JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
14 May 2025 (*)
( EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark BIOGENA MOMENTS – Earlier national word mark MOMENT – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑418/24,
Biogena GmbH & Co. KG, established in Salzburg (Austria), represented by I. Schiffer, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Aziende Chimiche Riunite Angelini Francesco SpA (ACRAF SpA), established in Rome (Italy), represented by R. Almaraz Palmero, lawyer,
THE GENERAL COURT (Sixth Chamber),
composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and E. Tichy‑Fisslberger, 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, Biogena GmbH & Co. KG, seeks, in essence, the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 11 June 2024 (Case R 1978/2023-4) (‘the contested decision’).
Background to the dispute
2        On 12 October 2020, the applicant designated the European Union in its international registration of the word mark BIOGENA MOMENTS.
3        The mark applied for covered goods in, inter alia, Class 5 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 corresponding, following the restriction made in the course of the proceedings before EUIPO, to the following description: ‘Nutritional additives, especially antioxidants for medical purposes; dietetic products and nutritional supplements for medical purposes; preparations for the production of beverages for medical purposes; dietetic products for special medical purposes (balanced diets); foods for babies especially milk powder for babies; dietary and nutritional supplements for sports and increased performance for medical purposes; mineral nutritional additives; starch for dietetic and pharmaceutical purposes; nutritional additives, primarily composed of vitamins, amino acids, minerals and trace elements for medical purposes’.
4        On 4 June 2021, the intervener, Aziende Chimiche Riunite Angelini Francesco SpA (ACRAF SpA), filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in the preceding paragraph.
5        The opposition was based, inter alia, on the Italian word mark MOMENT, registered under No 2 020 000 050 242, covering, inter alia, goods in Class 5 and corresponding, inter alia, to the following description: ‘Dietetic foods adapted for medical purposes; dietetic substances adapted for medical use; nutritional supplements’.
6        The ground relied on in support of the opposition was, inter alia, 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        On 17 July 2023, the Opposition Division upheld the opposition in respect of the goods referred to in paragraph 3 above.
8        On 18 September 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that the existence of a likelihood of confusion could not be ruled out. It found in that regard that the goods in question were identical, that the earlier mark was distinctive to a normal degree and that the signs at issue were visually, phonetically and conceptually similar to an average degree. According to the Board of Appeal, the fact that the only word element of the earlier mark is reproduced in its entirety in the mark applied for could lead consumers to believe, despite their increased level of attention, that the goods in question come from the same undertaking or from economically linked undertakings.
Forms of order sought
10      The applicant claims, in essence, that the Court should:
–        annul and alter the contested decision;
–        allow registration of the mark applied for;
–        order EUIPO and the intervener to pay the costs, including those relating to the administrative procedure.
11      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.
12      The intervener contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The jurisdiction of the General Court
13      As a preliminary point, it must be observed that, by the second head of claim, the applicant requests the Court to allow registration of the mark applied for.
14      EUIPO and the intervener contend, in essence, that the applicant’s second head of claim is inadmissible because, like the Board of Appeal, the Court does not have the power to register a mark.
15      In that regard, the applicant’s claim seeking to secure registration of the mark applied for could be regarded as a claim requiring that the Court alter the contested decision within the meaning of Article 72(3) of Regulation 2017/1001, by adopting the decision which the Board of Appeal ought to have taken, in accordance with the provisions of that regulation. The competent bodies of EUIPO do not, however, adopt formal decisions recording the registration of an EU trade mark which could be the subject of an appeal. Consequently, the Board of Appeal does not have the power to take cognisance of an application requesting that it should register an EU trade mark. Nor, in those circumstances, is it for the Court to take cognisance of an application for alteration requesting it to amend the decision of a Board of Appeal to that effect (see judgment of 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, EU:T:2011:158, paragraph 13 and the case-law cited).
16      In the light of the foregoing, the second head of claim must be dismissed on the ground that the Court lacks jurisdiction to hear it.
