JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
6 April 2022 (*)
(EU trade mark – Opposition proceedings – Application for the EU word mark QUEST 9 – Earlier EU word mark QUEX – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Article 94(1) of Regulation 2017/1001 – Articles 95 and 97 of Regulation 2017/1001)
In Case T‑516/20,
Mandelay Magyarország Kereskedelmi Kft. (Mandelay Kft.), established in Szigetszentmiklós (Hungary), represented by V. Luszcz, C. Sár and É. Ulviczki, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by J. Ivanauskas and V. Ruzek, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
QX WORLD Kft., established in Budapest (Hungary), represented by Á. László and B. Mező, lawyers,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 3 June 2020 (Case R 1900/2019-2), relating to opposition proceedings between QX WORLD and Mandelay,
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira (Rapporteur), President, M. Kancheva and T. Perišin, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the application lodged at the Court Registry on 17 August 2020,
having regard to the response of EUIPO lodged at the Court Registry on 16 December 2020,
having regard to the response of the intervener lodged at the Court Registry on 30 November 2020,
further to the hearing on 18 November 2021,
gives the following
Judgment
I.      Background to the dispute
1        On 10 April 2018, the applicant, Mandelay Magyarország Kereskedelmi Kft., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
2        Registration as a mark was sought for the word sign QUEST 9.
3        The goods in respect of which registration was sought are, following the restriction made in the course of the proceedings before EUIPO, in Class 10 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: ‘Bioresonance-based instruments and diagnostic apparatus; medical biofeedback apparatus and instruments’.
4        The trade mark application was published in European Union Trade Marks Bulletin
No 2018/080 of 27 April 2018.
5        On 27 July 2018, the intervener, QX WORLD Kft., filed a notice of opposition pursuant to Article 46 of Regulation 2017/1001 to registration of the mark applied for in respect of all of the goods referred to in paragraph 3 above.
6        The opposition was based on the earlier EU word mark QUEX, which was registered on 25 April 2018 under the number 17510983 in respect of, inter alia, goods in class 10 corresponding to the following description: ‘Biofeedback devices and bioresonance devices that generate microcurrents, electro-magnetic impulses, biophotons and bio-energy information for analysis and therapeutic use and for de-stressing and wellness enhancement’.
7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.
8        On 27 June 2019, the Opposition Division upheld the opposition in respect of all the goods covered by the mark applied for.
9        On 26 August 2019, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against that decision of the Opposition Division.
10      By decision of 3 June 2020 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal. In essence, the Board of Appeal, taking into account the identity of the goods at issue, the average degree of visual and phonetic similarity between the signs at issue and the average degree of distinctiveness of the earlier mark, found that, in spite of the high level of attention of the relevant public, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
II.    Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO and the intervener to pay the costs incurred in the present proceedings and in the proceedings before the Board of Appeal.
12      EUIPO and the intervener contend, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
A.      The issue of whether the documents which have been submitted for the first time before the Court are admissible
13      EUIPO and the intervener claim that Annexes A13, A15 and A20 were not produced during the proceedings before EUIPO. They submit that those documents are new documents which have been submitted for the first time before the Court and are therefore inadmissible. The intervener also adds that Annex A14 was not submitted during the proceedings before EUIPO.
14      At the hearing, the applicant claimed that Annexes B1 and B2 to the intervener’s response were inadmissible, for the same reasons as those set out in the previous paragraph. It also stated that Annex A13 to the application was not new, because it was a screenshot of the content of the internet link which the intervener had submitted before the Board of Appeal.
15      In the present case, it must be pointed out that the documents submitted in Annexes A13, A14, A15 and A20 to the application, which correspond, respectively, to a screenshot of the applicant’s website, information regarding the earlier mark which has been downloaded from a database, an extract from EUIPO’s statistical reports regarding EU trade marks and a video presenting the goods covered by the earlier mark, were not part of the administrative file that the applicant submitted before the Board of Appeal.
16      The same is true of Annexes B1 and B2 to the intervener’s response, which correspond in particular to screenshots of the results of searches on an internet search machine and to screenshots of pages from an online sales website, regarding the goods at issue.
17      It must be borne in mind, in that regard, that the purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it.
18      Consequently, those documents must be excluded as inadmissible, without it being necessary to assess their probative value (see, to that effect, judgment of 10 May 2016, August Storck v EUIPO (Representation of white and blue square-shaped packaging), T‑806/14, not published, EU:T:2016:284, paragraph 15 and the case-law cited).
19      Furthermore, the applicant’s argument that Annex A13 is not new, because it is a screenshot of the content of the internet link which the intervener had submitted before the Board of Appeal, must be rejected. That document does not contain any date, with the result that it does not enable the Court to verify that its content corresponds to the content to which the internet link that was submitted by the intervener before the Board of Appeal pointed at the time. In addition, no reason to justify the belated submission of that document has been given.
B.      Substance
20      In support of the action, the applicant relies, in essence, on three pleas in law, alleging (i) infringement of Article 8(1)(b) of Regulation 2017/1001; (ii) infringement of Articles 95 and 97 of Regulation 2017/1001; and (iii) infringement of Article 94(1) of Regulation 2017/1001.
1.      The first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
21      The applicant claims, in essence, that the Board of Appeal made an error of assessment in finding that there was a likelihood of confusion in the present case. More specifically, the applicant disputes the Board of Appeal’s findings relating to the definition of the relevant public, the distinctive character of the earlier mark and the similarity of the signs at issue.
22      EUIPO and the intervener dispute the applicant’s arguments.
23      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.
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 26 June 2014, Basic v OHIM – Repsol YPF (basic), T‑372/11, EU:T:2014:585, paragraph 21 and the case-law cited).
25      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 26 June 2014, basic, T‑372/11, EU:T:2014:585, paragraph 22 and the case-law cited).
(a)    The relevant public
26      The applicant claims, in essence, that the Board of Appeal made an error of assessment in the contested decision, first, by not specifying the qualifications of the professionals concerned by the goods at issue and, secondly, in finding that ‘medical biofeedback apparatus and instruments’ were also aimed at the general public and not solely at professionals.
