JUDGMENT OF THE GENERAL COURT (First Chamber)
6 May 2026 (*)
( EU trade mark – Opposition proceedings – Application for EU figurative mark proGlan – International registration of the earlier word mark PRO PLAN – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑291/25,
Ecuphar, established in Oostkamp (Belgium), represented by I. Miralles Llorca, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Société des produits Nestlé SA, established in Vevey (Switzerland), represented by C. Koch, J. Thomsen and C. Elkemann, lawyers,
THE GENERAL COURT (First Chamber),
composed of E. Buttigieg, President, M. Kancheva and E. Tichy‑Fisslberger (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 its action under Article 263 TFEU, the applicant, Ecuphar, seeks the annulment and the alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 February 2025 (Case R 1039/2024‑4) (‘the contested decision’).
Background to the dispute
2        On 11 February 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3        Following the restriction made in the course of the proceedings before EUIPO, the mark applied for covers the goods in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Medicines for anal gland function for veterinary use.’
4        On 7 June 2022, the intervener, Société des produits Nestlé SA, filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5        The opposition was based, in particular, on the earlier international registration designating the European Union of the word mark PRO PLAN, covering goods in Class 5 corresponding to the following description: ‘Nutritional supplements for veterinary use; nutritional supplements for animal consumption’.
6        The grounds relied on in support of the opposition included that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        On 21 March 2024, the Opposition Division upheld the opposition and rejected the application for registration.
8        On 17 May 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
9        By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
10      The applicant claims, in essence, that the Court should:
–        annul the decision of the Opposition Division;
–        annul the contested decision;
–        allow the application for registration of the mark applied for;
–        order EUIPO and, in case it decides to intervene in the present proceedings, the intervener to pay the costs.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs incurred by EUIPO in the event that a hearing is convened.
12      The intervener contends that the Court should:
–        dismiss the action for annulment;
–        order the applicant to bear the costs incurred by the intervener.
Law
The jurisdiction of the Court
13      As regards the applicant’s third head of claim, it must be pointed out that that head of claim requests that the Court allow the application for registration of the mark applied for and may be understood as requesting that the Court alter the contested decision within the meaning of Article 72(3) of Regulation 2017/1001 by adopting the decision that the Board of Appeal should have taken, in accordance with the provisions of that regulation. The competent bodies of EUIPO do not, however, adopt formal decisions recording the registration of an EU trade mark which could be the subject of an appeal. Consequently, the Board of Appeal does not have power to take cognisance of a claim that it should register an EU trade mark. Nor, in those circumstances, is it for the Court to take cognisance of a claim for alteration requesting that it amend the decision of a Board of Appeal to that effect (see, to that effect, judgment of 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, EU:T:2011:158, paragraph 13 and the case-law cited). It follows that the applicant’s third head of claim must be rejected on the ground of lack of jurisdiction.
Admissibility of the applicant’s first head of claim
14      Pursuant to Article 72(1) of Regulation 2017/1001, actions may be brought before the EU judicature only against decisions of the Boards of Appeal, with the result that it is only pleas directed against the decision of the Board of Appeal itself which are admissible in such an action (judgments of 7 June 2005, Lidl Stiftung v OHIM) – REWE-Zentral (Salvita), T‑303/03, EU:T:2005:200, paragraph 59; of 24 November 2010, Nike International v OHIM – Muñoz Molina (R10), T‑137/09, EU:T:2010:478, paragraph 13; and of 1 September 2021, Gruppe Nymphenburg Consult v EUIPO (Limbic® Types), T‑96/20, EU:T:2021:527, paragraph 22).
15      It follows that the applicant’s first head of claim, seeking that the Court annul the decision of the Opposition Division, must, in any event, be rejected as inadmissible.
Substance
16      The applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001.
17      The supporting arguments for that plea are presented with little precision, including with respect to the terminology employed, and do not correspond to the analytical grid typically used by the General Court to assess the merits of a plea alleging infringement of Article 8(1)(b) of Regulation 2017/1001. The General Court will examine those arguments by linking them to the assessment criteria set out in case-law to which they pertain.
18      The applicant submits, in essence, that the signs at issue are so different that there is no likelihood of confusion.
