ORDER OF THE GENERAL COURT (Ninth Chamber)
12 September 2022 (*)
(EU trade mark – Opposition proceedings – Application for EU figurative mark TRAUMGEL – Earlier EU word mark Traumeel – Relative ground for refusal – No likelihood of confusion – No similarity of the goods – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001) – Action manifestly lacking any foundation in law)
In Case T‑130/22,
Biologische Heilmittel Heel GmbH, established in Baden-Baden (Germany), represented by J. Künzel, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Ringelhann and J. Ivanauskas, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Esi Srl, established in Albisola Superiore (Italy),
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira, President, M. Kancheva (Rapporteur) and P. Zilgalvis, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
makes the following
Order
1        By its action under Article 263 TFEU, the applicant, Biologische Heilmittel Heel GmbH, seeks the partial annulment and partial alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 20 December 2021 (Case R 813/2021-4) (‘the contested decision’).
Background to the dispute
2        On 26 January 2017, the legal predecessor of the other party to the proceedings before the Board of Appeal of EUIPO, Esi Srl, filed with EUIPO, 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 and 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), an application for registration as an EU trade mark of the following figurative sign:
3        The mark applied for covered goods in Classes 3 and 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, for each of those classes, to the following description:
–        Class 3: ‘Moisturising gels [cosmetic]; Body gels; Hand gels; Gels for cosmetic use; Face gels; Cosmetics in the form of gels; Massage gels, other than for medical purposes; Aloe vera gel for cosmetic purposes; Massage gels, other than for medical purposes; Non-medicated creams; Dermatological creams [other than medicated]; Skin moisturisers; Skin emollients; Skin conditioner’;
–        Class 5: ‘Dietary supplements and dietetic preparations’.
4        On 19 December 2017, the applicant filed a notice of opposition, pursuant to Article 46 of Regulation 2017/1001, to the registration of the trade mark applied for in respect of all the goods referred to in paragraph 3 above.
5        The opposition was based on the earlier EU word mark Traumeel, registered on 13 February 2001, under number 1454420, for goods in Class 5 and corresponding to the following description: ‘Pharmaceutical, veterinary and sanitary substances; infants’ and invalids’ foods; plasters, material for bandaging; material for stopping teeth, dental wax; disinfectants; preparations for killing weeds and destroying vermin’.
6        The ground relied upon in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.
7        Following the request made on 26 March 2019 by the other party to the proceedings before the Board of Appeal of EUIPO, the latter requested the applicant to furnish proof of genuine use of the earlier mark relied on in support of the opposition. The applicant complied with that request within the period prescribed.
8        On 6 April 2021, the Opposition Division rejected the opposition in its entirety, on the ground that there was no likelihood of confusion.
9        On 6 May 2021, the applicant filed an appeal with EUIPO, under Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
10      By the contested decision, the Fourth Board of Appeal partially upheld the appeal for the ‘massage gels, other than for medical purposes’ and the ‘dietary supplements and dietetic preparations’ in, Classes 3 and 5, respectively. According to the Board of Appeal, first of all, proof of genuine use of the earlier trade mark was effectively provided for the relevant period of 26 January 2012 to 25 January 2017, but only for ‘pharmaceutical and veterinary substances, namely for the treatment of pain, injuries and other disorders and prevention of degeneration of the musculoskeletal system’, which constitute a specific subcategory of the goods covered by the earlier mark, namely ‘pharmaceutical and veterinary substances’, in Class 5, for which the earlier mark is deemed to be registered for the purpose of the opposition proceedings.
11      Next, after having concluded that the relevant German-speaking public for the goods at issue consisted of the general public and professionals, the Board of Appeal found that ‘massage gels, other than for medical purposes’ and ‘dietary supplements and dietetic preparations’ covered by the mark applied for and falling within Classes 3 and 5, respectively, were, in view of their specific purpose, similar to an average degree to the goods covered by the earlier mark.
12      Last, as regards the comparison of the marks at issue, the Board of Appeal found that there was a high level of visual and aural similarity between them. By contrast, the conceptual comparison was assessed as neutral, given the lack of clear meaning of the marks at issue for the relevant German-speaking public.
13      Therefore, for goods considered to be similar to an average degree, as referred to in paragraph 11 above, having regard the high level of visual and aural similarity between the marks at issue and the normal distinctiveness of the earlier mark, the Board of Appeal concluded that there was a likelihood of confusion for the relevant German-speaking public, even taking into consideration a higher level of attention of that public. The validity of the registration of the mark applied for was confirmed with regard to all the other goods in Class 3, which were different from the goods covered by the earlier mark and which, considering their nature and purpose, were neither in competition with, nor complementary to, those goods.
