JUDGMENT OF THE GENERAL COURT (First Chamber)
22 April 2026 (*)
( EU trade mark – Invalidity proceedings – Application for the EU figurative mark G MOTION – Earlier EU figurative mark GM Germany Motions – Relative grounds for invalidity – No likelihood of confusion – Article 8(1)(b) and Article 60(1)(a) of Regulation (EU) 2017/1001 – No damage to reputation – Article 8(5) and Article 60(1)(a) of Regulation 2017/1001 )
In Case T‑349/25,
Mariano Barranco Rodriguez, residing in Esplugues de Llobregat (Spain),
Pablo Barranco Schnitzler, residing in Esplugues de Llobregat,
represented by J. Iglesias Monravá and P. Bauzá Martínez, lawyers,
applicants,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas, acting as Agent,
defendant,
the other parties to the proceedings before the Board of Appeal of EUIPO being
Mariusz Snowacki, residing in Toruń (Poland),
Zbigniew Kilichowski, residing in Toruń,
Jarosław Osiński, residing in Toruń,
Łukasz Bubiłek, residing in Toruń,
THE GENERAL COURT (First Chamber),
composed of E. Buttigieg, President, J. Schwarcz and M. Kancheva (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By their action under Article 263 TFEU, the applicants, Mr Mariano Barranco Rodriguez and Mr Pablo Barranco Schnitzler, seek the annulment and the alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 1 April 2025 (Case
R-1752/2024-1) (‘the contested decision’).
Background to the dispute
2        On 18 October 2023, the applicants filed with EUIPO an application for a declaration of invalidity of the EU trade mark which had been registered on 17 January 2023 following an application filed on 28 September 2022 in respect of the following figurative sign:
3        The goods covered by the contested mark in respect of which a declaration of invalidity was sought are in Class
7 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:
‘Power transmission parts [other than for land vehicles]; machine transmission components, except for land vehicles; gear train parts, other than for land vehicles; transmission components (except for land vehicles); electric propulsion mechanisms for machines; electrical drives for machines; electric alternating current motor drives; electric driving motors for machines; machine coupling and transmission components (except for land vehicles); machine coupling and transmission components, except for land vehicles, and parts therefor; brakes for machines; brakes for industrial machines; magnetic brakes for machines; cone brakes being parts of machines; disc brakes for machines; disc brakes being parts of machines; hydraulic transmissions, other than for land vehicles; helical gear units being parts of machines; helical gear units for industrial purposes; drive mechanisms; drive mechanisms for machine tools; propulsion mechanisms, other than for land vehicles; power transmission mechanisms [other than for land vehicles]; motor drive mechanisms [other than for land vehicles]; transmission control mechanisms; control mechanisms for machines, engines or motors; motor drive units [other than for land vehicles]; variable speed drives for machines; machine guides [parts of machines]; guides for machines; articulated transmissions for machines; transmissions for machines; transmission mechanisms, other than for land vehicles; shaft mounted gear units [other than for land vehicles]; power transmissions and gearing for machines [not for land vehicles]; step-up gears for machines; reducing gears [parts of machines]; reduction gears, other than for land vehicles; worm gears for machines; gears for machines; gears, other than for land vehicles; change speed transmissions [other than for land vehicles]; torque converters for machines; torque converters, other than for land vehicles; speed reducers [machine parts]; worm gear reduction units; regulators for engines; regulators for machines; speed governors for machines, engines and motors; speed governers [mechanical] for machines, engines and motors; speed governors for machines; speed governors for motors and engines; alternating current servo motors; servomotors; servo-mechanisms; alternating current motors; direct current motors; clutches for machines; safety couplings [other than for land vehicles]; machine couplings and transmissions, except for land vehicles; driving devices for machines; transmission shafts for machines’.
4        The application for a declaration of invalidity was based on the earlier EU trade mark filed on 25 November 2015 and registered on 25 May 2016, reproduced below:
5        The earlier mark covered, inter alia, goods in Class
7 corresponding to the following description: ‘Motors for beds, electric motors, driving devices for machines, electric controls for motors, spindle shafts [parts of engines], machine coupling and transmission components (except for land vehicles)’.
6        The grounds relied on in support of the application for a declaration of invalidity were those set out in Article 60(1)(a) 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), read in conjunction with Article 8(1)(b) of that regulation and Article 8(5) thereof.
7        By decision of 11 July 2024, the Cancellation Division rejected the application for a declaration of invalidity.
8        On 5 September 2024, the applicants filed a notice of appeal with EUIPO against the Cancellation Division’s decision.
9        By the contested decision, the Board of Appeal dismissed the appeal, on the ground that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 and that the conditions laid down in Article 8(5) of that regulation were not satisfied, as the reputation of the earlier mark had not been proven.
Forms of order sought
10      The applicants claim, in essence, that the Court should:
–        annul the contested decision;
–        declare the contested mark invalid;
–        order EUIPO to pay the costs.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs incurred by it in the event that a hearing is held.
