JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
25 June 2020 (*)
(EU trade mark — Opposition proceedings — International registration designating the European Union — Word mark NOSTER — Earlier EU word mark FOSTER — Relative ground for refusal — Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑550/19,
Nitto Pharmaceutical Industries Ltd, established in Kyoto (Japan), represented by P. Voutilainen, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by L. Rampini, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Chiesi Farmaceutici SpA, established in Parma (Italy), represented by C. de
Callataÿ and T. de Haan, lawyers,
ACTION brought against the decision of the Fifth Board of Appeal of EUIPO of 13 May 2019 (Case R 2279/2018-5), relating to opposition proceedings between
Chiesi Farmaceutici and Nitto Pharmaceutical Industries,
THE GENERAL COURT (Sixth Chamber),
composed of A. Marcoulli, President, S. Frimodt Nielsen and R. Norkus (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 1 August 2019,
having regard to the response of EUIPO lodged at the Court Registry on 7 November 2019,
having regard to the response of the intervener lodged at the Court Registry on 8 November 2019,
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
Background to the dispute
1        On 7 June 2016, the applicant, Nitto Pharmaceutical Industries Ltd, filed with the European Union Intellectual Property Office (EUIPO) an application for protection within the European Union of international registration No 1332950 of 7 June 2016 in respect of the word mark NOSTER, pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1)).
2        The goods in respect of which the protection of that mark was sought are 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, and correspond to the following description: ‘Pharmaceutical preparations; reagent paper for medical purposes; oiled paper for medical purposes; wrapping wafers for medicine doses; gauze for dressings; empty capsules for pharmaceuticals; eyepatches for medical purposes; ear bandages; menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties; absorbent cotton; adhesive plasters; bandages for dressings; liquid bandages; breast-nursing pads; cotton swabs for medical use; dental materials; dietary supplements for humans; dietetic beverages adapted for medical purposes; dietetic food adapted for medical purposes; beverages for babies; food for babies; dietary supplements for animals’.
3        The particulars of the international registration,
which are set out in Article 152(1) of Regulation No 207/2009 (now Article 190(1) of Regulation 2017/1001), were published in European Union Trade Marks Bulletin
No 43/2017 of 3 March 2017.
4        On 28 June 2017, the intervener, Chiesi Farmaceutici SpA, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to the application for protection of the international registration in respect of the goods referred to in paragraph 2 above.
5        The opposition was based on the earlier EU word mark FOSTER,
covering
‘pharmaceutical preparations and substances; pharmaceutical products for treating respiratory diseases’ in Class 5, and was directed against all the goods covered by the application for protection. The grounds were those set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001).
6        On 26 September 2018, the Opposition Division rejected the opposition on the ground that there was no likelihood of confusion.
7        On 21 November 2018, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
8        By decision of 13 May 2019 (‘the contested decision’), the Fifth Board of Appeal of EUIPO upheld the appeal as regards ‘pharmaceutical preparations; reagent paper for medical purposes; oiled paper for medical purposes; gauze for dressings; eyepatches for medical purposes; ear bandages; menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties; absorbent cotton; adhesive plasters; bandages for dressings; liquid bandages; cotton swabs for medical use; dental materials; dietary supplements for humans; dietetic beverages adapted for medical purposes; dietetic food adapted for medical purposes; beverages for babies; food for babies; dietary supplements for animals’ on the ground that it could not be excluded that, with regard to
those goods, which were identical or similar to varying degrees to those covered by the earlier mark, the relevant public would not confuse the marks, including believing that the goods originated from the same undertaking or from economically
related undertakings (paragraphs 50 and 52 of that decision).
Forms of order sought
9        The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
10      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
11      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs incurred before the Board of Appeal and before the Court.
Law
12      In support of its action, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001.
13      The applicant submits that the Board of Appeal was wrong in its assessment of the similarity between some of the goods in question, namely, on the one hand, ‘menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties’ and, on the other hand, ‘pharmaceutical preparations and substances’. It maintains that the goods are dissimilar and that no likelihood of confusion exists.
14      EUIPO and the intervener dispute 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. According to the same case-law, 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).
17      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).