Forms of order sought
14      The applicant claims, in essence, that the Court should:
–        annul the contested decision in part, in so far as concerns the goods in Class 3 except for ‘massage gels, other than for medical purposes’;
–        alter the contested decision in part, so as to prevent the registration of the mark applied for in respect of all the goods covered by that mark and annul the decision of the Opposition Division in its entirety;
–        order the other party to the proceedings before EUIPO to pay the costs.
15      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
16      Under Article 126 of the Rules of Procedure of the General Court, where an action is manifestly lacking any foundation in law, the General Court may, on a proposal from the Judge-Rapporteur, at any time, decide to give a decision by reasoned order without taking further steps in the proceedings.
17      In the present case, the Court, taking the view that it has sufficient information from the documents before it, has decided, pursuant to Article 126 of the Rules of Procedure, to give a decision without taking further steps in the proceedings, even though one of the parties – in this case, the applicant – has requested a hearing (see, to that effect, judgment of 6 June 2018, Apcoa Parking Holdings v EUIPO, C‑32/17 P, not published, EU:C:2018:396, paragraphs 22 to 24, and order of 21 December 2021, Kewazo v EUIPO (Liftbot), T‑205/21, not published, EU:T:2021:953, paragraph 10).
18      Having regard to the date on which the application for registration at issue was filed, namely 26 January 2017, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM, C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 2 and the case-law cited). Furthermore, since, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the present dispute is governed by the procedural provisions of Regulation 2017/1001.
19      Accordingly, in the present case, as regards the substantive rules, the references made to Article 8(1)(b) of Regulation 2017/1001 must be understood as referring to Article 8(1)(b) of Regulation No 207/2009, as amended, the content of which is identical.
20      In support of its action, the applicant raises, in essence, a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
21      As a preliminary point, it should be noted that the applicant expressly states that it does not challenge the Board of Appeal’s assessments relating to the proof of genuine use of the earlier mark and the determination of the subcategory of goods for which it is deemed to be registered, as is specified in paragraph 10 above. Similarly, the applicant states that it agrees with the Board of Appeal’s finding concerning the high degree of visual and aural similarity between the marks at issue, recalled in paragraph 12 above.
22      Likewise, it is apparent from the applicant’s written pleadings that it does not challenge the determination of the relevant public or that of its level of attention nor does it not call into question the finding that the goods at issue are not in competition with each other.
23      Moreover, the applicant does not put forward any argument with regard to the Board of Appeal’s assessment regarding the impossibility of carrying out an analysis of the conceptual similarity between the marks at issue or the assessment of the earlier mark as having a normal distinctive character.
24      Furthermore, like EUIPO, the Court notes that the applicant does not challenge the Board of Appeal’s finding that the goods at issue have a different nature and purpose, given that the goods covered by the earlier mark are intended for the medical treatment of the musculoskeletal system, whereas the goods covered by the mark applied for are meant for cosmetic skin care.
25      As those assessments of the Board of Appeal are not challenged by the applicant, they are not the subject of the present dispute and, consequently, cannot be called into question.
26      By its single plea in law, divided into three complaints, the applicant challenges, in essence, the Board of Appeal’s assessment, set out in paragraph 34 of the contested decision, finding the goods covered by the mark applied for and falling within Class 3, as are listed in paragraph 3 above, with the exception of ‘massage gels, other than for medical purposes’, to be different from the goods covered by the earlier mark and not complementary to them. According to the applicant, there is at least a sufficient degree of similarity between the goods at issue on account of, first, their complementarity, second, their being sold in the same places and, third, the fact that companies that manufacture or sell ‘care products for the bodies of the users’ invest both in cosmetic and pharmaceutical products.
27      EUIPO challenges the applicant’s arguments.
28      In that regard, it should be recalled that, according to Article 8(1)(b) of Regulation No 207/2009, 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 mark.
29      The risk that the public might 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).
30      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, 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).
31      In assessing the similarity of the goods or services concerned, all the relevant factors relating to those goods or services themselves should be taken into account. Those factors include, inter alia, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23). Other factors may also be taken into account, such as the distribution channels of the goods concerned (judgment of 13 February 2014, Demon International v OHIM – Big Line (DEMON), T‑380/12, not published, EU:T:2014:76, paragraph 36 and the case-law cited).
