JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
15 April 2026 (*)
( EU trade mark – Opposition proceedings – Application for EU word mark Serosan – Prior national word mark CLENOSAN – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑476/25,
Ionfarma, SL, established in Barcelona (Spain), represented by T. González Martínez, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by R. Raponi, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Vision Healthcare BV, established in Amsterdam (Netherlands), represented by V. Pede, lawyer,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kecsmár, President, P. Nihoul (Rapporteur) and L. Truchot, 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, Ionfarma, SL, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 22 May 2025 (Case R 1629/2024-5) (‘the contested decision’).
Background to the dispute
2        On 11 March 2022, the intervener, Vision Healthcare BV, filed an application for registration of an EU trade mark with EUIPO for the word sign Serosan.
3        Following the restriction made in the course of the proceedings before EUIPO, the mark applied for covered goods in 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, corresponding to the following description: ‘Food supplements for mental health; herbal supplements; vitamin preparations; sedatives; tonics [medicines]; vitamin drinks; dietary fibre; probiotic supplements; dietary and nutritional supplements; food supplements for non-medical purposes; nutritional supplements; powdered nutritional supplement drink mix; meal replacement powders; nutritional supplement meal replacement bars for boosting energy; mineral nutritional supplements; dietary supplements consisting of vitamins; food supplements consisting of amino acids; protein dietary supplements; enzyme dietary supplements; dietary fiber to aid digestion; plant extracts for pharmaceutical purposes’.
4        On 14 June 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 earlier Spanish word mark CLENOSAN, filed on 8 June 1971 and registered under No M3002110, for goods in Class 3 corresponding to the following description: ‘Soaps, cosmetics’.
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        Following a request made by the intervener, EUIPO invited the applicant to furnish proof of genuine use of the earlier mark which had been relied on in support of the opposition. The applicant complied with that request.
8        On 18 July 2024, the Opposition Division rejected the opposition.
9        On 13 August 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
10      By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 for the goods covered by the mark applied for. Even on the assumption that the goods were identical, and despite the fact that the degree of distinctiveness of the earlier mark was only average, the Board of Appeal found there to be striking visual and phonetic differences in the initial parts of the signs at issue, which could not be offset by the similarity found at the end of those signs.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        reject in its entirety the application for registration of the mark applied for in respect of goods in Class 5;
–        order EUIPO and the intervener to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
13      The intervener contends, in essence, that the Court should:
–        declare inadmissible the claim to reject in its entirety the application for registration of the mark applied for in respect of goods in Class 5;
–        dismiss the action;
–        order the applicant to pay the costs.
Law
14      In support of the action, the applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It disputes the assessments made by the Board of Appeal concerning the comparison of the signs at issue and also the global assessment of the likelihood of confusion.
15      EUIPO and the intervener dispute the applicant’s arguments.
16      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.
17      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 32 and the case-law cited).
The relevant territory and the relevant public
18      According to the Board of Appeal, the relevant territory is Spain. The Board of Appeal found that the relevant public was made up of consumers who were likely to use both the goods covered by the earlier mark in Class 3 and the goods covered by the mark applied for in Class 5.
19      As regards the level of attention of the relevant public, the Board of Appeal found that:
–        the goods in Class 3 covered by the earlier mark targeted both the general public and professionals and that the level of attention that had to be taken into account was average;
–        the goods in Class 5 also targeted both the general public and professionals, but fell within the field of health, meaning that the level of attention relevant to them was high.
20      It follows that the Board of Appeal in essence considered the level of attention to vary from average to high depending on the goods in question.
21      Whilst it does not formally dispute the Board of Appeal’s assessment, the applicant states that the level of attention of the relevant public is average or even limited, since, in the pharmaceutical, cosmetic and personal care sectors, consumers make quick decisions or act on the basis of limited information.