27      EUIPO and the intervener dispute the applicant’s arguments.
28      It must be pointed out at the outset that, according to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods or services concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
29      In the present case, the Board of Appeal found, in paragraph 22 of the contested decision, that the relevant territory was, in the light of the earlier mark, the European Union as a whole. However, it stated that the likelihood of confusion would first be assessed with regard to the Italian-speaking public, since that public was most prone to confusion.
30      That assessment on the part of the Board of Appeal, which is not, moreover, disputed by the applicant, must be upheld.
31      The Board of Appeal also found, in paragraph 26 of the contested decision, that the relevant public consisted of professionals as regards ‘bioresonance instruments and apparatus’ and of professionals and the general public as regards ‘medical biofeedback apparatus and instruments’. In addition, it stated that the relevant public displayed a high level of attention, given that the goods at issue were capable of affecting health.
32      Contrary to what the applicant claims, those assessments on the part of the Board of Appeal must be upheld.
33      In the first place, it must be stated, as observed by EUIPO, that the term ‘professional’ which is used by the Board of Appeal in the contested decision refers to the idea of a restricted and specialist category of public, which is likely to have specific knowledge relating to the goods at issue and generally to display a high level of attention.
34      Consequently, the applicant’s first claim is, on the one hand, irrelevant with regard to the global assessment of the likelihood of confusion, because the applicant does not dispute that the goods at issue are aimed at professionals and, on the other hand, unfounded, since it is not apparent either from Regulation 2017/1001 or from the case-law that the Board of Appeal is required to state the qualifications of the persons who are specifically concerned by the identification of a category of relevant public, whether what is concerned is the general public or the professional public. A distinction is drawn solely between the general public and the professional or specialist public, since the global assessment of the likelihood of confusion must be carried out having regard to the average consumer who has the lowest level of attention (see judgment of 8 July 2020, Pablosky v EUIPO – docPrice (mediFLEX easySTEP), T‑21/19, EU:T:2020:310, paragraph 42 and the case-law cited).
35      In the second place, as regards more specifically biofeedback products, it must, first of all, be noted that the goods which fall within Class 10 are essentially medical apparatus, instruments and articles which relate to the health sector, with the result that the applicant’s clarification at the hearing that those goods are medical products is superfluous. Furthermore, it must be borne in mind that the likelihood of confusion is assessed by reference to the consumers’ perception of the goods at issue and not on the basis of particular marketing strategies for those goods, which may vary over time and depend on the wishes of the proprietor of the mark (see judgment of 25 September 2018, Grendene v EUIPO – Hipanema (HIPANEMA), T‑435/17, not published, EU:T:2018:596, paragraph 36 and the case-law cited).
36      Next, it must be stated that the applicant does not dispute the Board of Appeal’s definition of the term ‘biofeedback’. The applicant states in the application that ‘biofeedback’ devices are multi-purpose appliances and that the treatment of incontinence is only one of their numerous possible uses. It follows that those goods, in the light of their nature and their intended purpose, may be of interest both to patients suffering from incontinence and to health professionals. It cannot therefore be ruled out that the general public is part of the relevant public. In that regard, although the applicant claims that those goods are purchased only by professionals, it must be borne in mind that the relevant public for the assessment of the likelihood of confusion consists both of actual consumers and of potential consumers, that is to say, of consumers who currently purchase the goods or services at issue or who might do so in the future (see, to that effect, judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.), T‑408/09, not published, EU:T:2011:241, paragraph 38 and the case-law cited).
37      Lastly, it must be borne in mind that the Court of Justice has already held that, where the goods or services to which the application for registration relates are intended for all consumers, the relevant public must be deemed to consist of average consumers, who are reasonably well informed and reasonably observant and circumspect (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 62 and the case-law cited).
38      Consequently, the applicant cannot criticise the Board of Appeal for finding that ‘medical biofeedback apparatus and instruments’ were aimed both at professionals and at the general public.
39      The same is true of the applicant’s argument that ‘biofeedback’ devices are expensive products, with the result that they are purchased only by professionals. The price is a relevant criterion for the purposes of determining the level of attention of the relevant public (see, to that effect, judgments of 30 April 2013, ABC-One v OHIM (SLIM BELLY), T‑61/12, not published, EU:T:2013:226, paragraph 20, and of 20 October 2021, Intis v EUIPO – Televes (TELEVEND), T‑112/20, not published, EU:T:2021:710, paragraph 25) and not for the purposes of determining the composition of that public.
40      It follows from all of the foregoing that the Board of Appeal did not make an error of assessment as regards the definition of the relevant public. The applicant’s claims must therefore be rejected as, in part, irrelevant and, in part, unfounded.
(b)    The relevant Italian-speaking public’s understanding of the signs at issue
41      The applicant claims that the Board of Appeal made an error of assessment by disregarding the fact that the relevant public has a good level of English. It submits, in essence, that that error affects the Board of Appeal’s finding that, first, the element ‘quest’ in the mark applied for has no meaning for the relevant public and, secondly, the earlier mark QUEX does not refer to the well-known term ‘qx’ which stands for Quantum Xrroid technology and the Quantum Xrroid method. It argues that the goods at issue are aimed at a specialist public which receives its training mostly in English and is, in any event, familiar with the English terminology in that particular field of medicine, with the result that the element ‘quest’ in the mark applied for will immediately be understood as meaning ‘a search, attempt to find’ and the term ‘quex’ in the earlier mark will immediately be understood as a reference to ‘qx’, which is the abbreviation of ‘Quantum Xrroid’.
42      EUIPO and the intervener dispute the applicant’s arguments.
43      It must be pointed out at the outset that the applicant errs in taking the view that, in the contested decision, the Board of Appeal disregarded the relevant public’s level of English.
44      It is true that the Board of Appeal, in paragraph 35 of the contested decision, stated that the signs at issue did not have any meaning in Italian. In that regard it stated, in paragraph 37 of the contested decision, that the term ‘quex’ in the earlier mark would not be perceived as ‘qx’, which meant ‘Quantum Xrroid’, even by the part of the Italian-speaking public which understood English, and that the term ‘quest’ in the mark applied for would not be understood as the English word ‘quest’, which meant ‘pursuit of something’, because it was not a medical term.