Admissibility of the action
17      While not formally raising an objection of inadmissibility, the intervener submits that the action is inadmissible because it does not fulfil the minimum requirements laid down in Article 76(d) and (e) of the Rules of Procedure of the General Court. According to the intervener, no point of law was raised in the application in support of the action and, in the absence of any structure in the application, the objections and arguments against the contested decision are not clearly set out therein. The applicant also seeks the alteration of the Opposition Division’s decision (paragraph 112 of the application), which also constitutes an inadmissible claim.
18      In the present case, neither the presentation nor the content of the application makes the applicant’s claims easy to understand. The applicant has not expressly set out any plea in support of its application for annulment of the contested decision and has not inserted any headings permitting the main objections and arguments made against that decision to be identified immediately, whilst indicating, in respect of almost all the grounds in support of the operative part of that decision, the content of the grounds which it considered to be incorrect and which it sought to have amended by altering the contested decision.
19      In that regard, it should be recalled that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, which is applicable to the procedure before the General Court in accordance with the first paragraph of Article 53 thereof, and Article 76(d) of the Rules of Procedure, all applications must contain the subject matter of the dispute and a summary of the pleas in law relied on.
20      Moreover, whilst it should be acknowledged, first, that the statement of the pleas in law in the application need not conform with the terminology and layout of the Rules of Procedure and, second, that those pleas may be expressed in terms of their substance rather than of their legal classification, the application must nonetheless set out those pleas with sufficient clarity (see judgment of 28 September 2016, Pinto Eliseu Baptista Lopes Canhoto v EUIPO – University College London (CITRUS SATURDAY), T‑400/15, not published, EU:T:2016:569, paragraph 43 and the case-law cited). In the application, the applicant requests the Court, by the first head of claim, to annul the contested decision and it is apparent from the content of that application that the applicant alleges that the Board of Appeal committed several errors of assessment in its analysis of the likelihood of confusion between the marks at issue, in breach of Article 8(1)(b) of Regulation 2017/1001, which it seeks, in essence, to have altered.
21      Furthermore, as regards the claim set out in paragraph 112 of the application, it must be held that, in addition to the annulment and alteration of the contested decision, the applicant also requests, secondarily, that the intervener be ordered to pay the costs relating to the proceedings before the Board of Appeal and the Opposition Division.
22      Therefore, the action is admissible in so far as it seeks the annulment and the alteration of the contested decision.
The single plea in law, alleging misapplication of Article 8(1)(b) of Regulation 2017/1001
23      The applicant’s single plea consists, in essence, of four parts by which it challenges the Board of Appeal’s assessments as regards, first, the comparison of some of the goods concerned, second, the comparison of the marks at issue, third, the distinctive character of the earlier mark and, fourth, the likelihood of confusion between those marks.
24      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the 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.
25      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).
26      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).
27      It must be stated at the outset that there is no need to call into question the Board of Appeal’s finding, which is not moreover disputed by the applicant, that, since the analysis is carried out with regard to the Italian word mark MOMENT, the relevant public in the present case consists of both professionals and the Italian-speaking general public. The same is true of the Board of Appeal’s finding of an increased level of attention of that public, having regard to the fact that the goods in question in Class 5 have an impact on consumers’ state of health.
The comparison of the goods in question
28      The applicant claims that the ‘foods for babies especially milk powder for babies’ covered by the mark applied for should not have been included in the finding that the goods in question are identical. According to the applicant, the purpose of ‘foods for babies’ is very different from that of the intervener’s goods for medical use on account, in particular, of their medical aspect. It submits that the medical need to consume dietetic food renders the goods in question different since there is no medical need requiring ‘foods for babies especially milk powder for babies’ to be consumed. According to the applicant, the Board of Appeal’s finding, in paragraph 31 of the contested decision, that ‘foods for babies’ is not included in another class of food and beverages, such as Classes 29 to 32, is not sufficient to conclude that the goods in question are identical.
29      EUIPO, supported by the intervener, disputes the applicant’s arguments.
30      According to the case-law, in assessing the similarity of the goods at issue, all the relevant factors relating to those goods should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (judgment of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37).
31      Where the goods or services covered by an earlier mark include the goods covered by the mark applied for, those goods or services are considered to be identical. The same is true where the goods or services covered by the earlier mark are included in a more general category covered by the mark applied for (see judgment of 5 February 2020, Globalia Corporación Empresarial v EUIPO – Touring Club Italiano (TC Touring Club), T‑44/19, not published, EU:T:2020:31, paragraph 91 and the case-law cited).