19      EUIPO and the intervener dispute the applicant’s arguments and claim that the Board of Appeal was right to find a likelihood of confusion in the present case.
20      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. Furthermore, under Article 8(2)(a)(iv) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered under international arrangements which have effect in the European Union with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
21      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited).
22      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).
23      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods or services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited).
The relevant public
24      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods 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).
25      In the present case, the Board of Appeal considered, in paragraphs 35 to 37 of the contested decision, that the goods in question targeted the general public, such as pet owners, as well as professionals, such as veterinarians, across the European Union. Professionals generally pay a high level of attention and the level of attention of the general public will also be higher than average considering that the goods in question may affect the health and welfare of pets. That is the case whether the goods in question are issued on prescription or not.
26      Those considerations are not disputed by the parties and there is no need to call them into question.
The comparison of the goods
27      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 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
28      In the present case, in paragraphs 40 to 46 of the contested decision, the Board of Appeal found that the medicines for anal gland function for veterinary use covered by the mark applied for were substances used to treat anal gland disorders in animals. The nutritional supplements for veterinary use covered by the earlier international registration are, for their part, intended to improve the health of animals, either to treat or prevent medical problems in the broadest sense, or to balance nutritional deficiencies by supplementing a normal diet. Even if the goods covered by the mark applied for had a specific purpose, they would have the same broad intended purpose as the nutritional supplements for veterinary use of the earlier international registration, namely promoting health. Those goods could be administered and used in a combined or supplementary manner, to different therapeutic ends. The goods target the same public, in particular veterinarians and pet owners, and their distribution channels, such as pet stores, pharmacies and veterinarian clinics, are likely to overlap. The goods covered by the mark applied for are therefore similar to an average degree to the goods covered by the earlier international registration.
29      The applicant asserts, in essence, that certain aspects concerning the similarity of the goods at issue weigh against the finding that there is a likelihood of confusion in the present case. In that connection, the applicant submits, first, as regards the nature and intended purpose of the goods at issue, that, like all medicines, medicines for anal gland function for veterinary use are subject to marketing authorisation and stricter health controls than nutritional supplements for veterinary use. Accordingly, the goods at issue are manifestly different in terms of nature and intended purpose. Secondly, it claims that the level of attention of the relevant public is high. Thirdly, it states that while medicines for anal gland function for veterinary use are typically distributed via veterinary clinics or veterinary pharmacies, nutritional supplements for veterinary use could be available in clinics, specialist pet stores, online platforms or general retail outlets. Although it is not impossible for there to be some overlap in distribution channels, the nature and purpose of the goods provide a clear distinction. Fourthly, the applicant submits that the goods at issue are not substitutable or in direct competition, nor are they complementary. Fifthly, it asserts that given that the goods covered by the marks at issue serve different, non-interchangeable applications, there is no likelihood of confusion.
30      EUIPO and the intervener dispute the applicant’s arguments.
31      In the first place, in so far as the applicant asserts that the goods at issue are different in terms of nature and intended purpose, the Board of Appeal was right to find, in paragraph 43 of the contested decision, that, although medicines for anal gland function for veterinary use serve a specific purpose, they had the same broad intended purpose as nutritional supplements for veterinary use, namely of improving and preserving the state of health of animals. While nutritional supplements for veterinary use are not specifically aimed at treating, alleviating or curing illnesses, it is nevertheless true that they also contribute, like medicines for anal gland function for veterinary use, to promoting animal health and that the goods at issue can be administered and used, in a combined or supplementary manner, to different therapeutic ends. That is the case in particular for nutritional supplements for veterinary use, which are designed to respond to special dietary needs, with the aim of treating or preventing illnesses or of strengthening the organism. Moreover, as regards their nature, the goods in question are similar, since they are regarded by the consumers as products belonging to the same general category of animal health care products (see, to that effect, judgment of 16 December 2020, Gustopharma Consumer Health v EUIPO – Helixor Heilmittel (HELIX ELIXIR), T‑883/19, not published, EU:T:2020:617, paragraph 41 and the case-law cited).