22      In that regard, suffice it to note that the applicant does not put forward any argument or evidence in support of its allegation. There is therefore no need to call into question the Board of Appeal’s findings referred to in paragraphs 19 and 20 above.
The comparison of the goods in question
23      The Opposition Division found that the goods in question were in part similar to an average degree and in part dissimilar. For reasons of procedural economy, the Board of Appeal decided, in paragraph 42 of the contested decision, to rely on the assumption that the goods in question were identical, which was most favourable for the applicant.
24      The applicant does not dispute that assessment. By contrast, the intervener submits that the goods in question are dissimilar.
25      Since the Board of Appeal did not carry out a specific assessment of the similarity of the goods in question and it is not the Court’s role to assess for the first time questions which have not been examined by the Board of Appeal (see, to that effect, judgment of 2 December 2020, Monster Energy v EUIPO – Nanjing aisiyou Clothing (Representation of a scratch), T‑35/20, not published, EU:T:2020:579, paragraph 93), the examination of the present action must take into account the assumption of identical goods on which the Board of Appeal based its decision.
The comparison of the signs at issue
26      The global assessment of the likelihood of confusion, so far as the visual, phonetic or conceptual similarity of the signs at issue are concerned, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
The distinctive and dominant components of the marks at issue
27      The Board of Appeal found that the two single word elements ‘clenosan’ and ‘serosan’, each taken as a whole, had no apparent meaning in relation to the goods in question. The Board of Appeal therefore considered that the relevant public would perceive the marks at issue as a whole and would regard them as fanciful terms, which, again, was the most favourable approach for the applicant. Based on those considerations, the Board of Appeal found that the degree of distinctiveness of the marks was average.
28      There is no need to call into question the approach thus adopted by the Board of Appeal, which is in any case not disputed by the applicant.
The visual, phonetic and conceptual similarities
29      In paragraph 58 of the contested decision, the Board of Appeal found that the signs at issue were visually and phonetically similar to a below-average degree. In paragraph 59 of that decision, it found that the conceptual comparison was neutral or impossible, given that the signs had no meaning for the relevant public.
30      In that regard, there is no need to call into question the Board of Appeal’s assessment of the conceptual similarity of the signs, which is in any case not disputed by the applicant.
31      However, the applicant does dispute the assessments of the visual and phonetic similarities, which it considers to be high.
32      EUIPO and the intervener dispute the applicant’s arguments.
33      In the first place, the applicant expresses the view that the Board of Appeal did not take sufficient account of the global similarity resulting from the overall impression. The Board of Appeal thus placed undue emphasis, in particular, on the initial parts of the signs at issue.
34      In that regard, contrary to what the applicant alleges, it is clear from paragraphs 55 and 57 of the contested decision that the Board of Appeal did consider the overall impression produced by the signs. In so doing, it did not simply analyse the initial parts of the signs with the intention that they alone would determine the degree of similarity. On the contrary, it also noted differences in the middle of the signs in connection with the letters ‘n’ and ‘r’. Therefore, the applicant cannot justifiably maintain that the Board of Appeal’s assessment was based on an overemphasis of differences in the initial parts of the signs at issue.
35      In the second place, in terms of the visual aspect, the applicant submits in essence that insufficient account was taken of certain similarities resulting from the number of letters and the orthographical configuration of the signs at issue.
36      In that regard, first, it is sufficient to note, as EUIPO observes, that the similar number of letters making up the two signs does not, in itself, have any particular importance for the public targeted by those marks. Since the alphabet is made up of a limited number of letters, which, moreover, are not all used with the same frequency, it is inevitable that many words will have the same number of letters and even share some of them, but they cannot, for that reason alone, be regarded as visually similar. Furthermore, the public is not, in general, aware of the exact number of letters in a word mark and, consequently, will not notice, in the majority of cases, that two marks at issue have the same number of letters (see judgment of 26 March 2020, Conlance v EUIPO – LG Electronics (SONANCE), T‑343/19, not published, EU:T:2020:124, paragraph 41 and the case-law cited).
