of Appeal was under an obligation to inform the applicant regarding the case-law on which it intended to rely in its findings, it is sufficient to note that the Board of Appeal is under no such obligation under the second sentence of Article 94(1) or Article 95(1) of Regulation 2017/1001 (see, by analogy, judgment of 21 May 2014, Commission v Macchia, T‑368/12 P, EU:T:2014:266, paragraph 24 and the case-law cited).
93      In the light of the foregoing, this plea, relating to the right to be heard, must be rejected.
94      In the light of all the foregoing considerations, since none of the pleas in law relied on by the applicant in support of its claims are to be upheld, the action must be dismissed in its entirety.
Costs
95      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.
96      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Single Judge)
hereby:
1.      Dismisses the action;
2.      Orders Wolf Oil Corporation NV to pay the costs.
Öberg
Delivered in open court in Luxembourg on 30 June 2021.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.