32      In the present case, the Board of Appeal found, in paragraphs 26 to 32 of the contested decision, that the general categories of goods covered by the earlier mark included the goods covered by the mark applied for. In particular, it noted that the ‘dietetic foods adapted for medical purposes’ covered by the earlier mark included the ‘foods for babies especially milk powder for babies’ covered by the mark applied for in so far as those foods for babies were intended to be used in diets specially adapted for medical reasons since their composition was intended to safeguard the health of infants and young children because their digestive systems are not capable of processing prepared foods for older children and adults. For those reasons, ‘foods for babies especially milk powder for babies’ were included in Class 5 and not in Classes 29 to 32. Consequently, the Board of Appeal found that the goods in question were identical.
33      First, it should be noted that the applicant challenges the assessment that the goods in question are identical only with regard to the ‘foods for babies especially milk powder for babies’ covered by the mark applied for. Consequently, there is no need to call into question the identity of the other goods in question, which, moreover, is not disputed by the applicant.
34      Second, as regards the ‘foods for babies especially milk powder for babies’ covered by the mark applied for, it must be considered, as the Board of Appeal did, that, according to the case-law, the composition of ‘foods for babies’ is intended specifically to safeguard the health of infants and young children, whose digestive systems are not capable of consuming food prepared for older children or of extracting the substances necessary for their normal development (see, to that effect, judgment of 13 May 2015, Ferring v OHIM – Kora (Koragel), T‑169/14, not published, EU:T:2015:280, paragraph 56). In that regard, ‘foods for babies’ are linked to health (judgment of 6 April 2022, Biogena v EUIPO – Alter Farmacia (NUTRIFEM AGNUBALANCE), T‑370/21, not published, EU:T:2022:215, paragraph 53). Just as adults have a medical need that requires them to take ‘dietetic foods adapted for medical purposes’, babies’ deficiencies or specific needs are compensated for or met by specific preparations of ‘foods for babies especially milk powder for babies’. Thus, those products are intended to meet medical needs in general (see, to that effect, judgment of 10 February 2015, Boehringer Ingelheim International v OHIM – Lehning entreprise (ANGIPAX), T‑368/13, not published, EU:T:2015:81, paragraph 46).
35      Third, as observed by EUIPO, it should be noted that that position is confirmed by the explanatory note relating to Class 5 of the eleventh edition of the Nice Classification, applicable in this case, which states that ‘this class includes, in particular: … dietary supplements intended to supplement a normal diet or to have health benefits’. According to the case-law, the explanatory notes to the Nice Classification are relevant for the purposes of determining the nature and intended purpose of the goods and services compared (see order of 9 September 2019, Shore Capital International v EUIPO – Circle Imperium (The Inner Circle), T‑575/18, not published, EU:T:2019:580, paragraph 38 and the case-law cited).
36      Consequently, it must be concluded that, having regard to the nature, intended purpose and medical purpose of the ‘foods for babies especially milk powder for babies’ covered by the mark applied for, those foods were rightly regarded by the Board of Appeal as forming part of the more general category of ‘dietetic foods adapted for medical purposes’, covered by the earlier mark, so that, according to the case-law cited in paragraph 31 above, those goods must be regarded as being identical and, at the same time, the first part of the single plea in law must be rejected as unfounded.
The comparison of the signs at issue
37      According to the case-law, two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (see judgment of 17 February 2011, Annco v OHIM – Freche et fils (ANN TAYLOR LOFT), T‑385/09, EU:T:2011:49, paragraph 26 and the case-law cited).
38      It is also clear from the case-law that the perception of marks by the average consumer of the goods or services in question plays a decisive role in the global appreciation of the 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).
39      Thus, 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 (judgment of 14 December 2017, N & C Franchise v EUIPO – Eschenbach Optik (OJO sunglasses), T‑792/16, not published, EU:T:2017:908, paragraph 29).
40      Therefore, before considering the applicant’s arguments concerning the Board of Appeal’s assessment of the visual, phonetic and conceptual comparison of the marks at issue, it is necessary to examine whether the Board of Appeal correctly identified their distinctive and dominant elements.