32      Goods or services which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods or provision of those services lies with the same undertaking (see judgment of 22 January 2009, easyHotel, T‑316/07, EU:T:2009:14, paragraphs 57 and 58 and the case-law cited).
33      It is apparent from settled case-law that goods or services must be capable of being used together, by the same public, to be capable of being classified as complementary. However, the fact that consumers regard a product as a complement of or accessory to another is not sufficient for them to believe that those products have the same commercial origin. For that to be the case, consumers would also have to consider it usual for those products to be sold under the same trade mark, which normally implies that a large number of producers or distributors of those products are the same (see, to that effect, judgments of 13 February 2014, DEMON, T‑380/12, not published, EU:T:2014:76, paragraph 37 and the case-law cited, and of 9 July 2015, Nanu-Nana Joachim Hoepp v OHIM – Vincci Hoteles (NANU), T‑89/11, not published, EU:T:2015:479, paragraph 35 and the case-law cited).
34      Similarly, it is apparent from the judgment of 21 January 2016, Hesse v OHIM (C‑50/15 P, EU:C:2016:34, paragraphs 21 and 23), that, first, each criterion developed by the case-law to assess the similarity between the goods and services is only one criterion among others, second, the criteria are autonomous and, third, the similarity between the goods or services at issue may be based on a single criterion. Furthermore, if EUIPO must take into account all the relevant factors relating to those goods, it may disregard those factors which are not relevant to the relationship between them (see judgment of 23 November 2011, Pukka Luggage v OHIM – Azpiroz Arruti (PUKKA), T‑483/10, not published, EU:T:2011:692, paragraph 28 and the case-law cited).
35      In the present case, in the first place, as regards the first complaint relating to the alleged complementarity of the goods at issue, the applicant submits that a difference as to the nature and purpose of the goods at issue does not in itself and automatically preclude a finding of similarity between those goods, contrary to the conclusion reached in the contested decision. The applicant submits that the Board of Appeal relied excessively on the nature and purpose of the goods at issue without sufficiently taking into account other factors, such as the complementarity of those goods, and without balancing all those factors with each other.
36      The applicant argues that goods such as ‘gels for cosmetic use’ or ‘dermatological creams’ in Class 3 are products which, while they may not have a predominant medical use, may nevertheless complement the use of pharmaceutical substances in cases of pain or other disorders, especially of the skin. In support of that assertion, the applicant relies – without specifically identifying it – on EUIPO’s previous decision-making practice, according to which soap and pharmaceutical substances have been held to be of at least sufficient similarity. Likewise, the goods covered by the earlier mark are often used for dermatological conditions which may affect the appearance and purity of the skin. Therefore, the pharmaceutical substances covered by the earlier mark and the care products covered by the mark applied for are complementary in that the public perceives them as goods with an objective of cleanliness or as goods which are closely connected to the wellbeing of the skin.
37      In that regard, first of all, it should be noted that, as has already been found in paragraph 24 above, the applicant does not challenge the Board of Appeal’s finding as regards, first, the medical purpose of the goods covered by the earlier mark and, second, the lack of such a purpose of the goods covered by the mark applied for. Similarly, it must be pointed out that the applicant has not put forward any argument to explain why cosmetic products for the skin are indispensable or important for the use of medical products intended to treat problems relating to the musculoskeletal system, which lies beneath the skin. In that regard, it should be emphasised that, in accordance with the case-law, the possibility that one and the same consumer might use several products sold in a pharmacy simultaneously or by administering them in the same manner is only of minor importance to the assessment of the similarity of the goods at issue (see, to that effect, judgment of 3 February 2017, Kessel medintim v EUIPO – Janssen-Cilag (Premeno), T‑509/15, not published, EU:T:2017:60, paragraphs 65 and 66 and the case-law cited), and that is particularly true where, as in the present case, the goods at issue have specifically defined and different therapeutic or cosmetic purposes.
38      Next, the fact that, as in the present case, ‘gels for cosmetic use’ or ‘dermatological creams [other than medicated]’ can be applied via the skin simultaneously with pharmaceutical substances for the musculoskeletal system without any contraindication is not sufficient for them to be regarded as complementary within the meaning of the case-law (see, to that effect, judgment of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN), T‑331/09, EU:T:2010:520, paragraph 41 and the case-law cited). There is nothing in the description of the goods at issue to suggest that they might be interchangeable or that the use of one of them would depend in any way on that of the others, given the difference in the specific purpose of the latter. Consequently, the applicant has not shown that ‘gels for cosmetic use’, ‘dermatological creams’ or, moreover, any other good covered by the mark applied for, falling within Class 3, could complement the use of the goods of the earlier mark with the objective of cleanliness or as goods which are closely connected to the wellbeing of the skin, as the applicant maintains, having regard to the fact that the latter are not intended to act on the skin, but under the skin.