Law
12      In support of their action, the applicants rely on two pleas in law, alleging, first, infringement of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation and, second, infringement of Article 60(1)(a) of that regulation, read in conjunction with Article 8(5) of the same regulation.
First plea in law, alleging infringement of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation
13      By the first plea in law, the applicants claim that there is a likelihood of confusion in the present case and allege that the Board of Appeal was wrong to conclude that there was no such likelihood of confusion.
14      EUIPO disputes the applicants’ arguments.
15      In accordance with Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(1)(b) of that regulation, an EU trade mark must be declared invalid on application to EUIPO where, 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 mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
16      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
17      For the purpose 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      In the present case, as a preliminary point, there is no need to call into question the Board of Appeal’s findings relating to the relevant public, which, moreover, are not disputed by the applicants, that, first, the goods in question, as machines, engines, motors as well as parts and control mechanisms for machines, engines or motors, were directed at a professional public displaying a high level of attention and, second, since the earlier mark is an EU trade mark, the assessment had to be based on the territory of the European Union.
19      Similarly, there is no need to call into question the assessment, with which, moreover, the applicants agree, by which the Board of Appeal assumed that all the goods in question were identical, as this was the best-case scenario for the applicants, since some of the goods covered by the contested mark, such as machine transmission components, except for land vehicles, were identically included in the list of goods covered by the earlier mark.
Comparison of the signs
20      The applicants claim that there is a high degree of similarity between the marks at issue.
21      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 that 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).
22      The comparison must be made by examining each of the marks at issue as a whole. Thus, assessment of the similarity between two marks, in principle, means more than taking just one component of a composite trade mark and comparing it with another mark. It is only in circumstances where the overall impression conveyed to the relevant public by a composite trade mark is dominated by one or more of its components and where all the other components of that mark are negligible that the assessment of the similarity can be carried out, by way of exception, solely on the basis of the dominant element (judgment of 6 November 2024, House of Prince v EUIPO – Biały (AROMA KING), T‑118/23, not published, EU:T:2024:778, paragraph 30; see also, to that effect, judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraphs 41 and 42).
23      In the present case, the signs to be compared are the following:
Contested mark
Earlier mark
Contested mark
Earlier mark
–       The distinctive and dominant elements of the signs at issue
24      The applicants claim that the signs at issue are both dominated by the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively.
25      With regard to the contested mark, the Board of Appeal found that that mark consisted of the letter ‘g’, followed by the word ‘motion’, both written in red capital letters, that the word ‘motion’ was placed vertically, that its letters were significantly smaller than the letter ‘g’ and that the stylisation of the letter ‘g’ was reminiscent of the shape of a gearwheel. As for the English word ‘motion’, the Board of Appeal found that it referred to ‘the act or process of moving or the way something moves’ and that its meaning was understood throughout the European Union by the relevant professional public, who usually had a basic command of the fundamental English terms used in the industry of the goods in question, namely machines, engines and motors as well as their parts and control mechanisms. It found that, as all the contested goods were directly related to machines, engines and motors that cause motion or move themselves, the element ‘motion’ would be perceived as descriptive and non-distinctive by the relevant public. As regards the letter ‘g’, it noted that single letters per se, that is to say, in a non-stylised form, had only weak distinctive character. The distinctiveness of the letter ‘g’ of the contested mark therefore rested on its graphic design in the form of a stylised gearwheel, which was highly allusive of the contested goods, since a gearwheel was a typical symbol of motion and all the contested goods either caused motion or moved themselves. Regardless of that allusiveness, the Board of Appeal concluded that the stylised letter ‘g’ was the most distinctive and the dominant element in the overall impression of the contested mark due to its size and position and due to the fact that the additional element ‘motion’ was purely descriptive. Furthermore, it rejected the applicants’ argument that the stylised letter ‘g’ would be perceived by the relevant public as an abbreviation of the word ‘Germany’, describing goods of German origin.
26      As regards the earlier mark, the Board of Appeal stated that it consisted of the large capital letters ‘g’ and ‘m’ and the smaller wording ‘Germany motions’ placed below. The words ‘Germany motions’ were written in a standard font, with the first word in red and the second in black. The letters ‘g’ and ‘m’ were written in white on a black and red circular background, respectively, with a small red dot added to the left of the letter ‘g’. The word combination ‘Germany motions’ was composed of the descriptive words ‘Germany’, indicating geographical origin, and ‘motions’. As for the goods in Class
7 covered by the earlier mark, which essentially consisted of engines and motors and their parts, that word combination would be understood as referring to motors originating from Germany and therefore be of weak distinctiveness. The letters ‘g’ and ‘m’ would be perceived as an acronym of the words ‘Germany motions’. Consequently, the Board of Appeal concluded that, in the overall impression, no element would be perceived as more distinctive than the other and that the distinctiveness of the earlier mark rested on the specific arrangement and stylisation of its elements. Furthermore, it rejected the applicants’ argument that the letter ‘g’ and the word ‘motions’ were more distinctive on account of their black font, finding that the equal distribution of the red and black colours, that is to say, a black circle followed by a red circle and a red word followed by a black word, created a very balanced impression, and that it was well
known that red was more striking than black.
