JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
21 June 2017 (*)
(EU trade mark — Opposition proceedings — Application for EU word mark OCTASA — Earlier German and Benelux word marks PENTASA — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑632/15,
Tillotts Pharma AG, established in Rheinfelden (Switzerland), represented by M. Douglas, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Ferring BV, established in Hoofddorp (Netherlands), represented by D. Slopek, lawyer, and I. Fowler, Solicitor,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 7 September 2015 (Case R 2386/2014-4), relating to opposition proceedings between Ferring and Tillotts Pharma,
THE GENERAL COURT (Fifth Chamber),
composed of D. Gratsias, President, A. Dittrich (Rapporteur) and P.G. Xuereb, Judges,
Registrar: I. Dragan, Administrator,
having regard to the application lodged at the Court Registry on 10 November 2015,
having regard to the response of EUIPO lodged at the Court Registry on 5 January 2016,
having regard to the response of the intervener lodged at the Court Registry on 29 January 2016,
having regard to the written questions put by the Court to the parties and their answers to those questions lodged at the Court Registry on 8, 17 and 18 November 2016,
further to the hearing on 26 January 2017,
gives the following
Judgment
Background to the dispute
1        On 20 March 2009, the applicant, Tillotts Pharma AG, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended (replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)).
2        Registration as a mark was sought for the word sign OCTASA.
3        The goods in respect of which registration was sought are in Class 5 of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, following the limitation made during the proceedings before EUIPO, to the following description: ‘Preparations and substances for preventing and treating diseases and disorders of the gastro-intestinal tract’.
4        The EU trade mark application was published in Community Trade Marks Bulletin No 21/2009 of 8 June 2009.
5        On 8 September 2009, the intervener, Ferring BV, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the mark applied for in respect of the goods covered by that mark.
6        The opposition was based, inter alia, on the following earlier marks:
–        Benelux word mark PENTASA, registered on 1 December 1981, registration No 377513, designating, inter alia, ‘pharmaceutical preparations’ in Class 5;
–        German word mark PENTASA, registered on 8 October 1991, registration No 1181393, designating ‘medicinal products’ in Class 5.
7        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation No 207/2009 and in Article 8(5) of that regulation.
8        Reputation was claimed by the intervener for the earlier German and Benelux marks in relation to all the goods for which those marks were registered. By letter of 21 April 2010, it produced a number of documents to attest to the reputation claimed.
9        On 5 July 2010, the applicant requested proof of genuine use of the earlier trade marks. By letter of 9 November 2010, the intervener produced various documents in order to demonstrate that the earlier marks had been put to genuine use for the purposes of Article 42(2) and (3) of Regulation No 207/2009.
10      On 19 April 2011, the Opposition Division rejected the opposition.
11      On 7 June 2011, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the decision of the Opposition Division.
12      By decision of 6 September 2012 (‘the first decision’), the Fourth Board of Appeal of EUIPO dismissed the appeal.
13      By application lodged at the Court Registry on 19 November 2012, the intervener brought an action before the General Court challenging the first decision.
14      By judgment of 9 April 2014, Ferring v OHIM — Tillotts Pharma (OCTASA), (T‑502/12, not published, EU:T:2014:192), the General Court annulled the first decision. It held that, in that decision, the Board of Appeal had infringed Article 8(1)(b) of Regulation No 207/2009 by refraining from carrying out a global assessment, taking into account all factors relevant to the circumstances of the case, of the likelihood of confusion between the earlier Benelux mark and the mark applied for.
15      On 5 September 2014, the applicant requested that the specification of the list of goods covered by the contested mark be amended to: ‘Preparations and substances for preventing and treating diseases and disorders of the gastro-intestinal tract containing 5-aminosalicylic acid (5-ASA) for sale only by the prescription of a medical practitioner’.
16      By decision of 7 September 2015 (‘the contested decision’), the Fourth Board of Appeal of EUIPO annulled the decision of the Opposition Division, upheld the opposition and refused the application for registration of an EU trade mark. It found that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 between the earlier German and Benelux marks, on the one hand, and the mark applied for, on the other, in relation to the goods covered by the latter.