39      Furthermore, contrary to the applicant’s argument that the Board of Appeal relied excessively on the nature and purpose of the goods at issue without taking sufficient account of other factors, it should be noted that, in paragraph 33 of the contested decision, it was found that, despite the difference in nature and general purpose, the specific purpose of ‘massage gels, other than for medical purposes’, falling within Class 3, coincided with that of the goods covered by the earlier mark, that is to say, relief of muscle pain. As regards the goods in Class 5 covered by the mark applied for, in addition to their identical nature and intended purpose, the Board of Appeal found in paragraph 35 of the contested decision that they pursued the same specific objective, namely the enhancement of the musculoskeletal system. On the basis of those considerations, the Board of Appeal inter alia found that there was a likelihood of confusion for the goods found to be similar to an average degree, on account of the fact that their specific purpose coincided.
40      Therefore, it is apparent from the case-law that, in order properly to assess the similarity of goods such as those in the present case, it is necessary to have regard to other factors, in particular the purpose and specific intended use of those good, which are expressed in their respective indications (see, to that effect, judgments of 15 December 2010, TOLPOSAN, T‑331/09, EU:T:2010:520, paragraphs 35 to 37 and the case-law cited, and of 8 November 2013, Kessel v OHIM – Janssen-Cilag (Premeno), T‑536/10, not published, EU:T:2013:586, paragraph 45 and the case-law cited).
41      Last, it is important to point out that the applicant’s argument based on the alleged similarity by analogy between the goods at issue, which is based, first, on an unidentified decision-making practice of EUIPO concluding that pharmaceutical products and soap are similar and, second, on a resemblance between the effects on skin of the soap and cosmetic products covered by the mark applied for, which have the same purpose of bodily wellbeing, is based on a factually incorrect premiss in so far as, having regard to the foregoing, the goods covered by the mark applied for are different from the goods protected by the earlier mark. The syllogism used by the applicant cannot, therefore, apply in this case. That argument is manifestly fallacious and wrong in principle, because the mere fact that there is a similarity between two products and that one of them looks like a third product is not sufficient to permit the conclusion, by analogy, that all the goods must be similar. Pushed to its limits, such an approach would artificially and unduly extend the scope of Article 8(1)(b) of Regulation No 207/2009 (judgment of 25 September 2018, Grendene v
EUIPO – Hipanema (HIPANEMA), T‑435/17, not published, EU:T:2018:596, paragraphs 72 and 73).
42      Similarly, with regard to the unidentified practice of EUIPO, it must be recalled that it is apparent from settled case-law that decisions concerning registration of a sign as an EU trade mark which the Boards of Appeal are called on to take under Regulation No 207/2009 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the question whether a sign may be registered as an EU trade mark must be assessed solely on the basis of that regulation, as interpreted by the Courts of the European Union, and not on the basis of any previous practice of the Boards of Appeal (see judgments of 6 July 2011, i-content v OHIM (BETWIN), T‑258/09, EU:T:2011:329, paragraph 77 and the case-law cited, and of 8 June 2022, Medela v EUIPO (MAXFLOW), T‑744/21, not published, EU:T:2022:347, paragraph 40 and the case-law cited).
43      Although, in that regard, EUIPO must take into account decisions already taken and consider with especial care whether it should decide in the same way or not, compliance with the principle of legality requires that the examination of any trade mark application be stringent and full and be undertaken in each individual case, since the registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case (see judgment of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (FLIS Happy Moreno choco), T‑708/18, not published, EU:T:2019:762, paragraph 127 and the case-law cited).
44      It follows from the foregoing that the Board of Appeal correctly applied the case-law in seeking the specific purpose of the goods at issue and did not rely excessively on the difference – which is undisputed – in the nature and purpose of the goods at issue. Quite to the contrary, it took all the relevant factors into account as a whole in evaluating, without making any error of assessment, the similarities and differences of the goods at issue, by emphasising only the factors relevant to that comparison, in accordance with the case-law cited in paragraphs 31 to 34 above. Accordingly, it should be held that the applicant’s first complaint must be rejected as manifestly lacking any foundation in law.