45      It must, however, be noted that, first, those assessments on the part of the Board of Appeal were made in the context of the conceptual comparison of the signs at issue and not in the context of a literal interpretation of those signs. In paragraph 35 of the contested decision, the Board of Appeal stated that, conceptually, neither of the signs as a whole had any meaning in Italian, so that no conclusion could be drawn from the conceptual comparison. In paragraph 37 of the contested decision, the Board of Appeal added that, in the light of the goods at issue, the element ‘quest’ in the mark applied for would not be understood by the Italian public as the English word ‘quest’, which meant ‘pursuit of something’, because it was not a medical term. It follows that, contrary to what the applicant claims, the Board of Appeal did not take the view that the relevant public was not in a position to understand the term ‘quest’ on account of its level of English, but that, in the present case, in the light of the nature of the goods at issue, the relevant public would not associate the element ‘quest’ in the mark applied for with the English word ‘quest’.
46      Secondly, the Board of Appeal stated, also in paragraph 37 of the contested decision, that even the Italian public which understood English would not regard the term ‘quex’ in the earlier mark as equivalent to ‘qx’, which meant ‘Quantum Xrroid’. The Board of Appeal also stated, in paragraph 38 of the contested decision, that the applicant had not adduced any evidence which proved that the term ‘quex’ was the usual way of writing ‘qx’ in English and Italian. It follows that, contrary to what the applicant claims, the Board of Appeal’s finding that the earlier mark did not have any meaning for the relevant public did not stem from that public’s level of English, but from the lack of evidence which the applicant had submitted in support of its claims.
47      Thirdly, contrary to what the applicant claims, the contested decision does not contain any inconsistency. Although it is true that, in paragraph 32 of the contested decision, the Board of Appeal stated that English was used throughout the world in medicine and the sciences and that it was understood by Italian medical professionals, it did not, however, rely, as has been stated in paragraph 45 above, on a lack of understanding of that language, but on the applicant’s failure to prove that the element ‘quest’ in the mark applied for was, in the light of the nature of the goods at issue, associated with the English word ‘quest’. Moreover, that observation was preceded by the conjunction ‘even if’, which introduces a qualification. Furthermore, as has been stated in paragraph 45 above, the Board of Appeal did not take the view that the relevant public was not in a position to understand the term in question on account of its level of English, but that, in the light of the nature of the goods at issue, the relevant public would not associate that term with the English word ‘quest’.
48      In addition, it must be pointed out that the applicant’s line of argument focusses on the professional public’s perception of the signs at issue and that the applicant states that the term ‘quest’ is part of basic English vocabulary for those professionals. However, as has been pointed out, in paragraphs 27 to 40 above, the relevant public consists in part of the general public, which does not understand English.
49      In that regard, it must be borne in mind that, according to the case-law, knowledge of a foreign language cannot, in general, be assumed. However, it is apparent from the case-law that many consumers in the European Union know basic English vocabulary, but not other terms or one of their meanings which cannot be considered to be part of that basic vocabulary (see judgment of 23 September 2020, Osório & Gonçalves v EUIPO – Miguel Torres (in.fi.ni.tu.de), T‑601/19, not published, EU:T:2020:422, paragraph 119 and the case-law cited). It is not obvious in the present case that the word ‘quest’ is part of basic English vocabulary. Moreover, the applicant has not provided any evidence to establish that this is the case.
50      In any event, even if the term ‘quest’ were part of basic English vocabulary and it were therefore, as such, capable of being understood by the general public, including the Italian general public, or that public understood the term ‘biofeedback’, as the applicant claims, that does not, however, mean that, when purchasing the goods concerned, it would spontaneously associate the element ‘quest’ in the mark applied for with the English word ‘quest’.
51      It follows from all of the foregoing that the applicant’s claim that the Board of Appeal made an error of assessment by disregarding the fact that the relevant public had a good level of English is unfounded, in the light in particular of the fact that, as has previously been pointed out in paragraph 48 above, the applicant’s arguments exclusively take into account the professional public, but disregard the lack of understanding on the part of the general public, which is part of the relevant public in the present case.
(c)    The comparison of the goods at issue
52      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
53      In paragraph 27 of the contested decision, the Board of Appeal stated that the goods covered by the mark applied for overlapped with some of the goods in respect of which the earlier mark had been registered. It therefore found that the goods at issue were identical.
54      That assessment on the part of the Board of Appeal, which is not, moreover, disputed by the applicant, must be upheld.
(d)    The distinctive character of the earlier mark
55      The applicant submits, in essence, that the Board of Appeal made an error of assessment in finding that the earlier mark had a normal degree of distinctive character. It claims, in that regard, that the relevant public is familiar with the terms ‘qx’ and ‘Quantum Xrroid’, which refer to the goods at issue. It submits that it is common ground between the parties that the letter ‘q’ in the earlier mark is the abbreviation of the term ‘quantum’ and that the letter ‘x’ stands for ‘xrroid’. It argues that it follows that the relevant public perceives the earlier mark as a reference to those terms, with the result that it is descriptive of the goods at issue and therefore weakly, or very weakly, distinctive. Furthermore, it submits that, contrary to the findings of the Board of Appeal, the intervener’s company name is also relevant. According to the applicant, the relevant public will see the intervener’s company name as the commercial origin of the intervener’s goods, which will reinforce their perception that the earlier mark relates to the term ‘qx’.