17      In paragraphs 32 to 35 of the contested decision, the Board of Appeal refused the request for amendment of the specification of the goods covered by the contested mark mentioned in paragraph 3 above.
18      As regards the existence of a likelihood of confusion between the earlier German and Benelux marks, on the one hand, and the mark applied for, on the other, in relation to the goods covered by the latter, the Board of Appeal stated, in paragraph 41 of the contested decision, that the relevant territories for analysing the likelihood of confusion were those of Germany and the Benelux countries, and that the relevant public consisted of the public at large and the professional medical public in those territories. In paragraphs 42 to 47 of the contested decision, the Board of Appeal stated that the intervener had demonstrated that the earlier German and Benelux marks had been put to genuine use for pharmaceutical products prescribed for the treatment of diseases of the gastro-intestinal tract in the relevant territories during the relevant period. In paragraph 48 of that decision, it stated that those products were identical to the goods covered by the mark applied for, that is to say, ‘preparations and substances for preventing and treating diseases and disorders of the gastro-intestinal tract’. In paragraphs 49 to 54 of the contested decision, which concern the comparison of the signs, the Board of Appeal stated that, first of all, visually, there was a certain degree of similarity between the signs and that this was below average. Second, regarding phonetic similarity, it found, again, that there was a certain degree of similarity between the signs and that this was below average. Third, for some users, there was weak conceptual similarity, inasmuch as they would recognise that the first part of the signs, ‘penta’ and ‘octa’, referred to Greek numbers. In paragraphs 45, 46 and 59 of the contested decision, the Board of Appeal held that the intervener had claimed and proved the enhanced distinctiveness of the earlier German and Benelux marks due to their intensive and long-term use. In paragraphs 55 to 61 of the contested decision, the Board of Appeal concluded that, from the point of view of end-users, for whom the descriptive quality of the suffix ‘asa’ had not been established and for whom the first part of the signs refer to Greek numbers, in view of (i) the identity of the goods covered by the marks at issue; (ii) the enhanced distinctiveness of the earlier German and Benelux marks resulting from their use; (iii) the degree of visual and phonetic similarity between the marks at issue; and (iv) their weak conceptual similarity, there was a likelihood of confusion between those marks in relation to the goods covered by the mark applied for, even taking into account a higher level of attentiveness on the part of those users.
Forms of order sought
19      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
20      EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
21      In support of its action, the applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. That plea is divided into three parts. In the first part of the plea, it is alleged that the Board of Appeal failed to take sufficient account of the fact that a medical prescription is required for the medicinal products marketed under the earlier German and Benelux marks. The second part of the plea concerns the claim that the Board of Appeal’s conclusion as to the earlier German and Benelux marks’ enhanced distinctiveness as a result of intensive and long-term use was incorrect. In the context of the third part of the plea, the applicant argues that, contrary to the Board of Appeal’s finding, there was no likelihood of confusion between the marks at issue.
22      EUIPO and the intervener dispute the merits of that plea.
23      In that context, it should be noted that Article 8(1)(b) of Regulation No 207/2009 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, an 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)(ii) of Regulation No 207/2009, ‘earlier trade marks’ means, in particular, trade marks registered in a Member State, or, in the case of Belgium, Luxembourg or the Netherlands, at the Benelux Office for Intellectual Property, with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
24      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
25      For an EU trade mark to be refused registration, moreover, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation No 207/2009 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).
26      In addition, in order to find that there is a likelihood of confusion as referred to in Article 8(1)(b) of Regulation No 207/2009, it is not necessary to find that that likelihood exists for the whole of the relevant public. It is sufficient that it exists for a significant part of that public (see, to that effect, judgment of 10 November 2011, Esprit International v OHIM — Marc O’Polo International (Representation of a letter on a pocket), T‑22/10, not published, EU:T:2011:651, paragraphs 119 to 121 and the case-law cited).
