JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
9 July 2025 (*)
( EU trade mark – Opposition proceedings – Application for EU figurative trade mark FIZI AQUA – Earlier national word mark FRIZE – Earlier national figurative mark FrizE – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑291/24,
Sumol + Compal Marcas, S.A., established in Carnaxide (Portugal), represented by A. de Sampaio, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Krynica Vitamin S.A., established in Warsaw (Poland),
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva and U. Öberg (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
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
1        By its action under Article 263 TFEU, the applicant, Sumol + Compal Marcas S.A., seeks the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 8 April 2024 (Case R 2593/2023-4) (‘the contested decision’).
Background to the dispute
2        On 20 April 2022, the other party to the proceedings before the Board of Appeal, Krynica Vitamin S.A., filed with EUIPO an application for registration of an EU trade mark in respect of the following figurative sign:
3        The goods in respect of which registration was sought are in Class 32 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: ‘Soft drinks’.
4        On 16 September 2022, the applicant 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 on the following earlier marks:
–        the Portuguese word mark FRIZE, registered under number 352806 covering goods in Class 32;
–        the Portuguese figurative mark, registered under number 642339, covering goods in Class 32 and reproduced below:
6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        By decision of 31 October 2023, the Opposition Division rejected the opposition.
8        On 28 December 2023, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was no likelihood of confusion between the sign applied for and the earlier marks.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        annul the Opposition Division’s decision;
–        order EUIPO to pay the costs.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
Law
12      In support of its action, the applicant raises a single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001, in that the Board of Appeal incorrectly concluded that there was no likelihood of confusion.
13      First, the applicant disputes the Board of Appeal’s finding that no element of the signs at issue is capable of dominating the overall impression given by those signs, and the Board of Appeal’s consideration of elements, other than the word element ‘fizi’, forming part of the sign applied for. Second, the applicant disputes the visual comparison of the signs at issue, claiming that those signs should have been regarded as similar to an average or even high degree. Third, the applicant submits that the Board of Appeal did not correctly justify the phonetic comparison of the signs at issue. Fourth, the applicant disputes the global assessment of the likelihood of confusion.
14      EUIPO disputes the applicant’s arguments.
15      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
16      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. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
17      As the Board of Appeal did, the Court will first compare the mark applied for with the earlier word mark.
18      The Board of Appeal found (i) that the relevant public consisted, in the light of the nature of the goods in question, of the general public which would display an average level of attention and that the relevant territory was, having regard to the earlier word mark, that of Portugal. The Board of Appeal found (ii) that all the goods covered by the mark applied for were identical to the goods covered by the earlier word mark.
19      Those assessments of the Board of Appeal are not disputed by the applicant and there is nothing in the file to call them into question.
The comparison of the signs
20      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must 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).
21      The comparison must be made by examining each of the marks at issue as a whole. Thus, assessment of the similarity between two marks, in principle, means more than taking just one component of a composite trade mark and comparing it with another mark. It is only in circumstances where the overall impression conveyed to the relevant public by a composite trade mark is dominated by one or more of its components and where all the other components of that mark are negligible that the assessment of the similarity can be carried out, by way of exception, solely on the basis of the dominant element (see, to that effect, judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 42).
The dominant and distinctive elements
22      As regards the earlier word mark, the Board of Appeal found that, although the word element ‘frize’ was likely to be perceived by part of the relevant public as alluding to the presence of gas in the beverages covered by that mark, it based its assessment on the non-negligible part of the relevant public for which that element is meaningless. As regards the mark applied for, the Board of Appeal noted (i) that the word element ‘fizi’ was meaningless to the Portuguese-speaking part of the relevant public and (ii) that the word ‘aqua’ would be perceived by the Portuguese-speaking part of the relevant public as indicating the concept of water and should therefore be regarded as non-distinctive.
23      Next, the Board of Appeal noted that account had to be taken of the principle that where a mark is composed of word and figurative elements, the word elements are, in principle, more distinctive than the figurative elements, and of the principle that devices such as a circle, line, rectangle or conventional pentagon are not capable of conveying a message which consumers can remember and that, consequently, those devices played only a secondary role in the signs.