32      While it is therefore true that the nature and intended purpose of the goods at issue are not strictly identical, the fact remains that they have strong similarities in that respect, as the Board of Appeal, in essence, found.
33      In the second place, in so far as the applicant states that the level of attention of the relevant public is high, it must be stated that there is nothing in the contested decision which would suggest that the Board of Appeal based its decision on a different understanding. Nevertheless, while it is true that the high level of attention of the relevant public allows that public to distinguish different goods more easily, it does not automatically follow that that public would consider that the goods at issue are not similar to any degree. On the contrary, in view of the significant similarities between the goods at issue as regards their nature and their intended purpose (see paragraphs 31 and 32 above), even a public with a high level of attention will consider that those goods have at least an average degree of similarity, which corresponds to the Board of Appeal’s finding.
34      In the third place, as regards the applicant’s argument based on the distribution channels of the goods at issue, it should be noted that the applicant itself recognised that both medicines for anal gland function for veterinary use and nutritional supplements for veterinary use may be offered for sale in veterinary clinics and that there is some overlap in the distribution channels of those goods. Moreover, the Board of Appeal was right to note, in paragraph 44 of the contested decision, that the goods at issue were likewise distributed by pharmacies and veterinary clinics.
35      In the fourth place, given that all medicines and nutritional supplements serve to treat or to prevent specific medical problems and that it is therefore likely that medicines for anal gland function for veterinary use and nutritional supplements for veterinary use are not substitutable, it must be recalled that complementary goods or services are those between which there is a close connection, in the sense that one is indispensable or important for the use of the other with the result that consumers may think that the same undertaking is responsible for manufacturing those goods or for providing those services (see judgment of 22 January 2009, easyHotel,  T‑316/07, EU:T:2009:14, paragraph 57 and the case-law cited). That is the case for the goods at issue, in that they are capable of being administered together in order to treat health issues.
36      In the fifth place, even supposing it were proved that the goods covered by the marks at issue could have different and non-interchangeable therapeutic indications, the fact remains, first, that the goods at issue have strong similarities as regards their nature and their intended purpose (see paragraphs 31 and 32 above) and, secondly, that they are complementary (see paragraph 35 above).
37      Since none of the arguments put forward by the applicant is capable of invalidating the Board of Appeal’s assessments, it must be concluded that the Board of Appeal did not commit any errors of law or of assessment by finding that the goods at issue were similar to an average degree.
The comparison of the signs
38      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).
–       The distinctive and dominant elements of the signs at issue
39      In the present case, before examining the three aspects of similarity between the signs at issue, the Board of Appeal engaged, in paragraphs 50 to 59 of the contested decision, in several preliminary considerations concerning, first, the understanding of the signs at issue by the relevant public and, secondly, the distinctiveness of the various elements making up the signs at issue or of those signs as a whole. Accordingly, as regards the earlier sign, the Board of Appeal noted that it was a word sign consisting of two elements, namely ‘pro’ and ‘plan’. By contrast, the sign applied for was a figurative sign consisting of the word element ‘proglan’, depicted in a slightly rounded standard typeface. The earlier sign’s initial and final letters, namely, ‘p’, ‘r’, ‘o’, ‘l’, ‘a’ and ‘n’ appeared in purple lower case, while the middle letter ‘G’ appeared in the same purple colour, but in upper case. The letter ‘o’ was divided into three sharped curved sections coloured in purple and two different blue tonalities. The Board of Appeal found that the public identifies word elements that suggest a concrete meaning or that resemble words known to the public, even if only one part of the word elements making up the sign is familiar to it. In the present case, that is even more likely given that the components of the earlier sign are visually separated by a space and given the use of an upper-case letter ‘G’ in the central position of the sign applied for.
40      The word element ‘pro’, present at the beginning of both signs, will be interpreted by the relevant public as an abbreviation of the word ‘professional’ and will be understood as meaning ‘professional’ or ‘favourable, positive, or supportive’. In the context of the goods in Class 5, that element will be perceived as an indication that those substances can be used by professionals, or as a laudatory indication on the quality of the goods. Therefore, that element has, at best, a low degree of distinctiveness.