The goods taken into consideration by the Board of Appeal
27      In paragraphs 42 to 47 of the contested decision, the Board of Appeal found that genuine use of the earlier German and Benelux marks, which had been registered in respect of ‘medicinal products’ and ‘pharmaceutical preparations’, had been proved for the sub-category of ‘pharmaceutical products prescribed for the treatment of diseases of the gastro-intestinal tract’. In paragraph 48 of the contested decision, in comparing the goods, the Board of Appeal found that the ‘pharmaceutical products for the treatment of diseases of the gastro-intestinal tract’ were identical to the ‘preparations and substances for preventing and treating diseases and disorders of the gastro-intestinal tract’ covered by the mark applied for.
28      In the context of the first part of the plea, the applicant argues that the Board of Appeal’s reasoning in paragraphs 47 and 48 of the contested decision is inconsistent. On the one hand, in paragraph 47, the Board of Appeal noted that the earlier German and Benelux marks were deemed to be registered in respect only of pharmaceutical products ‘prescribed’ for the treatment of diseases of the gastro-intestinal tract, and thus only in respect of medicinal products for which a medical prescription is required. On the other hand, in paragraph 48, it merely indicated that those marks were deemed to be registered in respect of pharmaceutical products for the treatment of diseases of the gastro-intestinal tract, without specifying that the products concerned were only those for which a medical prescription was required.
29      EUIPO and the intervener contest those arguments.
30      As a preliminary point, it should be noted that the complaint of inconsistency in the Board of Appeal’s reasoning is based on an interpretation of paragraph 47 of the contested decision according to which the Board of Appeal’s conclusion with regard to the proof of use of the earlier German and Benelux marks relates only to pharmaceutical products for the treatment of diseases of the gastro-intestinal tract for which a medical prescription is required.
31      In those circumstances, the Court must examine the scope of the Board of Appeal’s conclusion in paragraph 47 of the contested decision.
32      Contrary to the argument put forward by the applicant, in using the word ‘prescribed’ in paragraph 47 of the contested decision, the Board of Appeal did not intend to limit the sub-category of pharmaceutical products for the treatment of diseases of the gastro-intestinal tract to products for which a medical prescription is required. The context in which that paragraph appears clearly militates against such an interpretation. As is apparent from paragraph 48 of that decision, the Board of Appeal considered that the genuine use to which the earlier German and Benelux marks had been put had been established in respect of all pharmaceutical products used for the treatment of diseases of the gastro-intestinal tract and not only those for which a medical prescription is required. Furthermore, in the context of its assessment of the likelihood of confusion, the Board of Appeal did not take into account only pharmaceutical products for which a medical prescription is required. The fact that the Board of Appeal refused to amend the specification of the goods (see paragraph 17 above) also militates against the interpretation put forward by the applicant.
33      In the light of these points, the Court cannot accept the interpretation of paragraph 47 of the contested decision envisaged by the applicant. On the contrary, it must be held that, in so far as the Board of Appeal made reference in that paragraph to pharmaceutical products ‘prescribed’ for the treatment of diseases of the gastro-intestinal tract, it was seeking to refer to pharmaceutical products intended for the treatment of such diseases.
34      It follows from this that the complaint regarding inconsistency in the Board of Appeal’s reasoning in paragraphs 47 and 48 of the contested decision must be rejected.
The relevant public and its level of attention
35      In paragraphs 41, 51 and 58 of the contested decision, the Board of Appeal found that, with regard to the earlier German and Benelux marks, the relevant territories for analysing the likelihood of confusion were those of Germany and the Benelux, and that the relevant public consisted of healthcare professionals and patients in their capacity as end-users of the pharmaceutical products at issue. According to the Board of Appeal, the latter form a significant part of the relevant public.
36      That finding of the Board of Appeal, which, moreover, the applicant does not challenge, must be upheld. Where the goods in question are medicines, the relevant public must include not only healthcare professionals who are involved in prescribing and marketing the trade mark, but also end-users, both as regards the medicinal products that may be sold freely and those which can only be supplied on prescription (see judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraph 28 and the case-law cited).
37      The fact that intermediaries such as healthcare professionals are liable to influence or even to determine the choice made by the end-users is not, in itself, capable of excluding all likelihood of confusion on the part of those consumers as regards the origin of the goods at issue (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraphs 57 and 58).