–       The distinctive and dominant elements of the signs at issue
41      The applicant submits, in essence, that the Board of Appeal erred in identifying the semantic meaning, for the relevant public, of the word elements which make up the marks at issue, and assessing the distinctive character of those elements, viewed in isolation or in combination.
42      EUIPO, supported by the intervener, disputes the applicant’s arguments.
43      In this connection, it should be recalled that, in determining 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 24 September 2015, Primagaz v OHIM – Reeh (PRIMA KLIMA), T‑195/14, not published, EU:T:2015:681, paragraph 41).
44      Similarly, 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 in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element. 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 (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 42 and the case-law cited; judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
45      In the first place, as regards the word ‘moment’, which makes up the earlier mark, the Board of Appeal found that it designated, in English, ‘a very short period’. That term would be generally understood by the Italian-speaking public on account of its resemblance to its Italian equivalent, ‘momento’, which refers to ‘smallest fraction of time, shortest time’. The Italian term did not inherently convey the connotation of something which occurs immediately or will occur very soon in relation to the relevant goods. In order to convey the idea that a dietetic substance or a food supplement acts very quickly, the Italian-speaking public would instead use expressions such as ‘effetto immediato’ (immediate effect) or ‘azione rapida’ (rapid action). Consequently, the understanding of the word ‘moment’ by the Italian public, as proposed by the applicant, would require several mental steps. Therefore, the Board of Appeal found that the latter term has, in connection with the goods in question, an average degree of distinctive character in the eyes of the relevant public. The same is true of the plural form ‘moments’ of that word, contained in the mark applied for.
46      In that regard, the applicant reiterates the arguments put forward before the Board of Appeal and claims that the relevant public will understand the word element ‘moment’ making up the earlier mark, in connection with goods with a medical purpose, as producing an effect within a short period of time, which describes the nature and quality of the goods in question. Similarly, that word element is contained in a large number of trade marks registered and coexisting in EUIPO’s database, which is further evidence of its very weak distinctive character, or even of the lack of such character. The same is true of the word element ‘moments’ in the mark applied for.
47      As observed by EUIPO and the intervener, it must, however, be pointed out, first of all, that the applicant has not adduced any evidence capable of substantiating its claims regarding the semantic meaning of the word ‘moment’ with regard to the relevant public in the context of the goods concerned. Nor has the applicant put forward any arguments against the definition of the term at issue, as identified in paragraph 39 of the contested decision.
48      Next, it should be noted that, according to the case-law, a term with a clear meaning is considered to be descriptive only if there is a sufficiently direct and specific relationship between that term and the goods and services in question to enable the public concerned immediately to perceive, without further thought, a description of the goods and services in question or one of their characteristics (see judgment of 24 February 2016, Tayto Group v OHIM – MIP Metro (REAL HAND COOKED), T‑816/14, not published, EU:T:2016:93, paragraph 63 and the case-law cited).
49      In the present case, as the Board of Appeal correctly found, neither the goods in question nor the English word ‘moment’ or its Italian equivalent inherently convey a connotation of immediate effect. Thus, as the Board of Appeal correctly pointed out, in order to convey the idea that a dietetic substance or a dietary supplement acts very quickly, the Italian-speaking public would not use the equivalent Italian term ‘momento’, but other more appropriate terms, such as ‘effetto immediato’ (immediate effect) or ‘azione rapida’ (rapid action).
50      Consequently, it must be found that the English word ‘moment’ cannot have, for the relevant public, a descriptive connotation of immediacy or speed of the action of the goods in question, contrary to what the applicant claims. Therefore, the semantic meaning identified by the Board of Appeal in paragraph 39 of the contested decision, namely ‘smallest fraction of time, shortest time’, must be accepted with regard to the word ‘moment’ (see paragraph 45 above). The same is true of the plural form ‘moments’ of that term contained in the mark applied for.
51      Lastly, the absence of a direct link between the word element at issue and the goods covered by the marks at issue confers on that element an average distinctive character (see judgment of 24 February 2021, Sonova v EUIPO – Digitmarket (B-Direct), T‑61/20, not published, EU:T:2021:101, paragraph 61 and the case-law cited).