27      Those findings must be upheld and cannot be invalidated by the applicants’ arguments.
28      In the first place, it must be observed that, for the relevant public, the words ‘motion’ and ‘motions’ of the signs at issue have no distinctive character in respect of the goods in question, which are in Class
7.
29      In that regard, first of all, the applicants’ claim that, in part of the relevant territory, in particular in Spain, those English words will be considered fanciful and meaningless, such that they have a normal distinctive character, must be rejected. As the Board of Appeal found, the meaning of the words ‘motion’ and ‘motions’ will be understood throughout the European Union by the relevant professional public in the context of the goods in question. Professionals usually have a basic command of the fundamental English terms used in their industry (see, to that effect, judgment of 11 April 2019, Adapta Color v EUIPO – Coatings Foreign IP (ADAPTA POWDER COATINGS), T‑223/17, not published, EU:T:2019:245, paragraph 93). Since the goods in question relate to machines, engines and motors that cause motion or move themselves, it is reasonable to expect that the relevant public would be able to understand the meaning of those words. The applicants have not produced evidence or put forward a convincing line of argument to refute that finding of the Board of Appeal.
30      As regards Spain, to which the applicants specifically refer, it must be stated that, in the light of a similar equivalent in Spanish (moción), it is all the more likely that the relevant professionals operating in that Member State will be able to understand the words ‘motion’ and ‘motions’ contained in the signs at issue (see, to that effect, judgment of 15 September 2021, Celler Lagravera v EUIPO – Cyclic Beer Farm (Cíclic), T‑673/20, not published, EU:T:2021:591, paragraph 46 and the case-law cited).
31      In addition, the applicants’ claim that, although, in the English-speaking part of the relevant territory, the words ‘motion’ and ‘motions’ may be associated with movement, they are, however, of normal distinctive character when they are used for the goods in question, since movement is not specific to the machines industry, must be rejected.
32      In that regard, it must be borne in mind that, according to settled 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. The descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by that mark (see judgment of 17 January 2024, Ona Investigación v EUIPO – Formdiet (BIOPÔLE), T‑61/23, not published, EU:T:2024:10, paragraph 39 and the case-law cited).
33      In the present case, the words ‘motion’ and ‘motions’ must be regarded as being descriptive or, at the very least, highly allusive, in view of the characteristics of the goods in question, such as machines, engines and motors, because they produce movement or move themselves. Contrary to what the applicants claim, the fact that movement may also be a characteristic of other goods is irrelevant. The relevant public will not therefore perceive those words as indicating the commercial origin of the goods in question, but rather as a reference to their characteristics. The respective distinctive characteristics of the marks at issue rest primarily in the specific arrangement, configuration, representation and stylisation of their elements.
34      It follows that, in the circumstances of the present case, the common presence of the weakly distinctive elements ‘motion’ and ‘motions’ within the signs at issue has only a limited impact in the assessment of the similarity between those signs.
35      In the second place, contrary to what the applicants claim, it must be observed that the signs at issue are not dominated by the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively.
36      With regard to the contested mark, while it is indeed true that the letter ‘g’ dominates the visual impression, the same is not true of the word ‘motion’, the size of which is significantly smaller and which is, moreover, represented vertically, making it more difficult to read. However, as the Board of Appeal noted, the letter ‘g’ present in that mark has only a weak distinctive character, first, because single letters per se are generally regarded as weakly distinctive (see, to that effect, judgments of 22 September 2011, ara v OHIM – Allrounder (A with two triangular motifs), T‑174/10, not published, EU:T:2011:519, paragraph 37; of 9 November 2022, L’Oréal v EUIPO – Heinze (K K WATER), T‑610/21, not published, EU:T:2022:700, paragraph 56; and of 25 October 2023, Quantic Dream v EUIPO – Quentia (Q), T‑458/21, not published, EU:T:2023:671, paragraph 66) and, second, because its stylisation in the form of a gearwheel is highly allusive of the goods in question. Accordingly, the fact that the marks at issue have the letter ‘g’ in common should not be overestimated for the purpose of their comparison.
37      As regards the earlier mark, neither the letter ‘g’ nor the word ‘motions’ is larger in size than the other corresponding element, that is to say, respectively, the letter ‘m’ and the word ‘Germany’. In addition, as the first and last elements of that mark are essentially positioned in the same way, the relevant public will not focus its attention selectively just on the letter ‘g’ and the word ‘motions’, contrary to the applicants’ claims. Lastly, as the Board of Appeal observed, nor does the mere use of the colour black for those elements make them stand out more as compared with the red-coloured elements in that mark.
38      The Board of Appeal therefore did not make an error of assessment in determining the distinctive and dominant elements of the signs at issue.
–       Visual comparison
39      The applicants claim that the signs at issue are visually almost totally identical or are visually similar to a high degree, because those signs are dominated by the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively, and both contain the colour red.