37      Secondly, as the intervener notes in essence, the fact that five letters appear in the same position in the two signs at issue does not, in itself, confer on them a particular degree of similarity (see, to that effect, judgments of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 52 and the case-law cited, and of 1 June 2022, Krasnyj Octyabr v EUIPO – Pokój (Pokój TRADYCJA JAKOŚĆ KRÓWKA SŁODKIE CHWILE Z DZIECIŃSTWA TRADYCYJNA RECEPTURA), T‑355/20, not published, EU:T:2022:320, paragraph 65 and the case-law cited). As the degree of visual similarity is based on the overall impression, it must be held that the similarities in orthographical configuration are not, in the present case, such as to counterbalance the significant differences noted by the Board of Appeal. As the Board of Appeal rightly found, the visual contrast between the initial letters ‘cl’ and ‘s’ was particularly prominent and immediately noticeable. In the same way, the Board of Appeal rightly pointed out that the difference between the letters ‘n’ and ‘r’ in the middle of the signs further contributed to the visual difference between them.
38      Consequently, the Board of Appeal did not commit any error of assessment in finding that the degree of visual similarity was below average.
39      In the third place, in terms of the phonetic aspect, the applicant puts forward three arguments.
40      First of all, it submits that the signs at issue coincide in two out of their three syllables.
41      In that regard, as both EUIPO and the intervener point out, it must be held that the signs coincide in only one syllable out of three, that being the syllable ‘san’. The preceding syllable, being ‘ro’ in the sign applied for and ‘no’ in the earlier sign, differs between them. The applicant’s argument is therefore factually inaccurate.
42      Next, the applicant submits that the common final element ‘osan’ is particularly significant because of its length and its rhythm.
43      It must be noted from the outset that the common final element ‘osan’ only constitutes approximately one half of the signs at issue. What is more, since the analysis of the degree of similarity must be based on the assessment of the overall impression, the length and rhythm of one common element do not necessarily lead to a particular degree of phonetic similarity. Phonetic differences, even those resulting from the presence of shorter elements, may, where applicable, have the effect of reducing the impression of phonetic similarity between the signs at issue (see, to that effect and by analogy, judgment of 11 December 2013, Eckes-Granini v OHIM – Panini (PANINI), T‑487/12, not published, EU:T:2013:637, paragraph 52). In the present case, it must be held that the marked difference in pronunciation between the initial parts ‘clen’ and ‘ser’ reduces the similarity resulting from the common final element ‘osan’. Therefore, the applicant’s argument does not call into question the assessment made by the Board of Appeal.
44      Lastly, the applicant submits that the vowel pattern in the signs further enhances their phonetic similarity.
45      In that regard, it is true that the vowel pattern in the signs at issue is identical. However, in the present case, that fact is not such as to counterbalance the significant differences noted by the Board of Appeal. The Board of Appeal correctly found that the earlier mark began with a consonant cluster, namely ‘cl’, pronounced with a sharp, forceful onset, whereas the mark applied for began with the single consonant ‘s’, followed by a soft vowel, producing a smoother, more flowing sound. In the same way, the Board of Appeal was correct to find, in essence, that the letters ‘n’ and ‘r’ in the middle of the signs created different phonetic impressions, the first giving rise to a smooth and steady flow and the second producing a quicker sound which, in Spanish, was also slightly rolled.
46      Consequently, the Board of Appeal did not commit any error of assessment in finding that the degree of phonetic similarity of the signs at issue was below average.
The distinctive character of the earlier mark
47      In paragraph 62 of the contested decision, the Board of Appeal found that the inherent distinctive character of the earlier mark was average.