56      EUIPO and the intervener dispute the applicant’s arguments.
57      It must be pointed out at the outset that the Court of Justice has already held that, in order to avoid infringing Article 8(1)(b) of Regulation 2017/1001, it is necessary to acknowledge that a mark which has been registered has a certain degree of distinctiveness. However, although it must be acknowledged, in the light of the judgment of 24 May 2012, Formula One Licensing v OHIM (C‑196/11 P, EU:C:2012:314, paragraph 47), that a term which constitutes the only element of a mark has some independent distinctive character because it has been registered, that cannot, however, mean that that term must be acknowledged as having such a high degree of distinctiveness that it gives rise to an unconditional right to oppose the registration of every later trade mark in which it appears (see, to that effect, judgment of 7 May 2019, Sona Nutrition v EUIPO – Solgar Holdings (SOLGAR Since 1947 MultiPlus WHOLEFOOD CONCENTRATE MULTIVITAMIN FORMULA), T‑152/18 to T‑155/18, not published, EU:T:2019:294, paragraphs 39 and 40 and the case-law cited).
58      In the present case, the Board of Appeal stated, in paragraph 38 of the contested decision, that, even if the relevant public were to know that ‘Quantum Xrroid’ was abbreviated as ‘qx’, the evidence submitted by the applicant would not prove that the element ‘quex’ was the usual way of writing ‘qx’ in English and even less so in Italian. The Board of Appeal also stated that the intervener’s company name was irrelevant for the purposes of assessing the distinctiveness of the earlier mark. It therefore found that the applicant’s argument that the earlier mark had a low degree of distinctiveness was unfounded and that the earlier mark had a normal degree of inherent distinctive character.
59      In that regard, it must be pointed out that the applicant’s line of argument is based on the premiss that the relevant public, on account, first, of its good level of English, secondly, of its familiarity with the terms ‘qx’ and ‘Quantum Xrroid’ and, thirdly, of the proximity of the earlier mark to the abbreviation ‘qx’, would perceive the earlier mark as an allusion to those terms, thus rendering it largely descriptive and therefore weakly, or even very weakly, distinctive.
60      However, in the first place, as has been pointed out in paragraph 49 above, knowledge of a foreign language cannot, in general, be assumed.
61      In the second place, even if the relevant public were familiar with the terms ‘qx’ and ‘Quantum Xrroid’ and had a good level of English, the applicant has not proved that the relevant public will perceive the earlier mark as a reference to those terms.
62      First, the applicant’s argument that the intervener itself admitted in its written pleadings before the adjudicating bodies of EUIPO that the letters ‘q’ and ‘x’ in the earlier mark were the abbreviations of the terms ‘quantum’ and ‘xrroid’ respectively is irrelevant, because an earlier mark’s distinctive character, and more generally the existence of a likelihood of confusion, must be assessed solely by reference to the relevant public.
63      Secondly, the applicant’s argument that the intervener’s company name is a relevant factor when assessing the distinctive character of the earlier mark is also irrelevant, because the distinctive character of an earlier mark, if that mark does not have a reputation, must be assessed in the light of its inherent characteristics (see, to that effect, judgment of 8 February 2007, Quelle v OHIM – Nars Cosmetics (NARS), T‑88/05, not published, EU:T:2007:45, paragraph 73).
64      Thirdly, the applicant’s claim that the relevant public will disregard the letters ‘u’ and ‘e’ in the earlier mark, in addition to the fact that it is unlikely on account of their central position and the fanciful nature of the earlier mark, is not substantiated by any evidence.
65      It follows from the foregoing that the applicant’s claim that there is proximity between the earlier mark and the terms ‘qx’ and ‘Quantum Xrroid’ is unfounded.
66      Consequently, the Board of Appeal could, without making any error of assessment, find that the earlier mark, in the light of the fact that it had no meaning for the relevant public, had a normal degree of inherent distinctive character.
(e)    The comparison of the signs at issue
67      According to settled case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (see judgment of 1 March 2016, BrandGroup v OHIM – Brauerei S. Riegele, Inh. Riegele (SPEZOOMIX), T‑557/14, not published, EU:T:2016:116, paragraph 29 and the case-law cited).
68      In the present case, the marks to be compared are as follows:
–        the mark applied for is the word sign QUEST 9.
–        the earlier mark is the word sign QUEX.
(1)    The visual similarity
69      The applicant claims that the Board of Appeal made a number of errors of assessment in finding that there was an average degree of visual similarity between the signs at issue. It submits, in essence, first, that the signs at issue are not the same length, which strongly differentiates them. Secondly, it argues that, in the light of the descriptiveness of the letters ‘q’ and ‘u’ in the earlier mark, the very large number of registered trade marks which begin with ‘que’, the large number of words in Italian which begin with ‘que’ and the rare use, in any language, of the letter ‘x’, the relevant public’s attention will focus on the last elements in the signs at issue, which are totally different. It submits that the Board of Appeal also downplayed the importance of the final figure 9 in the mark applied for in its assessment. Thirdly, the applicant argues that the Board of Appeal’s conclusion is at variance with the case-law and with EUIPO’s decision-making practice. It submits that it has been clearly stated by the General Court and by EUIPO that the mere fact that signs at issue coincide in their first three letters, although the remainders of the signs are largely different, does not make it possible to conclude that there is any degree of visual or phonetic similarity.
70      EUIPO and the intervener dispute the applicant’s arguments.
71      The Board of Appeal found, in essence, in paragraph 31 of the contested decision, first, that the beginning of the mark applied for consisted of three of the four letters comprising the earlier mark, which were placed in the same order. It pointed out, in that regard, that consumers normally attach more importance to the beginning of a mark. Secondly, it found that the length of the word elements of the signs at issue was almost the same and that the element ‘9’ in the mark applied for occupied little space. Consequently, it found that there was an average degree of visual similarity between the signs at issue.
72      Contrary to what the applicant claims, that finding on the part of the Board of Appeal must be upheld.
73      It must be pointed out at the outset that the applicant’s line of argument that the relevant public’s attention will, on account of the descriptiveness of the letters ‘q’ and ‘u’ in the earlier mark, the very large number of registered trade marks which begin with ‘que’ and the large number of words in Italian which also begin with ‘que’, focus, as regards the earlier mark, on the letter ‘x’ and, as regards the mark applied for, on the group of letters ‘st’ and on the element ‘9’, is unfounded.