40      The Board of Appeal stated that the signs at issue coincided in the letter ‘g’, the sequence of letters ‘m’, ‘o’, ‘t’, ‘i’, ‘o’ and ‘n’ and the use of the colour red, but differed in the additional letter ‘m’, the word ‘Germany’, the final letter ‘s’ of the plural word ‘motions’ and the use of the colour black in the earlier sign, the figurative elements of the signs, that is to say, the form of a gearwheel in the contested mark and three circles in the earlier sign, and the arrangement of their word elements. It found that those signs were visually similar to a low degree because they produced a different overall visual impression and differed significantly in the design and arrangement of their elements. The overall visual impression created by the contested mark was dominated by the letter ‘g’ stylised in the form of a gearwheel, whereas the earlier sign had no dominant element. In the earlier mark, the word elements were written in a normal horizontal orientation, distributed over two lines. By contrast, in the contested mark, the word ‘motion’ was vertically aligned, which made it slightly more difficult to read. In the contested mark, the letter ‘g’ was used as a single letter whilst, in the earlier mark, it was immediately followed by the letter ‘m’. Finally, the coincidence in the sequence of letters ‘m’, ‘o’, ‘t’, ‘i’, ‘o’ and ‘n’ had only a limited impact on the comparison of the signs, because the word ‘motion’ was non-distinctive. The same was true of the coincidence in the letter ‘g’, due to that letter’s weak distinctiveness.
41      Those findings must be upheld and are not invalidated by the applicants’ arguments.
42      First of all, it must be observed that the applicants’ claims are based on the erroneous premiss that the signs at issue are dominated by the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively (see paragraphs 28 to 38 above).
43      In addition, it must be noted that the arrangements, configurations, representations and the specific stylisations of the signs at issue are significantly different. First, in the contested mark, the word ‘motion’ is vertically aligned, whereas the elements of the earlier mark are written horizontally and distributed over two lines. Second, in the contested mark, the single letter ‘g’ is visually dominant and stylised in the form of a gearwheel, whereas, in the earlier mark, the letters ‘g’ and ‘m’ are the same size and represented inside a circle, and the letter ‘g’ of that mark contains a red dot in its upper part, which is clearly perceptible in the overall visual impression of the mark. Third, the contested mark is represented exclusively in red, whereas the earlier mark combines the colours red and black in a rather attractive and fanciful manner.
44      The presence of figurative elements set out in a specific way may have the effect that the overall impression of each sign is different (see judgment of 22 February 2018, International Gaming Projects v EUIPO – Zitro IP (TRIPLE TURBO), T‑210/17, not published, EU:T:2018:91, paragraph 50 and the case-law cited; judgment of 28 March 2019, Julius-K9 v EUIPO – El Corte Inglés (K9 UNIT), T‑276/18, not published, EU:T:2019:200, paragraph 49), whereas the coincidence in the sequence of letters ‘m’, ‘o’, ‘t’, ‘i’, ‘o’ and ‘n’ has only a limited impact on the comparison of the signs, as the word ‘motion’ is non-distinctive (see paragraphs 32 and 33 above).
45      Accordingly, since the distinctiveness of the two signs at issue lies, to a large extent, in their significantly different configurations and representations, the common presence of the letter ‘g’ and the word ‘motion’ or ‘motions’ notwithstanding, those signs must be regarded as visually weakly similar.
46      The Board of Appeal was therefore right to conclude that the signs at issue were visually similar to a low degree.
–       Phonetic comparison
47      The applicants claim that the signs at issue are phonetically similar to a high degree because those signs are dominated by the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively, and the mere omission of the final letter ‘s’ in the contested mark is not sufficient to distinguish them.
48      The Board of Appeal found that, first, for consumers who pronounced the earlier mark as ‘GM Germany motions’ and the contested mark as ‘G motion’, the marks were phonetically similar to a below-average degree. The marks coincided in the pronunciation of the letter ‘g’ and of the word ‘motion’ and differed in the pronunciation of the letter ‘m’, of the word ‘Germany’ and of the final letter ‘s’ of the plural word ‘motions’. Second, it found that, for consumers who pronounced the earlier mark simply as ‘Germany motions’ because they recognised the letters ‘gm’ as an acronym thereof, the marks were phonetically similar to an average degree. Third, it found that, for consumers who pronounced the contested mark as the sound ‘g’ and the earlier mark as the sounds ‘gm’, the degree of phonetic similarity was above average. It concluded that, overall, the marks were phonetically similar to an average degree.
49      First of all, it must be found that the applicants’ claim, set out in paragraph 47 above, rests on the premiss that the relevant public will refer to the signs at issue simply by pronouncing the letter ‘g’ and the respective words ‘motion’ and ‘motions’. However, that premiss is entirely unsubstantiated, because there is nothing in the case file
to support the assumption that the earlier mark is pronounced so arbitrarily simply by omitting its other elements which do, however, have equivalent weight, namely the letter ‘m’ and the word ‘Germany’. That claim therefore cannot succeed.