41      The word element ‘plan’, the second component of the earlier sign, pertains to basic English vocabulary and will be understood by the whole EU public as referring to ‘a set of things to do in order to achieve something’. Since that element has no clear meaning in relation to the goods at issue, it is a distinctive element. The Board of Appeal does not share the applicant’s point of view that the earlier sign as a whole is non-distinctive. Contrary to the applicant’s point of view, the relevant public will not understand that sign as meaning ‘in favour of a plan’ and suggesting that the goods are aimed at establishing a nutritional plan for animals through nutritional supplements.
42      As for the sign applied for, as regards the goods covered by the application for registration, the word element ‘proglan’ is likely to be understood at least by part of the relevant public as being composed of two meaningful terms ‘pro’ and ‘glan’, the latter being perceived as a misspelling of the English word ‘gland’. That is particularly likely with respect to professionals, such as veterinarians who will associate the expression ‘proglan’ with the organ ‘gland’ for which the goods are used. Accordingly, the component ‘glan’ is only weakly distinctive for part of the relevant public, while the remaining part of that public will perceive it as meaningless, and therefore distinctive. Although the stylisation of the word element of the mark applied for, including the colours, does not go unnoticed, it is of a decorative nature. Those figurative elements are of secondary importance in the overall impression produced by the sign applied for.
43      The applicant criticises those assessments by the Board of Appeal. In the first place, the applicant submits that the stylisation of the sign applied for, on account of the dimensions and predominant location of the ‘logotype’ in the sign, plays an important role in the overall impression produced by the sign. That cannot therefore be ignored. The Board of Appeal did not substantiate its assertion that that ‘logotype’ will be perceived by the relevant public as merely decorative. The figurative element of the sign applied for – which is not present in the earlier sign – is sufficiently large, elaborate and placed at the top of the sign, with the result that it has a more significant impact on the overall impression produced by that sign than the sign’s other elements. The overall impression is not dominated by the single word element of the sign applied for.
44      In the second place, the applicant submits that the word element ‘pro’ in the earlier sign is only weakly distinctive and is commonly used to refer to professional, technical or advanced qualities of a product. The word element ‘plan’ in that sign is also a generic word in English that refers to an intention, strategy or scheme and, in the context of pet food, it may suggest a dietary or feeding plan. The relevant public will recognise that meaning and will not necessarily perceive it as a strongly distinctive element. It is true that the earlier sign which includes the terms ‘pro’ and ‘plan’ is not descriptive, but contains two common English terms, which together immediately call to mind the idea of a professional nutritional plan.
45      The component ‘glan’, which appears in the sign applied for, refers to a product indicated for treating glands. The sign applied for is presented in a vibrant pink or purple colour, is limited in its stylisation, featuring contrasting colours, and contains three particularly distinctive curved overlapping lines in place of the letter ‘o’, which is in itself a distinctive feature. The component ‘glan’ of the sign applied for, comprising an upper-case letter ‘G’, appears prominently, recalling the purpose of the goods intended for treating anal glands. That component is, however, an invented word not found in the dictionary.
46      EUIPO and the intervener dispute the applicant’s arguments.
47      In the first place, in so far as the applicant complains that the Board of Appeal ignored the stylisation of the sign applied for, it is sufficient to note that the applicant is misreading the contested decision. It is unequivocally apparent from paragraphs 58, 59 and 76 of the contested decision that the Board of Appeal did take into account the elements of stylisation of the sign applied for, while finding that those elements were of a secondary importance.
48      In the second place, in so far as the applicant submits that those stylisation elements of the sign applied for have a more significant impact on the overall impression produced by that sign than the sign’s other elements, the Board of Appeal was right to recall, in paragraph 59 of the contested decision, that it is apparent from settled case-law that, where a trade mark consists of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods in question by quoting the name of the mark than by describing the figurative element of that mark (see judgment of 28 September 2022, Copal Tree Brands v EUIPO – Sumol + Compal Marcas (COPAL TREE), T‑572/21, not published, EU:T:2022:594, paragraph 31 and the case-law cited).
49      It is true that it does not follow that the word elements of a mark must always be regarded as more distinctive than the figurative elements. In the case of a composite mark, the figurative element may rank equally with the word element (judgment of 20 September 2017, Jordi Nogues v EUIPO – Grupo Osborne (BADTORO), T‑350/13, EU:T:2017:633, paragraph 29).