24      Lastly, the Board of Appeal found that no element of the signs compared was capable of dominating the overall impression given by those signs.
25      The applicant does not dispute the Board of Appeal’s assessments that the word elements ‘frize’ and ‘fizi’ are meaningless in Portuguese, that the term ‘aqua’ is non-distinctive and that the figurative elements of the sign applied for are not distinctive. However, the applicant claims, on that basis, that the comparison of the signs and the assessment of the likelihood of confusion must be carried out between the elements ‘frize’ and ‘fizi’. The applicant submits, in that regard, that the Board of Appeal incorrectly found that no element of the signs compared was capable of dominating the overall impression given by those signs. According to the applicant, the dominant element in the earlier marks is the word ‘frize’, whereas the dominant element in the mark applied for is the word ‘fizi’.
26      In addition, the applicant complains that the Board of Appeal incorrectly took into account the presence in the sign applied for of elements other than ‘fizi’ as contributing to the differentiation between the signs compared. The applicant submits, in that regard, that the word element ‘aqua’ is weak and non-distinctive and that the figurative elements play only a secondary role.
27      EUIPO disputes the applicant’s arguments.
28      In the present case, the marks at issue are, on the one hand, a figurative mark in black and white containing the word elements ‘fizi’ and ‘aqua’, in a slightly stylised capital font, placed one above the other, on a black circular background and, on the other hand, the earlier word mark consisting of the word element ‘frize’.
29      According to the case-law, in assessing the dominant character of one or more given components of a composite 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 composite mark (see, to that effect, judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).
30      In order to determine the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgment of 17 January 2024, Ona Investigación v EUIPO – Formdiet (BIOPÔLE), T‑61/23, not published, EU:T:2024:10, paragraph 34).
31      Owing to their low, or even very low, distinctive character, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on consumers and to be remembered by them (see judgment of 17 January 2024, BIOPÔLE, T‑61/23, not published, EU:T:2024:10, paragraph 35 and the case-law cited).
32      The descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by the mark (see judgment of 17 January 2024, BIOPÔLE, T‑61/23, not published, EU:T:2024:10, paragraph 39 and the case-law cited).
33      However, it cannot be considered in advance and in general that the descriptive elements of signs at issue must be excluded from the assessment of their similarity (judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 49 and the case-law cited).
34      In the present case, it must be held that the Board of Appeal correctly found, in paragraphs 37 to 43 of the contested decision, that the word elements ‘frize’ and ‘fizi’ should be regarded as the most distinctive. As regards the earlier word mark, while it is true, as the applicant submits, that the word ‘frize’ is likely to be perceived by part of the relevant public as alluding to the Portuguese term ‘frisante’, clearly a non-negligible part of the same public will not perceive a reference to that term. As regards the mark applied for, first, the word ‘fizi’ is meaningless to the relevant public. Second, the word ‘aqua’ is a common Latin term meaning ‘water’, the meaning of which may be deemed to be known to consumers in the European Union. Moreover, the meaning of the word ‘aqua’ will be understood by Portuguese-speaking consumers because of its close proximity to its equivalent in Portuguese, namely the word ‘água’ and the prefix ‘aqua-’, which is used in various contexts to evoke the term ‘water’ in Portuguese. That word will therefore be perceived by the relevant public as indicating the concept of water. As regards the figurative elements of the mark applied for, it follows from the case-law that a figurative element in a common shape and using a basic colour combination is not likely to divert the relevant public’s attention from the word element towards that figurative element (see, to that effect, judgment of 20 October 2021, St. Hippolyt v EUIPO – Raisioaqua (Vital like nature), T‑351/20, not published, EU:T:2021:719, paragraph 47). That is the case, in the present case, of the black circle in the mark applied for.
35      The Board of Appeal also correctly found, in paragraph 44 of the contested decision, that no element of the signs at issue is capable of dominating the overall impression given by those signs. In that regard, it should be noted that, contrary to what the applicant claims, the word element ‘fizi’ does not, on account of its size or its relative position in the sign applied for, constitute a visually dominant element such as to render the other elements of that sign secondary.