74      First, it has been held in paragraph 66 above that the earlier mark does not, in the light of the goods at issue, have any specific meaning for the relevant public, with the result that the applicant’s claim that the letters ‘q’ and ‘u’ in that sign are descriptive is unfounded. Furthermore, the applicant has not provided any evidence to substantiate that descriptiveness. Moreover, as has been stated in paragraph 62 above, the applicant’s argument that the intervener itself admitted in its written pleadings before EUIPO that the letter ‘q’ in the earlier mark was the abbreviation of the term ‘quantum’ and the letter ‘x’ was the abbreviation of ‘xrroid’ is irrelevant.
75      Secondly, in so far as the applicant claims that the sequence of letters ‘q’, ‘u’ and ‘e’ will be given less attention by the relevant public, on account of its presence in a large number of trade marks which have been registered in the European Union and in a large number of words in Italian, it must be pointed out that that claim is unfounded, since it has been held that those letters do not, in the light of the goods at issue, have any specific meaning. For the purposes of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods for which the mark has been registered (see, to that effect, judgment of 3 September 2010, Companhia Muller de Bebidas v OHIM – Missiato Industria e Comercio (61 A NOSSA ALEGRIA), T‑472/08, EU:T:2010:347, paragraph 47 and the case-law cited).
76      Consequently, it is necessary to examine, as did the Board of Appeal, the signs at issue as a whole.
77      In that regard, first, it must be pointed out that, contrary to what the applicant submits, the mark applied for is not ‘50% longer’ than the earlier mark. The mark applied for consists of five letters and a number, whereas the earlier mark consists of four letters.
78      Secondly, it must be pointed out that, with the exception of the last letter, ‘x’, the three other letters in the earlier mark, ‘q’, ‘u’ and ‘e’, are contained in the mark applied for and are placed in the same order, namely at the beginning of that mark. The signs at issue differ only in the last letter, ‘x’, in the earlier mark and in the letters ‘s’ and ‘t’ and the element ‘9’ in the mark applied for.
79      It follows that, although it is true that the signs at issue differ in their endings, the relevant public will, however, perceive a visual similarity on account of the letters in common ‘q’, ‘u’ and ‘e’, which are situated at the beginnings of those marks, are placed in the same order and represent almost the whole of the earlier mark. It must be borne in mind, first, that consumers, in general, pay more attention to the beginning of a mark than to the ending (see, to that effect, judgment of 19 May 2011, PJ Hungary v OHIM – Pepekillo (PEPEQUILLO), T‑580/08, EU:T:2011:227, paragraph 77 and the case-law cited) and, secondly, that what matters most in the assessment of the visual similarity between two word marks is the presence, in each of them, of several letters in the same order (see, to that effect, judgment of 25 September 2015, Copernicus-Trademarks v OHIM – Bolloré (BLUECO), T‑684/13, EU:T:2015:699, paragraph 46 and the case-law cited).
80      Consequently, the Board of Appeal did not make any error of assessment in finding that the signs at issue were, as a whole, visually similar to an average degree.
81      Furthermore, contrary to what the applicant claims, that finding on the part of the Board of Appeal is not at variance with EUIPO’s decision-making practice and with the case-law of the Court.
82      First of all, as regards the failure to take account of the case-law of the Court according to which the mere coincidence between the first three letters of the signs at issue does not, in the applicant’s view, make it possible to conclude that there is, inter alia, any degree of visual similarity, it must be pointed out that it has been stated in paragraph 79 above that it is accepted that consumers generally pay more attention to the beginning of a mark than to the ending.
83      Next, it must be borne in mind that the merits of the Board of Appeal’s assessment cannot be assessed independently of the facts of the present case, and in particular of the specific characteristics of the signs at issue (see, to that effect, judgment of 4 May 2016, Bodegas Williams & Humbert v EUIPO – Central Hisumer (BOTANIC WILLIAMS & HUMBERT LONDON DRY GIN), T‑193/15, not published, EU:T:2016:266, paragraph 54 and the case-law cited). It has been held, in that regard, in paragraphs 77 to 80 above, that the Board of Appeal was right in finding that the signs at issue were, as a whole, visually similar to an average degree, on account of the letters in common ‘q’, ‘u’ and ‘e’, which are situated at the beginnings of those marks, are placed in the same order and represent almost the whole of the earlier mark.
84      Lastly, as regards the failure to take account of EUIPO’s decision-making practice, it must be stated that it is apparent from settled case-law that the 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 (judgments of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 65, and of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 71).
85      Furthermore, although EUIPO must take into account decisions already taken and consider with especial care whether it should decide in the same way or not, compliance with the principle of legality requires that the examination of any trade mark application be stringent and full and be undertaken in each individual case, since the registration of a sign as a mark depends on specific criteria, which are applicable in the factual circumstances of the particular case (see judgment of 24 October 2019, ZPC Flis v EUIPO – Aldi Einkauf (FLIS Happy Moreno choco), T‑708/18, not published, EU:T:2019:762, paragraph 127 and the case-law cited).
86      In the present case, it has been held in paragraphs 77 to 80 above that the Board of Appeal was right in finding that the signs at issue were, as a whole, visually similar to an average degree, with the result that the applicant cannot usefully rely on earlier decisions of EUIPO for the purposes of casting doubt on the contested decision.
(2)    The phonetic similarity
87      The applicant claims that the Board of Appeal made a number of errors of assessment in finding that there was an average degree of phonetic similarity between the signs at issue. It contends that the pronunciation of the signs at issue is, in any event, totally dissimilar. In that regard, the applicant submits, in essence, first, that the General Court has already ruled that the mere coincidence between the first three sounds of two signs does not justify a finding of phonetic similarity where the remainder of the signs is substantially different. It argues that, in the present case, even if the number 9 in the mark applied for were not pronounced, the difference between the sounds ‘ks’ and ‘st’ is sufficient to exclude any similarity, because only the first three sounds coincide. Secondly, the applicant submits that, in the light of the descriptiveness of the initial letters ‘q’ and ‘u’ in the earlier mark or, at least of the letter ‘q’, the very large number of registered trade marks which begin with ‘que’ and the large number of words in Italian which begin with ‘que’, the relevant public’s attention will focus on the last elements in the signs at issue, which are totally different. Thirdly, the applicant submits that, as it has amply demonstrated, by reason of the relevant public’s familiarity with the abbreviation ‘qx’ and the proximity of the earlier mark to that abbreviation, all the members of the relevant public will pronounce the signs at issue according to their pronunciation in English, even if they speak another language. Fourthly, the applicant argues that the number 9, which will be pronounced, increases the phonetic differences between the signs.