50      However, contrary to what the applicant submits, that is not the case here. First of all, the typeface used in the sign applied for is rather standard. Next, the colours in which that sign is presented are not unusual either. Lastly, as the Board of Appeal correctly stated, the stylisation of the letter ‘o’ in the sign applied for does not prevent the relevant public from recognising it. Accordingly, the relevant public will indeed perceive all of its stylisation elements as merely decorative in the word element ‘proglan’, which that public will identify without any effort at all.
51      The circumstances put forward by the applicant do not lead to a different conclusion.
52      First, in so far as the applicant relies on the size and the predominant location of the ‘logotype’ in the sign applied for, the General Court understands that the applicant is making reference to the stylised letter ‘o’. That letter ‘o’ is of the same size as the other lower-case letters in the sign applied for and its location merely corresponds to its position in the word element of the sign applied for. Moreover, it must be stated that it is in fact the upper-case letter ‘G’ that is in the middle of that word element, and not that letter ‘o’. That central position, in the middle of the sign, of the upper-case letter ‘G’ is further strengthened by the fact that it is the only upper-case letter in that word element. The ‘logotype’ is therefore in no way particularly large and it is not in a prominent location.
53      Secondly, for similar reasons, the applicant’s argument that the figurative element of the sign applied for is sufficiently large, elaborate and placed at the top of the sign is also unfounded. Again, the Court understands that the applicant is making reference to the letter ‘o’. However, that letter is not large nor is it positioned at the top of the sign. The representation of the letter ‘o’ by a circle comprising three sharped curved elements in three colours is rather simple and not unusual.
54      Thirdly, it should be stressed that it is not for the Board of Appeal to adduce proof for its finding that the stylisation elements will be perceived, by the relevant public, as merely decorative, even though it is required to state the reasons on which its decisions are based, including on that point, under the first sentence of Article 94(1) of Regulation 2017/1001. In the present case, the General Court finds that the reasoning followed by the Board of Appeal to arrive at its finding that the stylisation elements of the sign applied for are merely decorative is sufficiently clear from the contested decision, allowing the applicant to determine the reasons for the decision taken, and allowing the Court to exercise its power of review.
55      The Board of Appeal therefore did not commit an error of assessment by finding that the stylisation elements of the sign applied for, as a whole, have only a low degree of distinctiveness.
56      In the third place, it should be recalled that, as is apparent from settled case-law, even if the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when faced with a word sign even within a composite mark, he or she will break it down into word elements which, for him or her, suggest a concrete meaning or which resemble words known to him or her (see judgment of 12 July 2019, Audimas v EUIPO – Audi (AUDIMAS), T‑467/18, not published, EU:T:2019:513, paragraph 37 and the case-law cited).
57      In that connection, first, while the applicant does not criticise the Board of Appeal’s finding that the word element ‘pro’ has, as such, only a low degree of distinctiveness, the applicant seems to maintain that that finding applies only to the earlier sign. The applicant does not supply any reason why that would be the case, with the result that that unsubstantiated claim must be rejected. Since the word element ‘pro’ indeed has only limited distinctiveness in relation to the goods at issue, the Board of Appeal was right to find that that word element, common to both signs at issue, has only a low degree of distinctiveness.
58      Secondly, as regards the word element ‘plan’, contained in the earlier sign, the parties do not dispute the Board of Appeal’s finding that it is a term from basic English vocabulary which will be understood by the whole EU public as referring to ‘a set of things to do in order to achieve something’. In so far as the applicant submits that, in the context of pet food, that word may suggest a dietary or feeding plan, it should be observed that the goods covered by the earlier international registration are nutritional supplements for veterinary use and nutritional supplements for animal consumption, and not just any plan that may designate a nutrition programme. While it is indeed conceivable that certain parts of the relevant public may be led to believe that those goods covered by the earlier international registration are likely to be used in the context of a dietary plan, that evocation has at most an indirect and unspecific link with the goods at issue, with the result that the term ‘plan’ cannot be considered to be descriptive of those goods. Therefore, that argument cannot succeed.