38      As to the level of attention of final consumers, in paragraph 58 of the contested decision, the Board of Appeal concluded that this was high. That finding must also be upheld, both in respect of those cases in which a medical prescription is required and in respect of those in which it is not. Where pharmaceutical products are sold without a prescription, it can be assumed that the consumers interested in those products are reasonably well informed, observant and circumspect, since those products affect their state of health, and that they are less likely to confuse different versions of such products. Furthermore, even supposing a medical prescription to be mandatory, consumers are likely to display a high degree of attention when the products in question are prescribed, having regard to the fact that they are pharmaceutical products (see judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraph 28 and the case-law cited).
The comparison of the goods
39      In paragraph 48 of the contested decision, the Board of Appeal found that the ‘pharmaceutical products for the treatment of diseases of the gastro-intestinal tract’ in respect of which the earlier German and Benelux marks were deemed to be registered were identical to the ‘preparations and substances for preventing and treating diseases and disorders of the gastro-intestinal tract’ covered by the mark applied for. The applicant does not challenge that finding of the Board of Appeal which is, moreover, not vitiated by any error.
The comparison of the signs
40      As is apparent from settled case-law, the global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
41      In paragraphs 49 to 54 of the contested decision, the Board of Appeal compared the signs at issue.
42      In paragraphs 51 and 52 of the contested decision, it noted that, visually, the marks at issue differed as regards the first part of the mark, that is to say, ‘oc’ and ‘pen’, and coincided as regards the last part: ‘tasa’. It concluded that it had not been established with respect to end-users that the suffix ‘asa’ was descriptive. Taking these factors into account, the Board of Appeal concluded that, from the point of view of end-users, there was a certain degree of visual similarity between the signs, and that this was below average.
43      In paragraph 53 of the contested decision, the Board of Appeal found that, as regards phonetic similarity, the earlier German and Benelux marks would be pronounced ‘pen-ta-sa’ and the contested mark, ‘oc-ta-sa’. They therefore coincided in their last two syllables but their respective first syllables had nothing in common. Accordingly, there was a certain degree of phonetic similarity — below average — between the signs.
44      In paragraph 54 of the contested decision, the Board of Appeal stated that, conceptually, neither the word ‘octasa’ nor the word ‘pentasa’ as a whole had any meaning. However, for some end-users, namely those who will recognise that the first part of the signs refers to the Greek numbers ‘penta’ and ‘octa’, respectively, there was a conceptual similarity, albeit weak.
45      The applicant submits that those findings are wrong.
46      In the first place, in the context of the first part of the plea, it argues that the Board of Appeal did not make a distinction between the visual comparison and the phonetic comparison of the signs at issue.
47      However, first, as has been set out in paragraphs 42 and 43 above, in the contested decision, the Board of Appeal did make a distinction between the visual and the phonetic comparison.
48      Second, even if it were to be assumed that, by the present complaint, the applicant sought to argue that, given the nature of the goods in question, the phonetic comparison is of lesser importance than the visual comparison, it should be noted that that complaint does not relate to the comparison of the signs as such, but to the weight to be given to the visual and phonetic similarities in the global assessment of the likelihood of confusion. Accordingly, that argument will be taken into consideration in the overall analysis of the likelihood of confusion, in paragraphs 61 to 64 below.
49      Consequently, the complaint that the Board of Appeal did not make a distinction between the visual comparison and the phonetic comparison of the signs at issue must be rejected, subject to the analysis in paragraphs 61 to 64 below.
50      In the second place, in the context of the third part of the plea, the applicant submits that there is only a low, or very low, degree of visual and phonetic similarity between the signs, which is attributable to the presence of the common suffix ‘asa’.
51      Against that background, first, the Court must uphold the Board of Appeal’s finding that the suffix ‘asa’ is not descriptive from the point of view of a significant number of end-users (see, to that effect, judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraphs 42 to 57), which the applicant has not, moreover, called in question.
52      Second, as regards the visual similarity of the signs at issue, it must be held that, contrary to the applicant’s submission, this does not arise only from the fact that the signs at issue have the same suffix: ‘asa’. Visually, the signs are of a similar length — six and seven letters respectively — and the last four letters, ‘tasa’, are the same and are in the same order and position (judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraph 61).