36      The applicant’s arguments are not capable of calling that assessment into question.
37      The applicant does not put forward any argument to establish that the word element ‘fizi’ dominates the visual impression created by the mark of which it forms part. The applicant merely submits that the term ‘aqua’ is weak and non-distinctive and that the figurative elements play only a secondary role.
38      The fact that one of the words making up a composite figurative 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 (see, to that effect, judgment of 11 December 2014, Oracle America v OHIM – Aava Mobile (AAVA CORE), T‑618/13, not published, EU:T:2014:1053, paragraph 33).
39      Similarly, the finding that the figurative elements of a composite figurative mark play only a secondary role does not, in itself, lead to the conclusion that those elements are negligible in the overall impression given by that mark.
40      It follows from the foregoing that, contrary to what the applicant claims, the Board of Appeal did not make an error of assessment in finding that the word elements ‘frize’ and ‘fizi’ were the most distinctive elements of the signs compared and that no element of the signs at issue was capable of dominating the overall impression given by those signs.
The visual comparison
41      The Board of Appeal found, in paragraphs 45 to 48 of the contested decision, that overall, the signs compared were visually similar to a low degree. It found, inter alia, that the most distinctive elements of the signs compared, the word elements ‘frize’ and ‘fizi’, each began with the same letter ‘f’ and also coincided in the letters ‘i’ and ‘z’, whereas they differed in the presence of the letters ‘r’ and ‘e’ in the earlier mark and in the repetition of the letter ‘i’ in the mark applied for. According to the Board of Appeal, those elements are relatively short, and therefore the public will more easily notice the differences between them. In addition, it found that the other differences between the marks compared could not be ignored, given that they give the mark applied for a different structure and length from the earlier mark.
42      The applicant submits that the Board of Appeal incorrectly found that the most distinctive elements of the signs compared were relatively short. Furthermore, the signs compared had in common three letters in the same positions. In addition, the applicant complains that the Board of Appeal incorrectly took into account the presence in the sign applied for of elements other than ‘fizi’ as contributing to the differentiation between the signs compared. In the light of those findings, the signs compared are visually similar to an average, if not a high degree.
43      EUIPO disputes the applicant’s arguments.
44      According to settled case-law, where a figurative mark containing word elements is visually compared to a word mark, the marks are considered to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lower case or upper case, or in colour (see, to that effect, judgment of 24 October 2017, Keturi kambariai v EUIPO – Coffee In (coffee inn), T‑202/16, not published, EU:T:2017:750, paragraph 101 and the case-law cited).
45      That said, it must be noted that the word element ‘frize’, which is the sole word element of the earlier mark, has three letters in common with the word element ‘fizi’ of the mark applied for, including the initial letter ‘f’. However, those elements differ in the presence of the letters ‘r’ and ‘e’ in the earlier word mark and in the repetition of the letter ‘i’ in the mark applied for. Moreover, those elements are made up of only five and four letters respectively, and are therefore relatively short. It is therefore likely that the public will perceive the differences between them more easily.
46      Furthermore, the mark applied for contains an additional word element ‘aqua’, as well as graphic features, which have no counterpart in the earlier mark. As is apparent from paragraphs 28 to 40 above, the Board of Appeal did not make an error of assessment in taking into account the presence in the sign applied for of those elements as contributing to a differentiation between the signs compared. It follows that the applicant’s line of argument in that regard must be rejected.
47      Therefore, the Board of Appeal was correct to find that the signs compared were visually similar to a low degree.
The phonetic comparison
48      The Board of Appeal found, in paragraphs 49 to 52 of the contested decision, that overall, the signs compared were phonetically similar at most to a below-average degree. As the Opposition Division did, the Board of Appeal found, first of all, that a significant part of the public might not pronounce the second word element ‘aqua’ in the sign applied for. Next, it found that, notwithstanding the fact that the most distinctive elements of the signs compared each contain two syllables, the relevant public would notice the different sounds produced by the pronunciation of the letters ‘r’, in the second position in the earlier mark, and ‘e’, in the last position in the earlier mark.