50      Next, it must be observed that, in paragraph 30 of the contested decision, the Board of Appeal set out three scenarios concerning how the signs at issue could be referred to orally: first, by pronouncing all the elements, ‘G motion’ for the contested mark and ‘GM Germany motions’ for the earlier mark; second, by pronouncing all the elements of the contested mark and only the words ‘Germany motions’ of the earlier mark; and, third, by pronouncing only the respective letters ‘g’ and ‘gm’ of those signs.
51      In that regard, the view should be taken, as EUIPO does, that only the first two scenarios identified by the Board of Appeal are feasible. Moreover, the applicants fail to establish that a non-negligible part of the relevant public would ignore the word elements present in the signs at issue and would refer to them only by pronouncing their respective letters (third scenario). Therefore, either all the elements of those signs are pronounced, in which case they would be similar to a below-average degree (first scenario), or part of the relevant public may omit the letters ‘gm’ of the earlier mark, which are an acronym of the words ‘Germany’ and ‘motions’, thus increasing the phonetic similarity between the signs to an average degree (second scenario). Of the two feasible scenarios, the latter is more favourable to the applicants.
52      The Board of Appeal did not therefore make an error of assessment in taking the view that the signs at issue, for the purpose of the assessment of the likelihood of confusion, were phonetically similar to an average degree.
–       Conceptual comparison
53      The applicants claim that the signs at issue are conceptually similar, because those signs are dominated by the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively, which are fanciful in the relevant territory, particularly in Spain.
54      The Board of Appeal found that, conceptually, the signs at issue were similar to a low degree because they coincided in the concept of motion, which had, however, only a limited impact on the comparison of those signs, because the concept was not distinctive.
55      First of all, it should be observed, as EUIPO does, that the applicants’ claim is contradictory. If, as the applicants wrongly claim, the elements in question were fanciful and meaningless, they would be unable to produce any conceptual similarity whatsoever between the signs at issue.
56      In addition, it must be found, admittedly, that the meaning of the word elements ‘motion’ and ‘motions’ in the signs at issue will be understood by the relevant public (see paragraphs 29 and 30 above). There is therefore a conceptual link between those signs.
57      However, as the Board of Appeal stated, since the concept conveyed by the elements ‘motion’ and ‘motions’ is weakly distinctive having regard to the goods in question, the degree of conceptual similarity between the signs at issue can only be weak (see, to that effect, judgment of 6 November 2024, AROMA KING, T‑118/23, not published, EU:T:2024:778, paragraph 65).
58      In that regard, it must be added that the meaning conveyed by the word ‘Germany’ in the earlier mark, although it has a limited impact due to its weak distinctiveness, affords it a certain conceptual difference as compared with the contested mark, in particular because the elements of the latter mark are also weakly distinctive.
59      The Board of Appeal was therefore right to conclude that the signs at issue were conceptually similar to a low degree.
Distinctiveness of the earlier mark
60      The applicants claim that the earlier mark enjoys a ‘great reputation’, that is to say, in essence, in the context of Article 8(1)(b) of Regulation 2017/1001, enhanced distinctiveness in the field of engines, machinery and electrical appliances, which contributes to the existence of a likelihood of confusion.
61      The Board of Appeal found, first of all, that the inherent distinctiveness of the earlier mark was low. In relation to the goods in Class
7 upon which the application for a declaration of invalidity was based, namely machines, engines and motors as well as their parts and control mechanisms, it found that the earlier mark would be understood throughout the European Union by the relevant professional public as evocative of motors of German origin.
62      Next, the Board of Appeal took the view that, taken in their entirety, the documents produced by the applicants were not sufficient to establish that the earlier mark enjoyed enhanced distinctiveness in the European Union at the filing date of the contested mark, that is to say, on 28 September 2022. In its view, while the evidence did show use of the earlier mark for adjustable bed motors and related control units, it did not demonstrate such use to an extent that would support the conclusion that the earlier mark had acquired a greater capacity to identify those goods as coming from the applicants.
63      According to settled case-law, the existence of a higher than normal level of distinctiveness as a result of the public’s recognition of a mark on the market necessarily presupposes that at least a significant part of the relevant public is familiar with it, but not necessarily that it has a reputation within the meaning of Article 8(5) of Regulation 2017/1001. It is not possible to state in general terms, for example by referring to specific percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has enhanced distinctiveness because of the public’s recognition of it. Nevertheless, it must be acknowledged that there is a certain interdependence between the public’s recognition of a mark and its distinctiveness in that the more the mark is recognised by the target public, the more the distinctiveness of that mark is strengthened. In order to assess whether a mark has enhanced distinctiveness as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of that mark, identifies the goods or services concerned as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see judgment of 6 November 2024, AROMA KING, T‑118/23, not published, EU:T:2024:778, paragraph 73 and the case-law cited).
64      In the present case, the view should be taken, as the Board of Appeal found, that the evidence produced by the applicants, namely documents Nos 1 to 8, even if assessed overall, is markedly insufficient to demonstrate that, at the relevant date, the earlier mark enjoyed a ‘reputation’ or, at the very least, enhanced distinctiveness in respect of the goods in question.