52      Furthermore, in the absence of any evidence supported by proof, the applicant’s argument concerning the coexistence in EUIPO’s register of a large number of marks containing the term ‘moment’, which render that word weakly distinctive because it is overused, must be rejected. As the Board of Appeal stated correctly in paragraph 41 of the contested decision, in order to prove that claim, it is necessary to provide evidence of the existence of such trade marks, not in the register, but on the market for the goods concerned (see, to that effect, judgment of 25 May 2016, Ice Mountain Ibiza v EUIPO – Marbella Atlantic Ocean Club (ocean ibiza), T‑6/15, not published, EU:T:2016:310, paragraph 35 and the case-law cited), which, moreover, relate to the same goods and services (see, to that effect, judgment of 21 November 2018, Shenzhen Jiayz Photo Industrial v EUIPO – Seven (SEVENOAK), T‑339/17, not published, EU:T:2018:815, paragraph 55 and the case-law cited).
53      Therefore, it follows from the foregoing that the applicant’s arguments, as regards the word element ‘moment’ making up the earlier mark, and its plural form ‘moments’ making up the mark applied for, must be rejected as unfounded as the word elements at issue are distinctive to an average degree.
54      In the second place, as regards the word element ‘biogena’ in the mark applied for, the Board of Appeal found in paragraphs 43 to 46 of the contested decision that, in essence, the relevant public will not see any semantic meaning in the term ‘biogena’, despite the common root with the Italian term ‘biogeno’, which is known a priori only to academic and scientific circles. Similarly, it found that the alleged enhanced distinctiveness acquired through use of that word element was not only unfounded in that it was unsubstantiated, but also irrelevant to the global assessment of the likelihood of confusion. Therefore, that word element is distinctive to an average degree.
55      The applicant claims, in essence, that, in view of the lack of meaning of the fanciful term ‘biogena’ and the change in the relevant public’s perception of the prefix ‘bio’, that term is the most distinctive within the mark applied for. Furthermore, it submits that that term has acquired highly distinctive character by virtue of its widespread use as a company name, which is known throughout the world, and as an element present in a large number of marks registered by it, which makes it possible to eliminate any likelihood of confusion between the marks at issue.
56      In that regard, it must be found that, in order to consider the word element ‘biogena’ in the mark applied for as being the most distinctive within that mark, the applicant started from the false premiss that the word element ‘moments’ is descriptive of the rapid effect of the goods in question. However, as has been stated in paragraphs 50 and 53 above, that is not the case.
57      Similarly, as regards the alleged enhanced distinctiveness through use of the term ‘biogena’, it is sufficient to note, as in paragraph 45 of the contested decision, that, in addition to the fact that that argument is not supported by any proof, it is irrelevant (see judgments of 19 April 2013, Hultafors Group v OHIM – Società Italiana Calzature (Snickers), T‑537/11, not published, EU:T:2013:207, paragraph 55 and the case-law cited, and of 17 September 2015, Bankia v OHIM – Banco ActivoBank (Portugal) (Bankia), T‑323/14, not published, EU:T:2015:642, paragraph 49 and the case-law cited). As the Board of Appeal rightly pointed out, it is only the enhanced distinctiveness of the earlier mark which is relevant in the global assessment of the likelihood of confusion, because its distinctiveness determines the scope of protection of that mark (see judgment of 16 September 2009, Zero Industry v OHIM – zero Germany (zerorh+), T‑400/06, not published, EU:T:2009:331, paragraph 83 and the case-law cited).
58      In addition, contrary to the applicant’s assertions, the relevant public will naturally detach the prefix ‘bio’ (see, to that effect, judgment of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 51), which is commonly used to refer to the idea of environmental protection, the use of natural materials or even ecological manufacturing processes (see judgments of 10 September 2015, Laverana v OHIM (BIO organic), T‑610/14, not published, EU:T:2015:613, paragraph 17 and the case-law cited, and of 17 January 2024, Ona Investigación v EUIPO – Formdiet (BIOPÔLE), T‑61/23, not published, EU:T:2024:10, paragraphs 40 and 41 and the case-law cited). Similarly, it should be noted, as EUIPO did, that the applicant does not put forward any evidence to support the claim that the relevant public’s perception of that prefix has changed over time. Moreover, that is not at all apparent from either recent or older case-law. However, the descriptive character of that prefix does not affect the distinctive character of the term ‘biogena’ as a whole, which has no direct and immediate semantic meaning as such for the relevant public in the present case.