18      It is in the light of those considerations that the present action must be examined.
The relevant public
19      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods or services concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
20      In the present case, the Board of Appeal stated, in paragraph 17 of the contested decision, that it would, like the Opposition Division, take into account the perception of the signs on the part of the Polish- or German-speaking public which did not speak English, Danish or Swedish as a foreign language, a choice which has not been disputed by the parties.
21      Furthermore, the Board of Appeal found, in paragraph 20 of the contested decision, that the Opposition Division had been right in finding that the goods at issue were aimed both at the general public and at consumers who were professionals. In the same paragraph, it pointed out that it was apparent from the case-law that the relevant public’s level of attention would be at least above average in relation to the goods in Class 5, which might affect the end consumer’s state of health or were necessary for his or her well-being. It found that, in relation to the remaining part of the goods, ‘such as “sanitary napkins; sanitary panties; absorbent cotton; adhesive plasters”’, the relevant public would display an average degree of attention.
22      The applicant disputes that finding on the part of the Board of Appeal and refers to the case-law according to which
the relevant public’s level of attention is relatively high so far as pharmaceutical preparations are concerned (judgment of 15 March 2012, Cadila Healthcare v OHIM — Novartis (ZYDUS), T‑288/08, not published, EU:T:2012:124, paragraph 36).
23      In the present case, it must be stated that the judgment to which the applicant refers, according to which the relevant public’s level of attention is relatively high so far as pharmaceutical preparations are concerned, is not inconsistent with the conclusion which the Board of Appeal arrived at.
24      As has just been pointed out, the Board of Appeal clearly stated, in paragraph 20 of the contested decision, that the relevant public’s level of attention would be at least above average in relation to the goods in Class 5, which might affect the end consumer’s state of health or were necessary for his or her well-being.
25      In any event, it must be stated that the applicant bases the present action on an alleged error of assessment on the part of the Board of Appeal solely as regards the likelihood of confusion in relation to ‘menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties’.
26      However, the goods in question, as the applicant itself points out in the context of the comparison of the goods at issue, are not pharmaceutical preparations (see paragraph 30 below). The reference which the applicant makes to the case-law relating to pharmaceutical preparations is not therefore relevant.
27      Furthermore, the Board of Appeal found that, as regards goods ‘such’ as ‘sanitary napkins; sanitary panties; absorbent cotton; adhesive plaster’, the relevant public would display an average degree of attention. The applicant does not contradict that assessment and likewise does not claim that that list, with regard to which the phrase ‘such as’ indicates that the list is not exclusive, does not also include the other goods on which it bases the present action, namely ‘menstruation bandages’ and ‘menstruation tampons’. There is no reason to think that the two latter products would give rise to a different level of attention.
28      The applicant’s argument alleging that there was an error in the assessment of the relevant public’s level of attention must therefore be rejected.
The comparison of the goods
29      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services 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 (see 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 and the case-law cited).
30      The applicant submits that the Board of Appeal made an error of assessment regarding the similarity of some of the goods at issue. It argues that ‘menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties’ are used by women during their menstruation, which, since it is not a human health problem, is not treated with pharmaceutical preparations and substances, whereas ‘pharmaceutical preparations and substances’ are mainly chemical or other compounds which are intended to treat health issues. Furthermore, it maintains that ‘menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties’ are daily consumer goods, which are sold mainly in general retail stores and groceries, unlike ‘pharmaceutical preparations and substances’, which are mainly sold in pharmacies.
31      In that regard, it must be pointed out that, in paragraph 31 of the contested decision, the Board of Appeal found that there was a very low degree of similarity between the goods in question.
32      Next, it must also be pointed out that the goods covered by the mark applied for to which the applicant refers are all hygiene products.