53      Similar considerations apply to the phonetic similarity of the signs at issue. Contrary to what has been argued by the applicant, that similarity does not arise only from the fact that the signs have the same suffix, ‘asa’, but also from the fact that, phonetically, they are identical in length, each having three syllables, and the last two syllables, ‘ta’ and ‘sa’, are identical (judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraph 61).
54      Third, admittedly, the first parts of the marks, ‘oc’ and ‘pen’, differ visually and phonetically and, in principle, the first component of a sign may be more likely to catch the consumer’s attention than subsequent components. However, for an end-user who does not perceive the descriptive character of the suffix ‘asa’ and who perceives the marks at issue as a whole (see paragraph 40 above), those differences between the first parts of the signs at issue cannot negate a certain degree of visual and phonetic similarity (judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraph 61).
55      Consequently, the Court must reject the applicant’s argument that the visual and phonetic similarity between the signs is attributable entirely to the presence in both of the suffix ‘asa’, and must uphold the Board of Appeal’s finding that there is a certain degree of visual and phonetic similarity between the signs at issue, and that it is below average.
56      In that context, the Court must also uphold the Board of Appeal’s conclusion that, for some end-users of the goods in question who understand that the first part of each of the signs refers to the Greek numbers ‘penta’ and ‘octa’, there is a conceptual similarity, albeit weak (see, to that effect, judgment of 9 April 2014, OCTASA, T‑502/12, not published, EU:T:2014:192, paragraphs 63 to 65), which the applicant has not, moreover, called in question.
The likelihood of confusion
57      As has been stated in paragraph 23 above, there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009 if because of the identity of the trade mark applied for with an earlier trade mark, or its similarity thereto, 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.
58      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 (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17).
59      In paragraphs 55 to 60 of the contested decision, the Board of Appeal took into account the perspective of the end-users of pharmaceutical products for the treatment of diseases of the gastro-intestinal tract as a significant part of the relevant public and, more specifically, of those who do not perceive the descriptive character of the common suffix ‘asa’ and, moreover, recognise the first part of the signs at issue as a reference to Greek numbers. It considered that, for that part of the relevant public, notwithstanding its high level of attention, there was a likelihood of confusion between the marks at issue in respect of the goods concerned, having regard to the enhanced level of distinctiveness of the earlier German and Benelux marks resulting from their use, the identity of the goods covered by the marks at issue, the visual and phonetic similarity of the signs, which was below average but not weak, and their weak conceptual similarity.
60      The applicant submits that those findings are wrong.
61      In the first place, the Court must examine the argument put forward by the applicant in the context of the first (see paragraph 48 above) and third parts of the plea, according to which the Board of Appeal had disregarded the fact that, in the case of the mark applied for and the earlier German and Benelux marks, the visual assessment outweighed the phonetic assessment and their phonetic similarity could therefore be disregarded. In that context, the applicant submits that the goods at issue are never ordered orally.
62      It should be borne in mind in that regard that the goods at issue are all pharmaceutical products for the treatment of diseases of the gastro-intestinal tract, and not only those for which a medical prescription is required. Consequently, the applicant’s argument is not capable of calling in question the Board of Appeal’s finding in so far as it is based on pharmaceutical products for which a medical prescription is not required.
63      The argument, in any event, has no basis in fact. Purchases of pharmaceutical products for which a medical prescription is necessary are made with the assistance of a professional and may therefore involve a verbal reference to the marks concerned (judgment of 15 March 2012, Cadila Healthcare v OHIM — Novartis (ZYDUS), T‑288/08, not published, EU:T:2012:124, paragraph 65).
64      Accordingly, that argument must be rejected as unfounded.
65      In the second place, in the third part of the plea, the applicant argues that the substantial differences at the beginning of the marks at issue outweigh the similarity in relation to the endings of those marks.
66      In that regard, first, it must be pointed out that the Board of Appeal did not err in finding that, both visually and phonetically, there was a certain similarity between the marks at issue and that it was below average (see paragraphs 40 to 55 above).
67      Second, the Board of Appeal correctly noted that the visual and phonetic differences at the beginning of the signs were qualified by the conceptual similarity of the signs at issue resulting from the fact that the first part of each of those signs — ‘penta’ and ‘octa’ — refers to Greek numbers.