59      It must therefore be concluded that the word element ‘biogena’, which makes up the mark applied for, has, like the word element ‘moments’ (see paragraph 53 above), an average degree of distinctiveness, so that the applicant’s arguments considering that word element as being the most distinctive must be rejected as, in part, unfounded and, in part, ineffective.
60      In the third place, as regards the semantic meaning of the combination of the terms ‘biogena’ and ‘moments’, which make up the mark applied for, the Board of Appeal found in paragraph 50 of the contested decision that the structure and position of the two word elements of that mark are unusual for the relevant Italian-speaking public, which will not be able immediately to perceive in them ‘momenti con biogena’, as the applicant claims.
61      The applicant reiterates its argument, set out before the Board of Appeal, that the combination of the terms ‘biogena’ and ‘moments’, which make up the mark applied for, has a particular meaning for the relevant public, namely ‘the many good moments with Biogena’ or ‘the many good moments given by Biogena’, which necessarily differs from the meaning of ‘momento’ or ‘moment’ in the singular.
62      It must be stated from the outset that, as regards the applicant’s claims concerning the semantic meaning of the two word elements of the mark applied for taken together, the applicant fails to adduce any evidence at all supporting its argument or allowing the Board of Appeal’s assessment to be called into question. According to the case-law, the burden of proof falls on the party making a contention (see, to that effect and by analogy, judgment of 18 January 2024, Hewlett Packard Development Company, C‑367/21, EU:C:2024:61, paragraph 58).
63      In the present case, contrary to the applicant’s assertions, there is nothing to suggest that the Italian-speaking public will have the same understanding of the mark applied for as an English-speaking public. Thus, in the absence of any evidence supported by proof, there is no reason to call into question the Board of Appeal’s assessments relating to the semantic meaning of the mark applied for or of the earlier mark. Accordingly, the applicant’s arguments that the combination of the terms ‘biogena’ and ‘moments’, which make up the mark applied for, has a particular meaning for the relevant public must be dismissed as unfounded.
64      Therefore, it must be concluded, first, that the word elements making up the mark applied for and the word element making up the earlier mark are each distinctive to an average degree and, second, that only the words ‘moment’ and ‘moments’ have a semantic meaning for the relevant public.
–       The visual, phonetic and conceptual comparison of the signs at issue
65      The applicant argues, in essence, that the presence of the term ‘biogena’ at the beginning of the mark applied for and that of the ‘creative’ letter ‘s’ at the end of the term ‘moment’, which makes up that mark, create differences between the signs at issue which justify the exclusion of any likelihood of confusion visually or phonetically. Similarly, on account in particular of that term and that letter, that mark has a specific meaning distinct from the earlier mark, namely ‘the special moments given by Biogena’ or ‘many wonderful moments given by Biogena’. Thus, the marks at issue are also conceptually different.
66      EUIPO, supported by the intervener, disputes the applicant’s arguments.
67      In the contested decision, the Board of Appeal considered that the visual, phonetic and conceptual similarities of the marks at issue were average. On the visual and phonetic level, it held, in essence, that the signs coincided in the averagely distinctive element ‘moment’ or ‘moments’, even though the second word contains an additional letter ‘s’, which would be perceived by the Italian-speaking public simply as the plural form of the first term. According to the Board of Appeal, those signs differed in the averagely distinctive element ‘biogena’, which has no equivalent in the earlier mark. On the conceptual level, it considered that the relevant public would not distinguish any particular concept in the mark applied for and, therefore, that the marks at issue coincided in the meaning that that public was likely to attribute to the single word element ‘moment’, whether in the singular or in the plural.
68      In the first place, as regards the visual and phonetic similarities of the signs at issue, it should be borne in mind that, according to the case-law, the fact that the earlier mark is wholly included in the mark applied for is liable to create both a strong visual and a strong phonetic similarity between the marks at issue (see judgment of 13 July 2022, Tigercat International v EUIPO – Caterpillar (Tigercat), T‑251/21, not published, EU:T:2022:437, paragraph 63 and the case-law cited).