59      Thirdly, it follows that the applicant’s argument that the relevant public will perceive the earlier sign as a whole as referring to the idea of a professional nutritional plan must also be rejected.
60      Fourthly, as for the word element ‘glan’ in the sign applied for, the parties do not disagree with the Board of Appeal’s finding that, at least for a part of the relevant public, that term is meaningless, with the result that, for that part of the relevant public, it has an average degree of distinctiveness.
61      It follows that the Board of Appeal did not commit an error of law or of assessment in its analysis of the distinctive and dominant elements of the signs at issue.
–       The visual similarity
62      As regards the visual similarity of the signs at issue, the Board of Appeal found, in paragraphs 60 to 63 of the contested decision, that they coincide in the sequences ‘p’, ‘r’ and ‘o’ at the beginning and ‘l’, ‘a’ and ‘n’ at the end, and that they differ in their central letter, namely the upper-case letter ‘G’ in the sign applied for and the letter ‘p’ in the earlier sign and by the graphical depiction of the ‘G’. The word element of the sign applied for has more impact on the relevant public than its figurative element. Accordingly, the signs at issue are visually similar to an average degree.
63      The applicant submits that the signs at issue have significant visual differences, with the result that the overall visual impression produced by the sign applied for is different from that produced by the earlier sign. According to the applicant, the signs at issue differ in the figurative elements in the sign applied for, which have a more significant impact and have no counterparts in the earlier sign. In that connection, the applicant refers, in particular, to the colours used in the sign applied for and to the three overlapping lines in place of the letter ‘o’, which are particularly distinctive. The word element common to the signs at issue, ‘pro’, does not allow a significant visual similarity to be established, since, in the earlier sign, it has a low degree of distinctiveness. While the word elements ‘glan’ and ‘plan’ differ in only one letter, that is nevertheless sufficient to alter entirely the overall visual impression produced by the marks at issue.
64      EUIPO and the intervener dispute the applicant’s arguments.
65      In the first place, it is apparent from paragraphs 48 to 55 above that the Board of Appeal was right to find that the stylisation elements of the sign applied for were of only a secondary importance in relation to the word element of that sign. While those stylisation elements cannot therefore be ignored, they are not, however, capable of clearly differentiating the sign applied for from the earlier sign, contrary to what the applicant claims.
66      In the second place, in so far as the applicant submits that the word element ‘pro’ in the earlier sign has only a low degree of distinctiveness and therefore cannot establish a visual similarity of the signs at issue, the General Court observes that the fact remains that, in that connection, the signs at issue are strictly identical: their word element begins with the sequence of letters ‘p’, ‘r’ and ‘o’. Even if less importance were to be attributed to that element of identity, at least a certain visual similarity would inevitably result from that common element.
67      In the third place, contrary to the applicant’s view, the mere fact that the elements ‘glan’ and ‘plan’ differ only by their initial letter is a significant element of visual similarity between the signs at issue.
68      Consequently, given that the word elements of the signs at issue are identical at the beginning, ‘pro’, and at the end, ‘lan’, and that they differ only in the central letter, namely the upper-case letter ‘G’ for the sign applied for and the letter ‘p’ for the earlier sign, the Board of Appeal was right to find that, in view of the stylisation elements of the earlier sign, the importance of which was secondary, those signs were visually similar to an average degree.
–       The phonetic similarity
69      As regards the phonetic comparison of the signs at issue, the Board of Appeal found, in paragraphs 64 to 66 of the contested decision, that those signs shared the sound of the sequences ‘p’, ‘r’ and ‘o’, first, and ‘l’, ‘a’ and ‘n’, secondly, and that they differed in the central letter, ‘g’ for the sign applied for and ‘p’ for the earlier sign. The signs at issue are therefore phonetically similar to a high degree.
70      The applicant asserts that the signs at issue display clear and substantial phonetic differences. The sign applied for is composed of a single word and its syllabic structure differs from that of the earlier sign, which comprises two distinct words. That difference in syllabic division and rhythm is significant, since the relevant public typically perceives a sign as a whole. The final parts of the signs, ‘plan’ in the earlier sign and ‘glan’ in the sign applied for, are phonetically different. The letter ‘p’ is a voiceless bilabial plosive whereas the letter ‘g’ is a voice velar plosive. The ‘p’ sound is created in the front of the mouth, whereas the ‘g’ sound is created in the back of the mouth. There are numerous other words in English that differ by only a single letter, which are completely different in their pronunciation.