49      The applicant claims that the Board of Appeal did not correctly assess the phonetic comparison of the signs compared. It submits that, in view of the phonetic similarities between the most distinctive elements of the signs compared, namely the three common letters ‘f’, ‘i’ and ‘z’ out of four or five letters respectively, the identical initial letter ‘f’ and the similar sounds of the letters ‘e’ and ‘i’ at the end, those signs have at least an average degree of phonetic similarity. It also claims that consumers generally tend to focus on the beginning of a sign.
50      EUIPO disputes the applicant’s arguments.
51      In the present case, the Court finds that the most distinctive elements of the marks compared have the common letters ‘f’, ‘i’ and ‘z’. Nevertheless, they differ as regards the letters ‘r’ and ‘e’, which are found, respectively, in the second and last position in the earlier mark. Thus, phonetically, the most distinctive elements of the marks compared differ, both as regards the first syllable, namely ‘fi’ instead of ‘fri’, and the second syllable, namely ‘zi’ instead of ‘ze’. In addition, the mark applied for contains a second word element ‘aqua’, which has no counterpart in the earlier mark.
52      Thus, as the Board of Appeal correctly pointed out, the signs have phonetic differences which will be easily and immediately noticed by the relevant public.
53      The applicant’s argument that consumers generally tend to focus on the beginning of a sign when they encounter a trade mark, and that it is relevant that the common element is found at the beginning of the mark applied for, cannot undermine the principle that the assessment of the similarity between the signs must take account of the overall impression given by those signs, since the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgments of 10 October 2006, Armacell v OHIM – nmc (ARMAFOAM), T‑172/05, EU:T:2006:300, paragraph 65 and the case-law cited, and of 27 February 2014, Advance Magazine Publishers v OHIM – Nanso Group (TEEN VOGUE), T‑509/12, EU:T:2014:89, paragraph 40 and the case-law cited). As the Board of Appeal correctly found, the sound of the second consonant ‘r’ will minimise the similarity arising from the same initial consonant ‘f’.
54      The same applies to the applicant’s argument that, from the point of view of the Portuguese consumer, the sound of the letter ‘e’ at the end of the word element ‘frize’ is phonetically negligible compared with the similar sounds produced by the letters ‘e’ and ‘i’. While it is true that, in Portuguese, the sounds of the letters ‘e’ and ‘i’ may have a certain proximity, that proximity does not overcome the differences set out in paragraph 51 above.
55      Therefore, it must be concluded, as the Board of Appeal did, that the signs compared are phonetically similar at most to a below-average degree.
The conceptual comparison
56      The Board of Appeal found, in paragraphs 38, 39 and 54 of the contested decision, that the most distinctive elements of the earlier word mark and of the mark applied for were meaningless to a non-negligible part of the relevant public. Since those elements had no meaning, and since the second word element ‘aqua’ of the sign applied for was weakly distinctive, the Board of Appeal concluded that no conceptual comparison between the signs compared was possible.
57      The applicant does not expressly dispute that assessment. However, it submits that the term ‘aqua’ in the sign applied for will be perceived by the relevant public as referring to the concept of water, thereby calling into question the Board of Appeal’s conclusion referred to in the previous paragraph.
58      In that regard, it must be pointed out, as the Board of Appeal did, that the earlier word mark does not convey any conceptual message capable of being perceived by the relevant public. However, that is not the case for the mark applied for. In fact, while the word element ‘fizi’ is meaningless to the relevant public, as stated in paragraph 34 above, the word element ‘aqua’ conveys a conceptual message for the relevant public relating to the concept of ‘water’ in so far as the word ‘aqua’ is a common Latin term meaning ‘water’, the meaning of which may be deemed to be known to consumers in the European Union. Furthermore, the meaning of the word ‘aqua’ will be understood by Portuguese-speaking consumers because of its close proximity to its equivalent in Portuguese, namely the word ‘água’ and the prefix ‘aqua-’, which is used, in various contexts, to evoke the term ‘water’ in Portuguese.
59      As is apparent from the case-law, where one of the marks at issue has a meaning from the perspective of the relevant public and the other mark has no meaning, it must be held that the marks at issue are conceptually dissimilar (see, to that effect, judgment of 2 February 2022, Canisius v EUIPO – Beiersdorf (CCLABELLE VIENNA), T‑694/20, not published, EU:T:2022:45, paragraph 81).