88      EUIPO and the intervener dispute the applicant’s arguments.
89      The Board of Appeal pointed out, in essence, in paragraph 32 of the contested decision, that the syllables in the mark applied for coincided in large part with the one in the earlier mark. It therefore found, first, that, in Italian, the pronunciation of the mark applied for was similar to the pronunciation of the earlier mark, both for the professional public which understood English and for the general public which did not understand it. Secondly, it found that the difference in length between the signs at issue, owing to the addition of the syllables ‘no’ and ‘ve’, which corresponded to the Italian pronunciation of the number 9 in the mark applied for, was not sufficient to attenuate the similarities between the beginnings of the signs. Consequently, it found that there was an average degree of phonetic similarity between the signs at issue. In paragraphs 33 and 34 of the contested decision, the Board of Appeal stated that that finding was not undermined by the declaration of a teacher of Italian which the applicant had attached as an annex.
90      Contrary to what the applicant claims, that finding on the part of the Board of Appeal must be upheld.
91      It must be pointed out at the outset that the applicant’s line of argument does not differ in essence from that which it has put forward with regard to the visual similarity of the signs at issue and the distinctive character of the earlier mark.
92      First, it must be stated that it has been held in paragraph 73 above that the applicant’s line of argument that the relevant public’s attention will, on account of the descriptiveness of the letters ‘q’ and ‘u’ in the earlier mark, the very large number of registered trade marks which begin with ‘que’ and the large number of words in Italian which also begin with ‘que’, focus, as regards the earlier mark, on the letter ‘x’ and, as regards the mark applied for, on the letters ‘st’ and on the number ‘9’, is unfounded. Consequently, it has been held in paragraph 76 above that it is necessary to examine, as did the Board of Appeal, the signs at issue as a whole.
93      Secondly, it has been held in paragraph 65 above that the applicant’s claim that there is proximity between the earlier mark and the terms ‘qx’ and ‘Quantum Xrroid’ is unfounded.
94      Thirdly, it has been pointed out in paragraph 49 above that knowledge of a foreign language cannot, in general, be assumed. Furthermore, it is difficult to establish with certainty how the average consumer will pronounce a word from a foreign language in his or her own language (see, to that effect, judgment of 1 February 2005, SPAG v OHIM – Dann and Backer (HOOLIGAN), T‑57/03, EU:T:2005:29, paragraph 58), and that is particularly so in the present case in which, as is apparent from paragraphs 43 to 50 above and from paragraphs 57 to 66 above, the element ‘quest’ in the mark applied for and the earlier mark do not have any specific meaning for the relevant public with regard to the goods at issue.
95      Consequently, it is necessary to examine, as did the Board of Appeal, the signs at issue according to the rules of pronunciation of the Italian language.
96      In that regard, it must be stated that, although it is true that the signs at issue differ in their numbers of syllables, the last sounds in those signs, the additional element ‘9’ in the mark applied for and the presence of the letter ‘x’ at the end of the earlier mark and the group of letters ‘st’ at the end of the first element in the mark applied for, those differences are not, however, capable of altering the overall phonetic impression. As has been stated in paragraph 79 above, consumers, in general, pay more attention to the beginning of a mark than to the ending. In the present case, the earlier mark and the first element in the mark applied for, ‘quest’, will be pronounced as a single syllable and in a similar way, on account of the letters in common ‘q’, ‘u’ and ‘e’, which are situated at the beginning of those marks and are placed in the same order, with the result that that pronunciation will create, in the mind of the relevant public, an impression of phonetic similarity. Furthermore, that similarity will be attenuated only very slightly by the last letters, since the pronunciation and the sound of those elements, namely ‘kweks’ as regards the earlier mark and ‘kwest’ as regards the first element in the mark applied for, remain very similar in Italian. The element ‘9’ in the mark applied cannot therefore on its own call that similarity into question.
97      Consequently, as was the case with the visual similarity, the presence of the letters in common ‘q’, ‘u’ and ‘e’ at the beginning of the signs constitutes a definite indication of their similarity and permits the inference that those signs are, as a whole, phonetically similar to an average degree. Consequently, the Board of Appeal did not make any error of assessment in finding that the signs at issue were phonetically similar to an average degree.
98      Furthermore, as has been held in paragraph 81 above, that finding on the part of the Board of Appeal is not at variance with the case-law of the Court.
99      That finding cannot be called into question by the declaration of a teacher of Italian which is contained in Annex A10 to the application. It is sufficient to point out, as the Board of Appeal observed in paragraphs 33 and 34 of the contested decision, that that declaration, which confines itself to stating that the signs at issue are not phonetically similar, since the earlier mark has no meaning in Italian, whereas the element ‘quest’ in the mark applied for, which could be construed as the abbreviated form of the Italian terms ‘questione’ or ‘questionnario’, is easy to pronounce because it consists of letters which can be found in the Italian alphabet, is not substantiated by any convincing reasoning.
(3)    The conceptual similarity
100    The applicant claims, in essence, that the signs at issue are conceptually dissimilar. In that regard, it submits, first, that it has demonstrated that the whole of the relevant public will perceive the signs at issue on the basis of its knowledge of English, with the result that it will interpret the element ‘quest’ in the mark applied for as the English term meaning ‘pursuit of something’ or ‘search for something’. Secondly, it submits that, in view of the proximity between the earlier mark and the abbreviation ‘qx’, the relevant public will immediately interpret that mark as an allusion to Quantum Xrroid technology.
101    EUIPO and the intervener dispute the applicant’s arguments.
102    The Board of Appeal found, in paragraph 35 of the contested decision, that neither of the signs at issue as a whole had any meaning in Italian, with the result that no conclusion could be drawn from the conceptual comparison.