45      In the second place, as regards distribution channels, the applicant merely claims that the goods under comparison are sold in the same points of sale, namely pharmacies or drugstores, and all target the general public, which is an indication that those goods are complementary.
46      In that regard, it should be borne in mind that, in accordance with the case-law, it has been accepted that, in general, the pharmaceutical preparations were similar to a low degree to cosmetics, since, first, the purpose of certain pharmaceutical products, such as skin or hair care preparations with medical properties, medicated dentifrices and medicated soaps, coincide in part with the purpose of cosmetic creams or lotions, dentifrices and soaps not for medical use and, second, both of those types of products were sold in pharmacies (see, to that effect, judgment of 13 May 2016, Market Watch v EUIPO – El Corte Inglés (MITOCHRON), T‑62/15, not published, EU:T:2016:304, paragraph 27).
47      Nevertheless, in the present case, first, it should be recalled that the applicant expressly states, in paragraph 42 of its pleadings, that it does not challenge the specific subcategory – which it correctly describes as ‘narrow’ – of the pharmaceutical preparations concerned, in accordance with paragraph 25 of the contested decision. Second, it should be pointed out that that subcategory groups together goods the purpose or advantages of which are in no way similar or complementary to those of cosmetics, the first acting on the musculoskeletal system, the second on the skin.
48      Likewise, in accordance with the case-law, the mere fact that the goods at issue may be sold in pharmacies or have an impact on health or bodily wellbeing is not sufficient to establish similarity between them, with regard to the undisputed difference, in the present case, between the medical purpose of some and the cosmetic purpose of the others (see, to that effect, judgment of 13 December 2017, Laboratorios Ern v EUIPO – Ascendo Medienagentur (SLIMDYNAMICS), T‑700/16, not published, EU:T:2017:896, paragraph 35).
49      Accordingly, in the light of the foregoing, the applicant’s second complaint must be rejected as manifestly lacking any foundation in law.
50      In the third place, the applicant asserts, in paragraph 56 of its application, that the relevant public is aware that companies manufacturing or selling ‘care products’ regularly have both pharmaceutical preparations or substances and cosmetic products in their product range, the overarching theme being ‘care’ or ‘wellbeing’ of the bodies of the users.
51      In that regard, it is true that, according to the case-law cited in paragraph 33 above, it is necessary for the relevant public to consider normal the fact that cosmetic products for the wellbeing of skin and those intended for medical treatment of the musculoskeletal system are sold under the same trade mark in order to establish that those goods are complementary. Nevertheless, other than the assertion presented in paragraph 50 above, the applicant does not put forward additional arguments to support a possible risk that the relevant public might consider that the same undertaking or economically linked companies could be responsible for the marketing of those two types of goods, which are quite distinct.
52      In those circumstances, even if it were to be assumed, despite it not having been established, that it has become usual for manufacturers of the goods at issue to manufacture those goods and thus to exploit their commercial success under the theme of ‘wellbeing of the bodies of users’ by placing their trade marks on a wide range of goods, it must be noted, in any event, that the applicant has not provided any evidence that consumers were necessarily informed of such a practice and normally expected that the same undertaking could be responsible for the manufacture of the various goods at issue which, prima facie, are not related and do not come within the same family of goods (see, to that effect, judgment of 25 September 2018, HIPANEMA, T‑435/17, not published, EU:T:2018:596, paragraph 59 and the case-law cited).
53      It follows that the applicant’s third complaint must be rejected as manifestly lacking any foundation in law.
54      Consequently, the Board of Appeal was right to find, in paragraph 34 of the contested decision, that the goods covered by the mark applied for, with the exception of ‘massage gels, other than for medical purposes’, were different from the earlier goods and not complementary to them and that there was no reason to conclude that they could come from the same undertaking.
55      As the applicant’s arguments on the comparison of the goods at issue have been rejected and the other elements of the analysis of the similarity of the marks at issue have not been disputed, the Board of Appeal’s analysis in that regard must be confirmed.
56      Accordingly, since one of the cumulative conditions referred to in paragraph 30 above has not been satisfied, no likelihood of confusion can be found in respect of marks covering different goods.
57      In the light of all the foregoing considerations, the applicant’s single plea in law must be rejected as manifestly lacking any foundation in law as must, consequently, the action in its entirety.
Costs
58      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.
59      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1.      The action is dismissed as manifestly lacking any foundation in law.
2.      Biologische Heilmittel Heel GmbH shall pay the costs.
Luxembourg, 12 September 2022.
E. Coulon
M.J. Costeira
Registrar
President
*      Language of the case: English.