65      Thus, documents Nos 1 and 2 consist in two statements from the applicants themselves. In that regard, it must be recalled that, where a statement has been drawn up for the purposes of Article 97(1)(f) of Regulation 2017/1001 by the party concerned or by one of its executives, evidential value can be attributed to that statement only if it is supported by other evidence. A statement drawn up in the interests of its author has only limited evidential value and must be supported by additional evidence, even though that does not, however, allow the adjudicating bodies of EUIPO to conclude as a matter of principle that such a statement is, in itself, devoid of any credibility. The evidential value of such a statement, taken in isolation or in conjunction with other evidence, depends, inter alia, on the circumstances of the case (see judgment of 28 June 2023, CEDC International v EUIPO – Underberg (Shape of a blade of grass in a bottle), T‑145/22, EU:T:2023:365, paragraph 84 and the case-law cited). Here, it must be noted that the amounts stated, relating to turnover and investment in advertising, are not supported by any objective evidence.
66      Document No 3 is an extract of the results of an internet search using the keywords ‘Germany’ and ‘motions’. Those results show that the applicants’ bed motors and related control units are offered online by various specialised shops (for example, www.ortoprecios.com and www.stsmedical.com). However, contrary to what the applicants allege, that document does not prove that there are 21 300 000 search results that exclusively refer to the applicants and their products. The applicants did not provide a printout of the whole list of search results, but merely two pages thereof. As the two search terms were not placed in quotation marks, it is highly likely that the search results which were not shown include not only pages that show the word combination ‘Germany motions’ as a whole, but also pages that contain just one of those words, in particular the term ‘Germany’, designating that country in all kinds of contexts.
67      Documents Nos 4, 6 and 7 prove only that the applicants exhibited some of their products under the earlier mark at the ‘Interzum’ trade fair in Cologne (Germany) in 2015, 2017 and 2021.
68      Documents Nos 5 and 8 are leaflets and informational brochures about bed motors and related controls. Since the applicants did not provide any information about their print run or distribution numbers, it is impossible to assess the section of the relevant public that actually took note of those publications.
69      The Board of Appeal therefore did not make an error of assessment in concluding that the applicants had not proven that the earlier mark enjoyed enhanced distinctiveness on the relevant date.
70      It follows that the assessment of the likelihood of confusion must be based on the inherent distinctiveness of the earlier mark.
71      In that regard, it must be found, as the Board of Appeal did, that, for the goods in question, the earlier mark will be perceived by the relevant public as evocative of motors of German origin. Its inherent distinctiveness must therefore be regarded as weak. Consequently, it enjoys less extensive protection, which reduces the likelihood of confusion (see, to that effect, judgment of 9 July 2025, AirPlus International v EUIPO – Alpian (+a), T‑407/24, not published, EU:T:2025:685, paragraphs 67 and 68).
72      The Board of Appeal therefore did not make an error of assessment in finding that the earlier mark had weak distinctive character.
Global assessment of the likelihood of confusion
73      The applicants claim that, since the goods are identical and the signs are visually, phonetically and conceptually similar to a high degree, there is a likelihood of confusion.
74      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. 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 (see judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 69 and the case-law cited; see also, by analogy, judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17).
75      It is also settled case-law that the degree of distinctiveness of the earlier mark, which determines the extent of the protection conferred by it, is one of the relevant factors in the case in point. Where the distinctiveness of the earlier mark is significant, such a circumstance is likely to increase the likelihood of confusion. That being so, the existence of a likelihood of confusion is not precluded where the distinctiveness of the earlier mark is weak (see judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 70 and the case-law cited).
76      Where the earlier mark and the contested mark coincide in an element that is weakly distinctive with regard to the goods in question, the global assessment of the likelihood of confusion does not often lead to a finding that such likelihood exists (judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 53; see also, by analogy, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 55).
77      In the present case, the Board of Appeal found that, taking into account the low visual and conceptual similarity and the average phonetic similarity of the signs, the weak distinctiveness of the earlier mark and the high level of attention of the relevant public, there was no likelihood of confusion. In its view, the overall impression of the marks at issue was sufficiently different to exclude a likelihood of confusion, even when the marks were applied on identical goods. The signs showed significant visual differences resulting in a different overall impression that could not be offset by the assumption that the goods in question are identical.
78      The Board of Appeal also took the view that the visual differences between the signs at issue were very important having regard to the marketing methods, because machines, engines and motors as well as parts and control mechanisms were bought only after a visual inspection. In addition, in its view, the coincidences between those signs were limited to elements that were either non-distinctive (the word ‘motion’ and the colour red), or of low distinctive character (the letter ‘g’). Since the similarities between the two signs are based on an element which lacks distinctiveness or has only a weak distinctive character, the influence of such similarities on the global assessment of the likelihood of confusion is low.