69      In the present case, it is common ground between the parties that the earlier mark, MOMENT, is wholly included in the mark applied for, BIOGENA MOMENTS.
70      Similarly, it was noted in paragraph 53 above that the term ‘moment’ within the earlier mark and the term ‘moments’ within the mark applied for are distinctive to an average degree. It is also apparent from paragraph 58 above that the term ‘biogena’ within the latter mark is also distinctive to an average degree. Consequently, as noted in paragraph 64 above, all the word elements which make up the mark applied for and the word element which makes up the earlier mark are distinctive to an average degree.
71      According to the case-law, the greater or lesser degree of distinctiveness of the elements common to the mark applied for and an earlier mark is one of the relevant factors in assessing the similarity of those signs (see judgment of 26 March 2015, Royal County of Berkshire Polo Club v OHIM – Lifestyle Equities (Royal County of Berkshire POLO CLUB), T‑581/13, not published, EU:T:2015:192, paragraph 41 and the case-law cited).
72      Similarly, the presence of the letter ‘s’ at the end of the word element ‘moments’ in the mark applied for has only a negligible influence and is not capable of reducing the degree of similarity between the marks at issue (see, to that effect, judgment of 23 November 2011, Monster Cable Products v OHIM – Live Nation (Music) UK (MONSTER ROCK), T‑216/10, not published, EU:T:2011:691, paragraphs 36 and 41). Furthermore, contrary to what the applicant submits, there is no absolute rule that signs must be regarded as different if an identical group of letters is preceded by different letters (see, to that effect and by analogy, judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 92). Thus, where, as in the present case, the earlier mark is wholly included in the mark applied for, the fact that a group of identical letters is preceded by different letters is not sufficient to conclude that there is no similarity between the signs at issue (see judgment of 13 July 2022, Tigercat, T‑251/21, not published, EU:T:2022:437, paragraph 66 and the case-law cited).
73      Therefore, in the light of the foregoing, the Board of Appeal was right to hold that, in the present case, the signs at issue were visually and phonetically similar to an average degree since, with the exception of an additional ‘s’ in the mark applied for, they coincided in a common word element which is distinctive to an average degree.
74      In the second place, as regards the conceptual similarity of the signs at issue, according to the case-law, in order to be similar, the signs must coincide as to their semantic content (see, to that effect, judgment of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24).
75      Since it is clear from paragraphs 50 and 58 above that only the term ‘moment’, including in its plural form, has a meaning for the relevant public, it must be concluded that the marks at issue coincide as to their semantic content in that respect.
76      In view of the fact that the semantic identity between the marks at issue concerns, first, the word element making up the earlier trade mark and, second, one of the two word elements making up the mark applied for, and also the fact that all those word elements are distinctive to an average degree, it must be concluded that the Board of Appeal was right to find that the signs at issue are conceptually similar to an average degree.
77      The second part of the single plea in law must therefore be rejected as unfounded.
The distinctive character of the earlier mark
78      The applicant claims, in essence, that the earlier mark has a very weak distinctive character because it is descriptive of the immediate effect produced on the body ‘in a moment’ by the goods covered by that mark.
79      EUIPO, supported by the intervener, disputes the applicant’s arguments.
80      In the contested decision, the Board of Appeal decided, for reasons of procedural economy, that it was appropriate to base its analysis on the inherent distinctive character of the earlier mark, even though the intervener had argued that that mark had enhanced distinctive character acquired through intensive use. In view of the fact that the term ‘moment’ had no connection with the goods in question (see paragraphs 39 and 40 of the contested decision), it considered that that mark was inherently distinctive to an average degree.
81      In the light of the findings set out in paragraphs 47 to 50 and 64 above, it must be held that the earlier mark is indeed inherently distinctive to an average degree.
82      Therefore, in the absence of any evidence supported by proof in support of the applicant’s claims, the third part of the single plea in law must be rejected as unfounded.