103    The applicant disputes that finding on the part of the Board of Appeal and claims that the signs at issue are conceptually dissimilar.
104    It must be pointed out at the outset that the applicant’s line of argument does not differ from that which it has put forward with regard to the meaning of the signs at issue and the distinctive character of the earlier mark.
105    In that regard, it has been held in paragraphs 43 to 50 above and in paragraphs 57 to 66 above that the earlier mark and the element ‘quest’ in the mark applied for do not have any specific meaning for the relevant public with regard to the goods at issue. Furthermore, it must be pointed out, as the Board of Appeal observed in paragraph 37 of the contested decision, that the element ‘9’ in the mark applied for also does not have any specific meaning.
106    According to the case-law, when the relevant public does not understand the meaning of the words of which marks consist, it is impossible to carry out a conceptual comparison (see judgment of 23 October 2017, Tetra Pharm (1997) v EUIPO – Sebapharma (SeboCalm), T‑441/16, not published, EU:T:2017:747, paragraph 66 and the case-law cited).
107    Consequently, since the two signs are fanciful and devoid of any specific meaning or of any semantic content for the relevant public, it must be held that a conceptual comparison is not possible in the present case.
108    The Board of Appeal did not therefore make any error of assessment in finding that it was impossible in the present case to carry out a conceptual comparison of the signs at issue.
109    In the light of all of the foregoing, it must be held that the signs at issue are visually and phonetically similar to an average degree and that the conceptual comparison is neutral.
110    Consequently, it must be held that the signs at issue are similar overall.
(f)    The global assessment of the likelihood of confusion
111    The applicant claims, in essence, that, although the goods at issue are identical, the visual, phonetic and conceptual differences between the signs at issue make it possible to rule out any likelihood of confusion on the part of the relevant public, in accordance with the judgment of 20 April 2005, Krüger v OHIM – Calpis (CALPICO) (T‑273/02, EU:T:2005:134). In the alternative, the applicant submits that, even if the signs at issue displayed a low or average degree of similarity, the high level of attention of the relevant public and the low degree of distinctiveness of the earlier mark would be sufficient to counteract that similarity and rule out any likelihood of confusion.
112    EUIPO and the intervener dispute the applicant’s arguments.
113    In the present case, the Board of Appeal, taking into account the identity of the goods at issue and the average degree of visual and phonetic similarity between the signs at issue, which was not counteracted by any relevant conceptual difference, found, in paragraph 39 of the contested decision, that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, notwithstanding a high level of attention on the part of the relevant public.
114    In that regard, it must be borne in mind that a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
115    In addition, it must be stated that the average consumer only rarely has a chance to compare the various marks directly, so he or she must rely on his or her imperfect recollection of them (see judgment of 19 October 2017, Aldi v EUIPO – Sky (SKYLITe), T‑736/15, not published, EU:T:2017:729, paragraph 119 and the case-law cited).
116    It is apparent from the foregoing that, first, the signs at issue are visually and phonetically similar to an average degree, secondly, the goods at issue are identical and, thirdly, the earlier mark has a normal degree of inherent distinctive character.
117    It follows that, in the context of a global assessment of the likelihood of confusion, it must be held, in the present case, that there is a likelihood of confusion, in spite of a high level of attention on the part of the relevant public. That high level of attention on the part of the relevant public is not sufficient to exclude the possibility that the relevant public might be led to think that the mark applied for constitutes an alternative version of the earlier mark (see judgment of 16 December 2010, Longevity Health Products v OHIM – Gruppo Lepetit (RESVEROL), T‑363/09, not published, EU:T:2010:538, paragraph 33 and the case-law cited).
118    The Board of Appeal did not therefore make any error of assessment in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
119    The present plea must therefore be rejected as unfounded.
2.      The second plea, alleging infringement of Articles 95 and 97 of Regulation 2017/1001
120    The applicant submits that, by basing its findings on arguments that none of the parties had made and on non-existent evidence, the Board of Appeal infringed Articles 95 and 97 of Regulation 2017/1001. It contends in that regard that, contrary to what the Board of Appeal stated in paragraph 26 of the contested decision, the intervener did not argue or prove that medical biofeedback apparatus and instruments were aimed both at professionals and at the general public. It claims, first, that the intervener’s claim that the goods could also be bought by anyone without a medical qualification is ineffective. It argues that only the real customers’ perception is relevant for the purposes of the assessment of the likelihood of confusion. Furthermore, it submits that the intervener merely mentioned biofeedback devices, without specifying that they are medical devices which are aimed at the general public. Secondly, the applicant claims that the intervener, in support of its claim, provided only an internet link, which does not meet the standard of proof and cannot be relied on as evidence by EUIPO.
121    EUIPO and the intervener dispute the applicant’s arguments.
122    Article 95(1) of Regulation 2017/1001 provides that:
‘… in proceedings relating to relative grounds for refusal of registration, the Office shall be restricted in this examination to the facts, evidence and arguments provided by the parties and the relief sought. …’
123    Article 97(1)(c) of Regulation 2017/1001 states that:
‘In any proceedings before the Office, the means of giving or obtaining evidence shall include the following:
…
(c)      the production of documents and items of evidence;
…’
124    The Board of Appeal stated, in paragraph 26 of the contested decision, that biofeedback was a process whereby electronic monitoring of a normally automatic bodily function was used to train someone to acquire voluntary control of that function. It pointed out that it was not only used by medical professionals, but also by patients at home (for example, for treating incontinence). It stated that medical biofeedback apparatus and instruments were therefore aimed both at professionals and at the general public, as argued and shown by the intervener.
125    It must be pointed out at the outset that it has been held in paragraph 40 above that the Board of Appeal did not make an error of assessment as regards the definition of the relevant public and that the applicant’s claims in that regard therefore had to be rejected.