48      There is no need to call into question that assessment, which is in any case not disputed by the applicant.
The global assessment of the likelihood of confusion
49      The global assessment of the likelihood of confusion implies some interdependence between the factors taken into account, and in particular between the similarity of the trade marks and the similarity of the goods or services concerned. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
50      In the present case, in paragraphs 66 to 70 of the contested decision, the Board of Appeal found that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001, taking into account, in essence, the below-average degree of visual and phonetic similarity, the inability of the assumed identical nature of the goods to offset the prominent differences between the signs at issue and the average distinctive character of the earlier mark.
51      In the first place, the applicant alleges that ‘any reference [was] omitted [by the Board of Appeal] to the relevance of the [p]rinciple of [i]nterdependence’.
52      However, it can be seen from paragraphs 66 to 68 and 70 of the contested decision that the Board of Appeal did refer to the principle of interdependence in the context of its assessment. It was at the end of that assessment that the Board found that there was no likelihood of confusion, even when the goods were assumed to be identical.
53      In the second place, the applicant disputes the Board of Appeal’s application of the principle of interdependence. It maintains that the fact that the goods in question are identical is sufficient to warrant a finding of a likelihood of confusion.
54      It is true that, as recalled in paragraph 49 above, a lesser degree of similarity between the signs may be offset by a greater degree of similarity between the goods. However, it must be borne in mind, as EUIPO observes and as is referred to in paragraph 67 of the contested decision, that the likelihood of confusion must be assessed globally, taking into account the various relevant factors. Similarity of the goods is only one factor among others. Therefore, the applicant’s argument that, where goods are identical, there is automatically a likelihood of confusion is legally incorrect (see, to that effect, judgment of 12 June 2019, EOS Deutscher Inkasso-Dienst v EUIPO – IOS Finance EFC (IOS FINANCE), T‑583/17, not published, EU:T:2019:403, paragraph 110).
55      Furthermore, according to the case-law, a likelihood of confusion presupposes both that the two marks 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). As the conditions are cumulative, it is obvious that the mere fact that goods are identical is, in any event, insufficient to lead to a finding of a likelihood of confusion.
56      Therefore, the Board of Appeal did not infringe the principle of interdependence simply by finding that there was no likelihood of confusion despite assuming that the goods in question were identical.
57      In the third place, the applicant submits that the goods covered by the mark applied for could be perceived as a variation, development or sub-line of the goods covered by the earlier mark and therefore that they could be thought to come from the same or economically linked undertakings. It bases its arguments on the common final element of the two marks at issue, claiming that the use of identical suffixes within the same brand family is a common practice across various sectors.
58      In that regard, under Article 8(1)(b) of Regulation 2017/1001, the likelihood of confusion includes the likelihood of association with the earlier mark. It therefore also covers situations in which the public does not merely confuse the marks directly but attributes the same commercial origin to them (judgment of 27 April 2022, Vintae Luxury Wine Specialists v EUIPO – R. Lopez de Heredia Viña Tondonia (LOPEZ DE HARO), T‑210/21, not published, EU:T:2022:244, paragraph 53).
59      The applicant does not explain how the common final element ‘osan’ would, in the present case, be perceived as a commercial practice suggesting sub-lines emanating from the same commercial origin. The mere presence of common final elements is insufficient to lead to a finding of a risk of association.
60      Therefore, the Board of Appeal did not misconstrue the scope of Article 8(1)(b) of Regulation 2017/1001 when it found that there was no likelihood of confusion and, similarly, no likelihood of association.
61      In the light of all the foregoing considerations, the single plea in law must be rejected and, consequently, the action must be dismissed in its entirety without there being any need to rule on the arguments put forward by EUIPO and the intervener in connection with the applicant’s second head of claim seeking the rejection of the application for registration.
Costs
62      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.
63      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 latter. By contrast, since EUIPO applied for the applicant to be ordered to pay the costs only in the event of a hearing being convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Ionfarma, SL, to bear its own costs and to pay those incurred by Vision Healthcare BV;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Kecsmár
Nihoul
Truchot
Delivered in open court in Luxembourg on 15 April 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.