33      However, it must be borne in mind that hygiene products are marketed both in supermarkets and in pharmacies (see, to that effect, judgment of 7 September 2006, Meric v OHIM — Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, EU:T:2006:247, paragraph 37). Furthermore, it is well known that a large number of pharmacies sell hygiene products such as dental solutions, toothpaste, toothbrushes, children’s napkins, body lotion, and so forth, and also
hygienic diapers. The great majority of consumers buy them in a pharmacy, when hardware stores or supermarkets are closed or inaccessible. The Board of Appeal was, consequently, entitled to consider that pharmacies not only sold medicine, but also
hygienic diapers (see, to that effect, judgment of 16 October 2014, Novartis v OHIM — Tenimenti Angelini (LINEX), T‑444/12, not published, EU:T:2014:886, paragraph 34). In the latter case, it was thus held that there was some degree of similarity, albeit a very low degree of similarity, between hygienic diapers and pharmaceutical preparations (judgment of 16 October 2014, LINEX, T‑444/12, not published, EU:T:2014:886, paragraph 58).
34      The Board of Appeal was therefore right in finding, after having, moreover, referred to the judgment of 16 October 2014, LINEX (T‑444/12, not published, EU:T:2014:886), that there was a very low degree of similarity between ‘menstruation bandages; menstruation tampons; sanitary napkins; sanitary panties’ and ‘pharmaceutical preparations and substances’.
35      The applicant’s argument alleging that there was an error in the comparison of the goods must therefore be rejected.
The comparison of the signs
36      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
37      It must be pointed out at the outset that the applicant submits that the Board of Appeal should not have cut the element ‘oster’ out of the overall impression created by the signs, but carried out a proper and genuine comparison between the earlier word mark FOSTER and the word sign NOSTER in respect of which protection in the European Union was sought.
38      In that regard, it must be stated, as regards the visual comparison of the signs at issue, that the Board of Appeal did not cut the element ‘oster’ out, but found that those signs consisted of the same number of letters, in the same order, except for the first letter of each sign. Likewise, as regards the phonetic comparison, the Board of Appeal did not cut that element out of the overall impression created by those signs, but pointed out that, from a phonetic standpoint, the group of letters ‘oster’ would be pronounced in the same way, irrespective of the different rules of pronunciation which might apply in different parts of the relevant territory.
The visual similarity
39      The Board of Appeal pointed out, in paragraph 36 of the contested decision, that the signs at issue consisted of six letters, five of which were identical and in the same order, except for the first letters ‘f’ and ‘n’ respectively. It therefore found that those signs had an identical nature and length and a similar composition. It concluded that, as the initial part of those signs might be liable, according to the case-law, to attract the consumer’s attention more than the following parts, those signs were similar to an average degree.
40      The applicant disputes that assessment on the part of the Board of Appeal. It submits that the signs at issue are not visually similar, even to a low degree, because they must be compared as a whole and not by dissecting them into pieces and comparing only those elements that have been cut apart. It argues that those signs are not similar because the first letters are strikingly different consonants and the relevant public, which is highly attentive, will notice that difference and be able to distinguish those signs.
41      In that regard, it should be borne in mind that what matters, above all, in the assessment of the visual similarity of two word marks is the presence, in each of them, of several letters in the same order (see judgment of 27 February 2020, Knaus Tabbert v EUIPO — Carado (CaraTwo), T‑203/19, not published, EU:T:2020:76, paragraph 54 and the case-law cited).
42      It is true that, according to the case-law, consumers, in general, pay more attention to the first part of a mark than to its ending (see
judgment of 27 February 2020, CaraTwo, T‑203/19, not published, EU:T:2020:76, paragraph 55 and the case-law cited).
43      However, in the present case, it must be stated that the signs at issue consist of six letters, the last five of which are identical and in the same order.
44      In that regard, it must be pointed out that it has been held, with regard to the figurative marks KITANA and GITANA, that, where the last five of the six letters of which the signs consisted were identical,
the difference in the first letter of each sign was not sufficient to lessen the similarity between all the other letters of those signs, which constituted the largest part of those signs. In such circumstances, it had to be held that those signs were visually similar (judgment of 16 September 2013, Gitana v OHIM — Teddy (GITANA), T‑569/11, not published, EU:T:2013:462, paragraph 58).
45      Likewise, according to the Court, the existence of a degree of similarity between the word marks NORVIR and SORVIR could not be denied, in the light, first, of the visual impression given by the element ‘orvir’, which, since it consisted of five letters common to those marks, constituted the major part of those marks and, secondly, of the pronunciation of that element, which was identical in those marks (judgment of 13 September 2010, Abbott Laboratories v OHIM — aRigen (Sorvir), T‑149/08, not published, EU:T:2010:398, paragraph 33). In the present case, it must be held that the same visual impression of similarity between the signs at issue is created by the group of letters ‘oster’.