126    First, as regards the first claim, it is sufficient to point out, as observed by EUIPO, that the applicant itself submits in the application that the intervener claimed, during the proceedings before the adjudicating bodies of EUIPO, that the goods at issue could also be bought by anyone without a medical qualification. It is apparent from paragraph 8 of the intervener’s observations in response to the applicant’s appeal before the Board of Appeal that the intervener stated that the Opposition Division had correctly established that the goods at issue were aimed both at the general public and at business customers with specific professional knowledge or expertise. The intervener stated that, even though biofeedback devices were mainly bought by therapists, anyone without a medical qualification could also buy the applicant’s goods and the intervener’s goods. It also stated that the applicant’s argument that the goods were intended only for professionals was unfounded. It is also apparent from paragraph 8 of the intervener’s observations before the Opposition Division that it had already submitted that the goods at issue were aimed at all consumers, a submission which was not, moreover, then disputed by the applicant.
127    Furthermore, it must be pointed out that the applicant’s line of argument is based on the incorrect premiss that only the real customers’ perception is relevant for the purposes of the assessment of the likelihood of confusion. However, as has already been pointed out in paragraph 36 above, the relevant public for the assessment of the likelihood of confusion consists both of actual consumers and of potential consumers, that is to say, of consumers who currently purchase the goods or services at issue or who might do so in the future.
128    The claim must therefore be rejected as unfounded.
129    Secondly, as regards the second claim, it is sufficient to point out that the Board of Appeal, in paragraph 26 of the contested decision, found, in the light of the characteristics of the goods in question, that those goods were also aimed at the general public, since they could be used by patients at home for treating, for example, incontinence, and did not make that finding on the basis of the internet link which the intervener had cited as a footnote to its observations in response to the applicant’s appeal before the Board of Appeal, a link which does not concern the treatment of incontinence. Furthermore, as regards those goods, the Board of Appeal upheld the Opposition Division’s identification of the relevant public. In addition, it is apparent from paragraph 126 above that it was, at that point in time, common ground between the parties that the goods in question were aimed at all the consumers.
130    The claim must therefore be rejected as unfounded.
131    Moreover, it must be pointed out that in the judgment of 7 February 2007, Kustom Musical Amplification v OHIM (Shape of a guitar) (T‑317/05, EU:T:2007:39), which the applicant refers to in support of its claim, the Court found, in the light of the circumstances of that case, that the Board of Appeal had infringed Article 94 of Regulation 2017/1001 by taking into account, in its assessment, internet links the content of which had become inaccessible at the time of the Court’s investigation of the case or had changed or might have changed. However, the applicant does not in the present case in any way rely on such circumstances, with the result that the analogy made is, in any event, ineffective.
132     The present plea must therefore be rejected as unfounded.
3.      The third plea, alleging infringement of Article 94(1) of Regulation 2017/1001
133    The applicant submits, first, that the extremely succinct reasoning of the Board of Appeal does not make it possible to understand the reasons underpinning its conclusions according to which the general public is included in the relevant public which purchases medical biofeedback apparatus and instruments and the public for bioresonance devices is made up of professionals and not of competent therapists trained in bioresonance and biofeedback medicine. It argues that the reasoning in the contested decision also does not make it possible to understand which argument and which evidence submitted by the intervener served as a basis for those conclusions and why the arguments and evidence submitted by the applicant were rejected. Secondly, it submits that the contested decision does not make it possible to understand why the Italian language was chosen as the reference language, although the Board of Appeal recognised that English was used throughout the world in medicine and the sciences. The applicant states that it also cannot discern from the reasoning in the contested decision why the Board of Appeal excluded from its analysis all of the arguments which it had put forward and evidence which it had provided in order to support the statement that the perception of the customers is based on the English language.
134    EUIPO and the intervener dispute the applicant’s arguments.
135    In that regard, it must be borne in mind that the first sentence of Article 94(1) of Regulation 2017/1001 provides that decisions of EUIPO must state the reasons on which they are based. That obligation to state reasons has the same scope as that under Article 296 TFEU, pursuant to which the reasoning of the author of the act must be shown clearly and unequivocally. It has two purposes: to allow interested parties to know the justification for the measure taken so as to enable them to protect their rights and to enable the Courts of the European Union to exercise their power to review the legality of the decision. It is not necessary for the reasoning to address all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 12 March 2020, Maternus v EUIPO – adp Gauselmann (Jokers WILD Casino), T‑321/19, not published, EU:T:2020:101, paragraph 15 and the case-law cited).
136    Furthermore, the obligation to state reasons does not require the Boards of Appeal to provide an account that follows exhaustively and one by one all the lines of reasoning articulated by the parties before them. It is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision (see judgment of 12 March 2020, Jokers WILD Casino, T‑321/19, not published, EU:T:2020:101, paragraph 16 and the case-law cited).
137    In addition, the reasoning may be implicit, on condition that it enables the persons concerned to know the reasons for the Board of Appeal’s decision and provides the competent Court with sufficient material for it to exercise its review (see judgment of 12 March 2020, Jokers WILD Casino, T‑321/19, not published, EU:T:2020:101, paragraph 17 and the case-law cited).
138    Lastly, the obligation to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 26 September 2017, La Rocca v EUIPO (Take your time Pay After), T‑755/16, not published, EU:T:2017:663, paragraph 42 and the case-law cited).
139    However, as is apparent from paragraphs 29 to 40 and 44 to 50 above, the Board of Appeal, in accordance with the first sentence of Article 94(1) of Regulation 2017/1001, set out in a clear and unequivocal manner the reasons which led in the present case to the definition of the relevant public. Furthermore, the Board of Appeal’s statement of reasons enabled the applicant to understand the contested decision and to bring an action disputing its merits and then enabled the Court to exercise its power of review. Consequently, the applicant’s arguments are irrelevant and must be rejected.
140    The present plea must therefore be rejected as unfounded.
141    In the light of all of the foregoing considerations, the action must be dismissed in its entirety as unfounded.
Costs
142    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.
143    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 (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Mandelay Magyarország Kereskedelmi Kft. to bear its own costs and to pay those incurred by the European Union Intellectual Property Office (EUIPO) and by QX WORLD Kft.
Costeira
Kancheva
Perišin
Delivered in open court in Luxembourg on 6 April 2022.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.