The likelihood of confusion
83      The applicant claims that there is no likelihood of confusion between the marks at issue because the goods at issue are intended for professionals who are accustomed to distinguishing the marks, even on the basis of ‘small differences’, and who will advise the relevant public when making a purchase. Furthermore, the signs at issue are not visually, phonetically or conceptually similar due to the presence of the term ‘biogena’ at the beginning of the mark applied for and the presence of the letter ‘s’ at the end of the term ‘moments’ in that mark, which cannot lead consumers to believe that the goods come from the same undertaking. In addition, Biogena is well known in Italy as a seller of food supplements and not medical products, which reinforces the lack of a likelihood of confusion.
84      EUIPO, supported by the intervener, disputes the applicant’s arguments.
85      According to settled 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 that of the goods or services covered. Therefore, a lesser degree of similarity between the goods or services designated may be offset by a greater degree of similarity between the marks and vice versa (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17; see also judgment of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 35 and the case-law cited).
86      It is also clear from the case-law that the average consumer only rarely has a chance to compare the various marks directly, but must rely on his or her imperfect recollection of them (see judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 60 and the case-law cited). That is also confirmed with regard to a public displaying a high level of attention (see judgment of 6 November 2024, CFA Institute v EUIPO – Global Chartered Controller Institute (CCA CHARTERED CONTROLLER ANALYST CERTIFICATE), T‑561/22, not published, EU:T:2024:777, paragraph 176 and the case-law cited).
87      In the contested decision, the Board of Appeal held that the relevant public had a high level of attention, that the goods in question in Class 5 were identical, that the marks at issue were similar to an average degree and that the earlier mark was distinctive to an average degree. Having regard to those findings, and to the principle of interdependence referred to in paragraph 83 above, it held that a likelihood of confusion could not be ruled out in the present case since the fact that the only word element of the earlier mark is reproduced in the mark applied for could lead consumers to believe that they were from the same undertaking or from economically linked undertakings.
88      In the present case, it should be noted that the applicant’s arguments concerning the global assessment of the likelihood of confusion carried out by the Board of Appeal represent the sum of the arguments put forward against the assessments relating to the similarity of the goods in question, the similarity of the signs at issue and the distinctive character of the marks at issue. However, it should be borne in mind that the applicant’s arguments were rejected in their entirely as either ineffective or unfounded, so that the same arguments regarding the overall analysis of the likelihood of confusion likewise cannot succeed.
89      In view of the fact that the goods are identical, that the marks at issue are similar to an average degree visually, phonetically and conceptually, the single word element of the earlier mark being wholly reproduced in the mark applied for, and that the earlier mark is distinctive to an average degree, even a public with a high level of attention is not safe from confusion between those marks. According to case-law, consumers only very rarely have the chance to compare the different marks and must place their trust in the imperfect memory they have of them, even if they pay heightened attention (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26).
90      Moreover, even assuming that Biogena is well known in Italy, which is hardly established in the present case, the fact that the undertaking is well known has no bearing on the criteria for assessing the likelihood of confusion. The applicant’s argument in that regard is therefore completely irrelevant.
91      Consequently, the fourth part must be rejected as, in part, unfounded and, in part, ineffective.
92      In the light of all the foregoing considerations, it is necessary to dismiss the claims for annulment and, as a consequence, the claims for alteration and, thus, the action in its entirety.
Costs
93      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
94      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, as a hearing has not been organised, be ordered to bear its own costs.
95      Similarly, without it being necessary to rule on the admissibility of the applicant’s claim, in so far as it refers to costs incurred for the purposes of ‘the opposition proceedings as a whole’, it suffices to note that, since the present judgment dismisses the action brought against the contested decision, point 2 of the operative part of that decision continues to govern the costs incurred in the course of the opposition procedure and in the appeal proceedings before EUIPO (see, to that effect, judgment of 9 November 2022, CB v EUIPO – China Construction Bank (CCB), T‑639/21, not published, EU:T:2022:698, paragraph 126 and the case-law cited).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Biogena GmbH & Co. KG to bear its own costs and to pay the costs incurred by Aziende Chimiche Riunite Angelini Francesco SpA (ACRAF SpA);
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Costeira
Kancheva
Tichy-Fisslberger
Delivered in open court in Luxembourg on 14 May 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.