79      Those findings must be upheld and are not invalidated by the applicants’ arguments.
80      First, the applicants claim, in essence, that, since the marks at issue coincide respectively in the letter ‘g’ and the words ‘motion’ and ‘motions’, the similarities existing between them are sufficient to establish that a likelihood of confusion exists.
81      To begin with, it must be recalled that, contrary to what the applicants claim, the presence of the weakly distinctive elements ‘motion’ and ‘motions’ has only a limited impact in the assessment of the likelihood of confusion (see paragraphs 28 to 34 above).
82      Next, the single letter ‘g’ present in the contested mark, regardless of its visually striking nature, is likewise not particularly distinctive.
83      In addition, the letter ‘g’ will not be regarded as an independent element of the earlier mark. As the Board of Appeal noted, that letter will be perceived, together with the letter ‘m’, as part of the abbreviation of the word combination ‘Germany motions’ present in that mark. Even assuming that it may have normal distinctive character when taken in isolation, the view must be taken that the sequence of the letters ‘g’ and ‘m’ is weakly distinctive on account of its combination with the expression ‘Germany motions’, which is itself weakly distinctive, and because there is nothing unusual about that combination (see, to that effect and by analogy, judgment of 15 March 2012, Strigl and Securvita, C‑90/11 and C‑91/11, EU:C:2012:147, paragraphs 36 to 38).
84      Lastly, the distinctive character of each of the marks at issue lies primarily in the specific arrangement, configuration, representation and stylisation of their elements (see paragraph 34 above), which are significantly different from one another.
85      Second, the applicants claim, in essence, that, even if the common elements of the marks at issue, that is to say, the letter ‘g’ and the words ‘motion’ and ‘motions’, respectively, were weakly distinctive, they would still be the dominant elements of those marks, which would be sufficient to find there to be a likelihood of confusion.
86      It is true that it cannot be ruled out that, as the applicants submit, a weakly distinctive element of a mark may be its dominant element. According to settled case-law, the weak distinctive character of an element of a composite mark does not necessarily imply that that element cannot constitute a dominant element, since it may, on account, in particular, of its position in the sign or its size, make an impression on consumers and be remembered by them (see judgment of 4 May 2022, Advanced Superabrasives v EUIPO – Adi (ASI ADVANCED SUPERABRASIVES), T‑4/21, not published, EU:T:2022:274, paragraph 43 and the case-law cited).
87      However, in the present case, the elements of the marks at issue to which the applicants refer cannot all be regarded as being dominant. The earlier mark does not contain any element which could be regarded as dominant as compared with the other elements of that mark, whereas, in the contested mark, the only visually dominant – albeit weakly distinctive – element is the letter ‘g’ (see paragraphs 35 to 37 above).
88      It must also be recalled, as the Board of Appeal notes, that, in the global assessment of the likelihood of confusion, the respective weight to be given to the visual, phonetic or conceptual aspects of the signs at issue may vary according to the objective circumstances in which the marks may be present on the market. However, in that context, the circumstances in which it is usual to expect the categories of goods covered by the marks at issue to be marketed must be taken as a benchmark (see judgment of 23 February 2022, Ancor Group v EUIPO – Cody’s Drinks International (CODE-X), T‑198/21, EU:T:2022:83, paragraph 57 and the case-law cited). Here, the usual marketing circumstances involve the machines, engines, motors, parts and control mechanisms and the other goods in question being bought only after a visual inspection, which makes the low degree of visual similarity between the signs at issue particularly relevant, given the significant visual differences between them.
89      In the present case, it must be concluded that, since in particular the common elements of the marks at issue are weakly distinctive or non-distinctive, the specific arrangement, configuration and representation of those marks are significantly different, there is a low visual and conceptual similarity and an average phonetic similarity between the marks, the visual comparison is particularly relevant in respect of the goods at issue, the earlier mark is only weakly distinctive and the relevant public pays a high level of attention, it follows, notwithstanding the fact that those goods are assumed to be identical, that there can be no likelihood of confusion.
90      Therefore, the Board of Appeal did not make an error of assessment in concluding that there was no likelihood of confusion in the present case.
91      The first plea in law must therefore be rejected.
Second plea in law, alleging infringement of Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(5) of the same regulation
92      By the second plea in law, the applicants claim that the earlier mark enjoys a great reputation in the territory of the European Union, particularly in Spain, in the field of engines, motors and machines. They refer to documents Nos 1 to 8, which were also produced to prove the enhanced distinctiveness of the earlier mark. In addition, they allege that the signs at issue are very similar and that there are various risks of reputational damage for the purposes of Article 8(5) of Regulation 2017/1001.
93      EUIPO disputes the applicants’ arguments.
94      The Board of Appeal found that the applicants had not proven the claimed reputation of the earlier mark. It took the view that documents Nos 1 to 8, even taken in their entirety, were insufficient to prove that the earlier mark was known to a significant part of the public concerned by the goods on which the request for a declaration of invalidity was based. As the reputation of the earlier mark was a necessary requirement for the application of Article 8(5) of Regulation 2017/1001, it rejected the application for a declaration of invalidity on that basis.