60      Consequently, contrary to what the Board of Appeal concluded, it was possible to carry out a conceptual comparison of the signs at issue. However, the fact remains that no conceptual similarity can be held to exist in the present case.
Global assessment of the likelihood of confusion
61      The Board of Appeal found, in paragraphs 57 to 61 of the contested decision, that the distinctiveness of the earlier mark had to be regarded as normal, that the goods in question were identical and that the signs compared were visually similar to a low degree, phonetically similar at most to a below-average degree and were conceptually not similar. On the basis of all those findings, it concluded that the differences which the public would perceive between the signs compared were sufficient to overcome the similarities between them, and therefore a likelihood of confusion could be ruled out with certainty.
62      The applicant disputes the Board of Appeal’s conclusion that there is no likelihood of confusion between the signs compared. In particular, the applicant submits that there is a likelihood of confusion on account of the visual and phonetic similarity of the distinctive elements of the signs compared, in conjunction with the fact that the signs compared cover identical goods in Class 32. Even a low degree of visual and phonetic similarity would be offset by the identity of the goods and would therefore give rise to a likelihood of confusion or association.
63      EUIPO disputes the applicant’s arguments.
64      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 (judgment 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). However, there is nothing to prevent a finding that, in view of the circumstances of a particular case, there is no likelihood of confusion, even where identical goods are involved and there is a certain degree of similarity between the marks at issue (judgment of 3 June 2015, Giovanni Cosmetics v OHIM – Vasconcelos & Gonçalves (GIOVANNI GALLI), T‑559/13, EU:T:2015:353, paragraph 132 (not published)).
65      In the present case, it should be noted that the applicant does not dispute the Board of Appeal’s finding that the distinctiveness of the earlier mark had to be regarded as normal. In so far as, as is apparent from paragraph 34 above, the word element ‘frize’ making up the earlier mark is meaningless to a non-negligible part of the relevant public, there is no need to call into question that assessment by the Board of Appeal.
66      Furthermore, it follows from the foregoing considerations (i) that the goods in question are identical and (ii), as is apparent from paragraphs 41 to 60 above, that the signs compared, taken as a whole, are visually similar to a low degree, are phonetically similar at most to a below-average degree and are conceptually different. In that regard, even though the Board of Appeal found that no conceptual comparison between the signs compared was possible, that assessment had no bearing on the assessment of the likelihood of confusion in the present case.
67      In the light of all of those factors, it must be concluded, as the Board of Appeal did, that there is no likelihood of confusion between the signs compared on the part of the relevant public. Even though the goods in question are identical, the presence of the different letters in the most distinctive elements of the signs compared, as well as the presence in the sign applied for of word and figurative elements which have no counterpart in the earlier sign, give two overall impressions which are sufficiently different to exclude any likelihood of confusion or association.
68      Contrary to what the applicant claims, the identity of the goods in question, combined with any degree of visual and phonetic similarity, does not automatically give rise to a likelihood of confusion or association.
69      It must therefore be held that the applicant’s arguments in support of its single plea in law are not capable of calling into question the Board of Appeal’s conclusion that a likelihood of confusion between the mark applied for and the earlier word mark can be ruled out.
70      Similarly, there is no need to call into question the Board of Appeal’s conclusion that a likelihood of confusion between the mark applied for and the earlier figurative mark can be ruled out. In that regard, the Board of Appeal found, in paragraph 63 of the contested decision, that there were even more visual differences between the earlier figurative mark and the sign applied for and that the earlier figurative mark covered a scope of protection equivalent to that of the earlier word mark. It also noted that the figurative element, which consists, inter alia, of a representation of bubbles at the top of the letter ‘i’, accentuated the allusive connotation of the word element ‘frize’, thereby reducing the distinctiveness of the earlier figurative mark. The applicant does not put forward any argument relating to those assessments and there is nothing in the file to invalidate them.
71      In the light of all of the foregoing, since the single plea in law relied on by the applicant in support of its claims must be rejected, the applicant’s first head of claim and, consequently, its second head of claim for alteration of that decision must be rejected.
Costs
72      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.
73      Although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was held, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs.
Costeira
Kancheva
Öberg
Delivered in open court in Luxembourg on 9 July 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.