68      Consequently, this argument of the applicant’s must also be rejected.
69      In the third place, in the first and third parts of the plea, the applicant submits that, in view of the fact that a medical prescription is required, that, in the case of the goods at issue, the consumer’s attention is above average and that final consumers of those products have sufficient time to study the trade marks, the differences between the two signs are sufficient to avoid any likelihood of confusion.
70      First, it should again be borne in mind in that regard that, contrary to the applicant’s submissions, the relevant goods are all pharmaceutical products for the treatment of diseases of the gastro-intestinal tract and not only those for which a medical prescription is required. Consequently, the argument in relation to medicinal products for which a prescription is required cannot call in question the Board of Appeal’s findings in so far as those findings are based on pharmaceutical products for which a medical prescription is not required.
71      In any event, it must be borne in mind that, even though the choice of pharmaceutical products is influenced or determined by intermediaries, such as the doctor issuing the prescription or a pharmacist, a likelihood of confusion may exist for final consumers, since they are likely to be faced with those products, even if that is during separate purchasing transactions for each of those individual products, at various times (judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 58).
72      Second, it must be noted that, notwithstanding the differences between the marks at issue, even for a final consumer with a high level of attention who takes the time to study them, there is a likelihood of confusion in view of the identity of the goods at issue, the fact that the mark applied for and the earlier German and Benelux marks have a certain visual and phonetic similarity that is below average, and weak conceptual similarity, and the fact that the differences between those marks are qualified by the weak conceptual similarity arising from the fact that the first part of each of those signs — ‘penta’ and ‘octa’ — refers to Greek numbers. As EUIPO correctly contends, such a final consumer who does not recognise the descriptive character of the shared suffix ‘asa’ could be led to believe that the marks at issue — whose construction is identical, being composed of a Greek number and the suffix ‘sa’ — identify different lines of pharmaceutical products produced by the same undertaking, which would suffice for a finding that there is a likelihood of confusion (see, to that effect, judgment of 24 September 2014, Sanofi v OHIM — GP Pharm (GEPRAL), T‑493/12, not published, EU:T:2014:807, paragraph 40).
73      In the fourth and final place, the applicant maintains that the Board of Appeal’s conclusion as to the earlier German and Benelux marks’ enhanced distinctiveness as a result of intensive and long-term use is incorrect.
74      In that regard, suffice it to recall that the distinctive character of the earlier mark is one of the factors relevant to the assessment of the likelihood of confusion, and that such distinctiveness is a result of the intrinsic qualities of that mark or of its reputation. Marks with a highly distinctive character enjoy broader protection, and therefore, in a case involving an earlier mark of that kind, the likelihood of confusion is greater. However, the distinctive character of the earlier mark is only one factor among others involved in the assessment of the likelihood of confusion. Thus, the existence of a likelihood of confusion cannot be ruled out even where the distinctive character of the earlier mark is weak (see, to that effect, order of 15 January 2010, Messer Group v Air Products and Chemicals, C‑579/08 P, not published, EU:C:2010:18, paragraphs 68 to 72 and the case-law cited).
75      In the present case, it must be held that the considerations concerning the identity of the goods and the similarity of the mark applied for and the earlier German and Benelux marks, set out in paragraph 72 above, justify upholding the Board of Appeal’s finding as to the existence of a likelihood of confusion, not only in a situation where the earlier marks are highly distinctive because of their use, but also in a situation where they have only a normal level of distinctiveness, on account of their intrinsic distinctiveness.
76      Consequently, the applicant’s complaint that the Board of Appeal erred in its finding with regard to the highly distinctive character of the earlier German and Benelux marks must be rejected, and there is no need to rule on its merits or on the pleas of inadmissibility put forward by EUIPO and the intervener in that respect.
77      It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
78      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Fifth Chamber),
hereby:
1.      Dismisses the action;
2.      Orders Tillotts Pharma AG to pay the costs.
Gratsias
Dittrich
Xuereb
Delivered in open court in Luxembourg on 21 June 2017.
E. Coulon
D. Gratsias
Registrar
President
*      Language of the case: English.