95      Under Article 60(1)(a) of Regulation 2017/1001, read in conjunction with Article 8(5) of the same regulation, upon opposition by the proprietor of an
earlier registered trade mark within the meaning of Article 8(2) of that regulation, an EU trade mark must be declared invalid on application to EUIPO where it is identical with, or similar to, an earlier trade mark, irrespective of whether the goods or services for which it is applied are identical with, similar to or not similar to those for which the earlier trade mark is registered, where, in the case of an earlier EU trade mark, the trade mark has a reputation in the European Union or, in the case of an earlier national trade mark, the trade mark has a reputation in the Member State concerned, and where the use without due cause of the trade mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark.
96      For an earlier registered trade mark to be afforded the broader protection under Article 8(5) of Regulation 2017/1001, the following three conditions must be satisfied: first, the marks at issue must be identical or similar; second, the earlier mark cited in support of the application for a declaration of invalidity must have a reputation; and, third, there must be a risk that the use without due cause of the mark applied for would take unfair advantage of, or be detrimental to, the distinctive character or the repute of the earlier trade mark. Those conditions are cumulative and failure to satisfy one of them is sufficient to render that provision inapplicable (see judgment of 5 October 2022, Puma v EUIPO – CMS (CMS Italy), T‑711/20, not published, EU:T:2022:604, paragraph 31 and the case-law cited).
97      According to settled case-law, a mark has a reputation within the meaning of EU law where it is known by a significant part of the public concerned by the goods or services covered by that mark, within a substantial part of the territory of the European Union. The existence of repute must be assessed by taking into consideration all the relevant factors of the case, that is to say, in particular, the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it (see, to that effect, judgment of 28 June 2018, EUIPO v Puma, C‑564/16 P, EU:C:2018:509, paragraphs 55 and 56 and the case-law cited). The burden of proving reputation rests on the proprietor of the earlier mark (see judgment of 5 October 2022, CMS Italy, T‑711/20, not published, EU:T:2022:604, paragraph 83 and the case-law cited).
98      As regards the quality of the evidence of reputation, the wording of Article 8(5) of Regulation 2017/1001 states clearly that an earlier mark merits broad protection only if it ‘has a reputation’. It follows that the evidence of reputation must be clear, specific and convincing, in the sense that the proprietor of the earlier mark must prove all the facts necessary in order for it to be concluded with certainty that his or her mark is known by a significant part of the public concerned. The reputation of the earlier mark must be sufficiently established in order to convince EUIPO, and not merely assumed. It is also apparent from the case-law that the proof of reputation must include adequately substantiated or verifiable objective particulars to make it possible to assess the relevant factors referred to in paragraph 97 above. As regards the assessment of the evidence of reputation, an overall assessment of the evidence adduced by the proprietor of the earlier mark must be carried out in order to establish whether that mark has a reputation (see, to that effect, judgment of 5 October 2022, CMS Italy, T‑711/20, not published, EU:T:2022:604, paragraphs 84 and 85 and the case-law cited).
99      In the present case, it must be stated that the applicants have not put forward any argument capable of calling into question the Board of Appeal’s finding that documents Nos 1 to 8 (see paragraphs 64 to 68 above) produced before EUIPO, even if assessed overall, were not sufficient to establish that the earlier mark had a reputation at the filing date of the contested mark. In the light of the burden of proof and the requirement as to the quality of the proof of reputation (see paragraphs 97 and 98 above), merely claiming the contrary is clearly insufficient in that regard.
100    In particular, since the Board of Appeal found that the evidence was incapable of demonstrating use of the earlier mark to an extent which would support the conclusion that that mark had acquired a reputation with the relevant public (see paragraphs 62 and 94 above), it fell to the applicants to refute those findings by demonstrating specifically where, on the basis of the documents produced, the relevant information concerning such a reputation could be found.
101    The Board of Appeal was therefore right to conclude that the earlier mark did not have a reputation.
102    Since the reputation of the earlier mark is a necessary condition for the application of Article 8(5) of Regulation 2017/1001 (see paragraph 96 above), the Board of Appeal also rightly rejected the application for a declaration of invalidity in so far as it was based on that ground.
103    Consequently, there is no need to examine the applicants’ arguments concerning the other conditions for the application of Article 8(5) of Regulation 2017/1001, which the Board of Appeal rightly did not assess.
104    The second plea in law must therefore be rejected.
105    In the light of all the foregoing considerations, the action must be dismissed in its entirety.
Costs
106    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.
107    In the present case, since the applicants have been unsuccessful but EUIPO applied for the applicants to be ordered to pay the costs only in the event that a hearing was held, it is appropriate, in the absence of a hearing, to order EUIPO to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mr Mariano Barranco Rodriguez and Mr Pablo Barranco Schnitzler, on the one hand, and the European Union Intellectual Property Office (EUIPO), on the other hand, to bear their own costs.
Buttigieg
Schwarcz
Kancheva
Delivered in open court in Luxembourg on 22 April 2026.
V. Di Bucci
L. Truchot
Registrar
President
*      Language of the case: English.