71      EUIPO and the intervener dispute the applicant’s arguments.
72      Even if it were accepted that the English-speaking part of the relevant public does not break down the sign applied for but perceives it as a single word, the fact would remain that that term, ‘proglan’, would be divided by that part of that public, into two syllables, ‘pro’ and ‘glan’. Accordingly, the syllabic structure and rhythm of the word ‘proglan’ are, in any event, the same as that of the terms ‘pro’ and ‘plan’, contrary to what the applicant maintains, while failing to put forward more detailed arguments in that connection.
73      For the remainder, although, on account of the difference in pronunciation of the letters ‘g’ and ‘p’, rightly raised by the applicant, the elements ‘glan’ of the sign applied for and ‘plan’ of the earlier sign are not identical, the fact remains that, as a whole, those components display significant phonetic similarities. As regards, specifically, the pronunciation by the English-speaking part of the relevant public, it must be stated that the elements ‘glan’ and ‘plan’ are pronounced very similarly. The circumstance relied on by the applicant that, in other combinations of English words, the difference in a single letter leads to a different pronunciation, even if it were to be established, does not invalidate that specific finding as regards the elements ‘glan’ and ‘plan’ at issue here.
74      Even if, for the purposes of the phonetic comparison of the signs at issue, it were necessary to attribute less importance to the common word element ‘pro’, the Board of Appeal was therefore right to find that, overall, the signs at issue were phonetically similar to a high degree.
–       The conceptual similarity
75      As regards the conceptual comparison of the signs at issue, the Board of Appeal found, in paragraphs 67 and 68 of the contested decision, that they coincided to the extent that they shared the same reference to the classification as ‘professional’ or ‘favourable, positive, or supportive’, but differed in the reference to a ‘plan’ in the earlier sign and, for part of the relevant public, to the organ ‘gland’ in the sign applied for. In view of the low degree of distinctiveness of the common meaning, there was a low degree of conceptual similarity.
76      The applicant submits that, in the earlier sign, the word element ‘pro’ designates the professional, technical or advanced qualities of a product. In English, the word element ‘plan’ refers to an intention, strategy or scheme and, in the context of pet food, it may suggest a dietary or feeding plan. The earlier sign as a whole immediately calls to mind the idea of a professional nutritional plan. The word element ‘glan’ in the sign applied for refers to a product indicated for treating glands. The word elements ‘glan’ and ‘plan’ at the end of the signs at issue are conceptually distinct. According to the applicant, overall, the signs at issue are conceptually different.
77      EUIPO and the intervener dispute the applicant’s arguments.
78      It is apparent from paragraphs 57 to 59 above that the relevant public will not understand the word element ‘plan’ of the earlier sign, nor the earlier sign as a whole in the way called for by the applicant. In any event, the component ‘pro’ in the two signs at issue will be understood in the same way by that relevant public who will indeed break down the two signs at issue into two parts, ‘pro’ and ‘plan’ for the earlier sign and ‘pro’ and ‘glan’ for the sign applied for (see paragraph 72 above). It is, moreover, common ground between the parties that the elements ‘glan’ and ‘plan’ are not conceptually identical. For the part of the relevant public who recognise, in the element ‘glan’, a reference to glands, those elements are conceptually different. For the part of the relevant public who will not understand the element ‘glan’ and will therefore perceive it as fanciful, the elements ‘plan’ and ‘glan’ are not conceptually similar. Even if it were necessary to attribute less importance to the common component ‘pro’, in any event, the Board of Appeal did not err by finding that, even for the part of the relevant public which would perceive the semantic difference between the elements ‘glan’ and ‘plan’, overall, there was a low degree of conceptual similarity between the signs at issue.
The likelihood of confusion
79      According to settled case-law, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be assessed globally, taking into account all the relevant factors of the particular case (see judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited).