46      Lastly, the Court has stated, with regard to the comparison between the word marks XENTEO and PENTEO, that
the difference in the first letter of each sign was not enough to lessen the similarity between those
marks in respect of all the other letters making up the majority of the marks and that it therefore had to be held that those marks were visually similar (judgment of 22 May 2012, Aitic Penteo v OHIM — Atos Worldline (PENTEO), T‑585/10, not published, EU:T:2012:251, paragraph 67). Similarly, in the present case, the difference in the first letters of the signs at issue cannot suffice to lessen the similarity between all the other letters of which they consist.
47      Furthermore, it must be observed out that neither of the signs at issue contains any additional word or figurative element which is capable of constituting a distinguishing feature that is sufficient to preclude any visual similarity.
Moreover, it must be pointed out that, in the case which gave rise to the judgment of
16 September 2013, GITANA (T‑569/11, not published, EU:T:2013:462), even the presence of a figurative element in each of the marks at issue and the fact that those marks differed in their first letters, which were written in larger characters (judgment of 16 September 2013, GITANA, T‑569/11, not published, EU:T:2013:462, paragraph 58), was held to be insufficient to lessen the visual similarity resulting from the identity of the last five of the six letters of which the marks at issue consisted.
48      The Board of Appeal was therefore right in finding that there is an average degree of visual similarity.
The phonetic similarity
49      The Board of Appeal found, in paragraph 38 of the contested decision, that the considerations set out in paragraph 37 of that decision regarding the visual similarity applied, mutatis mutandis, to the phonetic comparison. It took the view that, irrespective of the different rules of pronunciation prevailing in different parts of the relevant territory, the signs at issue were the same in length and would be pronounced in two syllables. It found that their pronunciation coincided in the sound of the group of letters ‘oster’, the only difference being their initial consonants. It took the view that
those signs were therefore phonetically similar to an average degree.
50      The applicant disputes that assessment on the part of the Board of Appeal for the same reasons as those set out with regard to the question of the visual similarity. Furthermore, it submits that any similarity does not automatically result in a likelihood of confusion and refers, in that regard, to the judgment of 5 December 2013, Grebenshikova v OHIM — Volvo Trademark (SOLVO) (T‑394/10, not published, EU:T:2013:627, paragraph 24).
51      In that regard, it must be pointed out that the case-law referred to in paragraph 41 et seq. above, relating to the visual comparison of the signs, also applies to the phonetic comparison of the signs (see, to that effect, judgment of 22 May 2012, PENTEO, T‑585/10, not published, EU:T:2012:251, paragraph 68).
52      In particular, the pronunciation, which is identical in the signs at issue, of the group of letters ‘oster’ (see, to that effect, judgment of 13 September 2010, Sorvir, T‑149/08, not published, EU:T:2010:398, paragraph 33), cannot be lessened by the difference in pronunciation as regards the first letter (see, to that effect, judgment of 22 May 2012, PENTEO, T‑585/10, not published, EU:T:2012:251, paragraph 69).
53      Consequently, the Board of Appeal’s finding in paragraph 38 of the contested decision (see paragraph 49 above) must be upheld.
54      That finding cannot be called into question by the case-law to which the applicant refers, namely the judgment of 5 December 2013, SOLVO (T‑394/10, not published, EU:T:2013:627). In the case which gave rise to that judgment, even though what was involved was a comparison between a word mark and a figurative mark, the signs with regard to which marks included four identical letters out of five, in the same order, the Court held that there was a degree of similarity between those signs, in view of the identical pronunciation to which a very large part of each of those signs gave rise, namely four of their five letters (judgment of 5 December 2013, SOLVO, T‑394/10, not published, EU:T:2013:627, paragraph 24).
55      The Board of Appeal was therefore right in finding that there is an average degree of phonetic similarity.
The conceptual similarity
56      The Board of Appeal found, in paragraph 39 of the contested decision, that neither of the signs at issue had a meaning from the perspective of the Polish- and German-speaking public which did not speak English, Danish or Swedish as a foreign language. It took the view that those signs had no concept in common and that the conceptual comparison remained neutral.
57      The applicant submits that, since a conceptual comparison is not possible, the conceptual aspect does not influence the assessment of the similarity of the signs at issue.
58      In that regard, it must be pointed out that, although it is expressed in different terms, both the Board of Appeal and the applicant reach the same conclusion that a conceptual comparison is not possible. Moreover, there is nothing in the case file that makes it possible to call such an assessment into question.
59      In view of all of the foregoing, it must be held that the signs at issue are visually and phonetically similar to a degree which must be categorised as average and that a conceptual comparison is not possible.
The global assessment of the likelihood of confusion
60      It must be borne in mind that a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM — Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
61      The Board of Appeal found, as regards goods such as those on which the applicant bases the present action (see paragraph 27 above), that, having regard to the very low degree of similarity between those goods and ‘pharmaceutical preparations and substances’ and the average degree of similarity found to exist between the signs at issue, and taking into account the principles of interdependence and imperfect recollection, it could not be excluded that the relevant public would not confuse the marks, including believing that the goods originated from the same undertaking or from economically
linked undertakings (paragraph 50 of the contested decision).
62      The applicant disputes that finding on the part of the Board of Appeal. First, it submits that the phonetic aspect is less important in the case of goods which are marketed in such a way that, when making a purchase, the relevant public usually perceives the mark designating those goods visually. It argues that, in those circumstances, that public will reasonably take into account the difference in their first letters, especially since the letters ‘n’ and ‘f’ are very different. Secondly, the applicant takes the view that the Board of Appeal should have carried out a full and specific examination of the facts, rather than making abstract and indefinite findings. It submits that the Board of Appeal should not have been satisfied with expressions such as ‘that it cannot be excluded’ for the purpose of finding that there was a likelihood of confusion.
63      As regards the applicant’s first argument, in so far as it submits that the phonetic aspect is less important in the case of marks which are mainly perceived visually at the time of purchase, it must, in any event, be pointed out that it is possible that mere visual similarity between trade marks may create a likelihood of confusion (see, to that effect, judgment of 12 December 2014, Ludwig Schokolade v OHIM — Immergut (TrinkFix), T‑105/13, not published, EU:T:2014:1070, paragraph 141 and the case-law cited). It has been pointed out in paragraph 48 above that the signs at issue are visually similar to an average degree, which is sufficient to reject that argument on the part of the applicant.
64      Secondly, as regards the applicant’s argument that the Board of Appeal should not have been satisfied with expressions such as ‘that it cannot be excluded’ for the purpose of finding that there was a likelihood of confusion, as has been pointed out in paragraph 16 above, 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.
65      The Board of Appeal did not therefore have to prove that there was an absolute certainty, but merely to show that there was a ‘risk’ that consumers may believe that the goods or services in question come from the same undertaking or from economically
linked undertakings.
66      It is apparent from the foregoing findings that, first, the signs at issue are visually and phonetically similar to an average degree and, secondly, that there is, as regards the goods on which the applicant bases the present action, similarity, albeit very low in degree.
67      Furthermore, the applicant does not dispute that, with regard to the goods at issue, the relevant public will display only an average level of attention.
68      Consequently, taking into account the relevant public and its level of attention, it must be held that the Board of Appeal was right in finding that such a public could confuse the marks at issue, including by thinking that those goods come from the same undertaking or from economically
linked undertakings.
69      It follows that the applicant’s single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001 must be rejected as unfounded and, in consequence, that the action must be dismissed.
Costs
70      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.
71      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
72      As regards the costs which the intervener incurred before the Board of Appeal, it is sufficient to point out that, since the present judgment is dismissing the action brought against the contested decision, it is the operative part in the contested decision which continues to determine the costs in question (see, to that effect, judgment of 28 February 2019, Lotte v EUIPO — Générale Biscuit-Glico France (PEPERO original), T‑459/18, not published, EU:T:2019:119, paragraph 74).
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Nitto Pharmaceutical Industries Ltd to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by Chiesi Farmaceutici SpA.
Marcoulli
Frimodt Nielsen
Norkus
Delivered in open court in Luxembourg on 25 June 2020.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.