80      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, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
81      The Board of Appeal found, in paragraphs 74 to 77 of the contested decision, that the goods at issue were similar to an average degree and that the relevant public, consisting of the general public as well as professional consumers, displayed a high level of attention. Even the relevant public with a high level of attention has only an imperfect recollection of trade marks. The signs at issue are visually similar to an average degree, phonetically similar to a high degree, and conceptually similar to a low degree. Therefore, a likelihood of confusion occurs.
82      The applicant asserts, in essence, that the signs at issue are so different that there is no likelihood of confusion. According to the applicant, where the signs at issue have in common elements with a low degree of distinctiveness, namely the word element ‘pro’, and have notable visual or phonetic differences, there is no likelihood of confusion, even where the goods or services are identical. Phonetic or conceptual similarities based solely on non-distinctive common words are not sufficient to create a likelihood of confusion. The differences between the signs at issue influence all the aspects of the comparison and are easily noticeable in the overall impression created by the signs at issue, and they are sufficient to dispel a likelihood of confusion, despite the imperfect recollection of trade marks in which consumers often place their trust. According to the applicant, since the relevant public will be guided by the visual impact of the mark that they are looking for, the fact that the signs at issue have high visual differences has a relevant impact.
83      EUIPO and the intervener dispute the applicant’s arguments.
84      First of all, in so far as the applicant submits, on several occasions in the application, that the signs at issue produce a sufficiently different overall impression, it should be recalled that it is apparent from the case-law that Article 8(1)(b) of Regulation 2017/1001 is manifestly inapplicable where any similarity between the signs at issue is ruled out. As is clear from the foregoing, the Board of Appeal was right to find that the signs at issue were visually similar to an average degree (see paragraphs 62 to 68 above), phonetically similar to a high degree (see paragraphs 69 to 74 above) and conceptually similar to a low degree (see paragraphs 75 to 78 above). Contrary to what the applicant argues, the signs at issue are therefore not different in any of the three compared aspects.
85      Furthermore, those similarities do not relate solely to elements which have only a low degree of distinctiveness, but are based, as regards the visual (see paragraph 67 above) and phonetic similarity (see paragraph 73 above), also on the similarity of the elements ‘glan’ and ‘plan’.
86      Consequently, the Board of Appeal was right to find that, overall, even for a relevant public with a high level of attention (see paragraphs 24 to 26 above), there was a likelihood of confusion.
87      In so far as the applicant relies on three decisions of the Opposition Division adopted in other proceedings, it should be recalled that decisions concerning the registration of a sign as an EU trade mark which the Boards of Appeal of EUIPO take under Regulation 2017/1001 are adopted in the exercise of circumscribed powers and are not a matter of discretion. Accordingly, the legality of those decisions must be assessed solely on the basis of that regulation, as interpreted by the EU judicature, and not on the basis of a previous decision-making practice (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65).
88      In the present case, unlike what may have been the case in the decisions of the Opposition Division relied on by the applicant, it is apparent from the foregoing considerations that the Board of Appeal did not commit an error of law or of assessment by finding that there was a likelihood of confusion.
89      In so far as the applicant refers to a recent decision of the Intellectual Property Office of New Zealand, also concerning the applicant and the intervener, it is sufficient to recall that the EU trade mark regime is autonomous and that the legality of decisions of the Boards of Appeal is to be assessed solely on the basis of Regulation 2017/1001, with the result that EUIPO or, if an action is brought before it, the General Court, is not required to reach the same conclusions as those arrived at by national authorities or courts in similar circumstances (see judgment of 15 December 2015, LTJ Diffusion v OHIM – Arthur et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 37 and the case-law cited). That is especially true for the administrative practice or case-law of a third country, such as New Zealand, where EU law does not apply. That argument is therefore, in any event, ineffective.
90      In the light of all of the foregoing considerations, since the single plea in law relied on by the applicant in support of its claims cannot be upheld, the action must be dismissed in its entirety.
Costs
91      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.
92      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Ecuphar to bear its own costs and to pay those incurred by Société des produits Nestlé SA;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Buttigieg
Kancheva
Tichy-Fisslberger
Delivered in open court in Luxembourg on 6 May 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.