JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
6 November 2024 (*)
( EU trade mark – Opposition proceedings – Application for the EU word mark Cardioflow – Earlier EU word mark CARDIOFORM – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑1146/23,
W.L. Gore & Associates Inc., established in Newark, Delaware (United States), represented by C. Tenkhoff and T. Herzog, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Angiokard med. Spritzguß GmbH, established in Friedeburg (Germany),
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov, President, G. De Baere and D. Petrlík (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, W.L. Gore & Associates Inc., seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 September 2023 (Case R 739/2023-1) (‘the contested decision’).
Background to the dispute
2        On 26 August 2019, Angiokard med. Spritzguß GmbH
filed an application for registration of an EU trade mark with EUIPO in respect of the word sign Cardioflow.
3        The mark applied for covers goods and services in Classes 10, 35 and 42 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding, with regard to the goods in Class 10, to the following description: ‘Disposable, sterile medical equipment for angiography, cardiology, anaesthesia, surgery, infusion, dental and urological applications and their components’.
4        On 23 January 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of those goods in Class 10.
5        The opposition was based on the earlier word mark CARDIOFORM, which covers goods in Class 10 corresponding to the following description: ‘Implant materials (prosthesis) for use in surgery’.
6        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        On 10 February 2023, the Opposition Division partially upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 with regard to the ‘disposable, sterile medical equipment for dental and urological applications and their components’ in Class 10, on the ground that there was a likelihood of confusion. By contrast, it rejected the opposition with regard to the other goods covered by the mark applied for.
8        On 5 April 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division in so far as it had rejected the opposition with regard to the ‘disposable, sterile medical equipment for angiography, cardiology, anaesthesia, surgery and infusion applications and their components’ in Class 10.
9        By the contested decision, the Board of Appeal dismissed the appeal. As regards the comparison of the goods at issue, it found that, in the light of the very specific purpose and method of use of the goods covered by the earlier mark and of the fact that they were manufactured according to particularly high quality standards, those goods were similar to a low degree to the goods covered by the mark applied for. Furthermore, as regards the comparison of the signs at issue, the Board of Appeal concluded that those signs were visually and phonetically similar to a below-average degree and conceptually similar to a low degree. In those circumstances and in view of the low degree of distinctiveness of the earlier mark, the Board of Appeal found that there was no likelihood of confusion between the signs at issue.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs, including those incurred in the course of the proceedings before the Board of Appeal.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is arranged.
Law
12      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 in that the Board of Appeal found that there was no likelihood of confusion between the signs at issue and therefore dismissed its appeal.
13      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. That likelihood of confusion includes the likelihood of association with the earlier trade mark.
14      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 July 2023, Rada Perfumery v EUIPO – Prada (RADA PERFUMES), T‑439/22, not published, EU:T:2023:441, paragraph 20 and the case-law cited).
15      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the signs at issue are identical or similar and that the goods or services which they cover are identical or similar.
Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
16      In the contested decision, the Board of Appeal found that the relevant public was that of the whole of the European Union, that that public consisted either of highly specialised medical professionals or of medical staff with specific knowledge from the ‘procurement’ departments of medical establishments and that the level of attention of such a public was particularly high. The applicant does not dispute those findings.
17      By contrast, the applicant submits that the Board of Appeal erred as regards the assessment of the similarity of the goods at issue, the assessment of the similarity of the signs at issue and the global assessment of the likelihood of confusion.
The comparison of the goods
18      According to the Board of Appeal, the goods covered by the mark applied for, namely, essentially, disposable, sterile medical equipment for angiography, cardiology,
anaesthesia, surgery and
infusion applications and their components, and the goods covered by the earlier mark, namely implant materials (prosthesis) for use in surgery, were similar to a low degree. It found that, although there was a certain degree of complementarity between those goods, because they could be used in surgical operations, their method of use and their medical purpose were fundamentally different. Furthermore, the Board of Appeal took the view that, in the light of the very specific purpose of those implant materials and the risks to health in the event of problems of compatibility of those materials with the patient’s body, their manufacture and distribution had to meet the highest quality standards.
19      The applicant submits that the disposable, sterile medical equipment for angiography, cardiology, anaesthesia, surgery and
infusion applications and their components covered by the mark applied for are similar to at least an average degree to the implant materials (prosthesis) for use in surgery covered by the earlier mark. It argues that that similarity results from the nature and purpose of those two categories of goods. It contends that they fall within the same category of goods and are intended to be used in the course of surgical operations. The applicant submits that, likewise, those goods are subject to the same regulatory standards to ensure their safety and effectiveness. Furthermore, it argues that the disposable medical equipment covered by the mark applied for and the implant materials covered by the earlier mark are complementary. In addition, it claims that the relevant public will perceive the goods at issue as coming from a common commercial source and as sharing the same distribution channels. Lastly, it contends that the end users of those goods are the same, namely medical professionals.
20      EUIPO disputes the applicant’s arguments.
21      According to the case-law, in assessing the similarity of the goods and services at issue, all the relevant factors relating to those goods and services should be taken into account. Those factors include, in particular, their nature, their intended purpose, their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
22      As regards the nature of the goods covered by the signs at issue, namely the disposable, sterile medical equipment for angiography, cardiology, anaesthesia, surgery and
infusion applications and their components covered by the mark applied for (the ‘disposable medical equipment’) and the implant materials (prosthesis) for use in surgery covered by the earlier mark (the ‘surgical implant materials’), it must be stated that those goods fall within the general category of medical products. The fact, however, remains that there are significant differences between the particular characteristics of those goods, as the Board of Appeal, in essence, pointed out. Surgical implant materials must have characteristics which ensure their compatibility with the human body and reduce the risk of rejection. Such intrinsic characteristics of those materials are not inherent in disposable medical equipment which must not, subject to the risk of fatal consequences, remain in the human body.
23      As regards, next, their intended purpose, it is true that the goods at issue have the same general intended purpose, which is that of improving patients’ state of health.
24      However, for the purposes of the assessment of the similarity between medical products, it is their specific intended purpose and not their general intended purpose which is of decisive importance (see, to that effect and by analogy, judgments of 3 May 2023, Laboratorios Ern v EUIPO – Biolark (BIOLARK), T‑459/22, not published, EU:T:2023:237, paragraph 36, and of 7 June 2023, Laboratorios Ern v EUIPO – BRM Extremities (BIOPLAN), T‑543/22, not published, EU:T:2023:320, paragraph 27 and the case-law cited).
25      The specific intended purpose of disposable medical equipment is different from that of surgical implant materials, since the former is intended to be discarded after use, whereas the latter must remain in the patient’s body.
26      From the same perspective, it must be stated that, although both types of goods are used in a medical context, the specific method of use of each of them is different. The method of use of disposable medical equipment consists in, inter alia, facilitating a medical procedure or surgical operation, since that equipment is thrown away thereafter. By contrast, surgical implant materials constitute the actual subject of a surgical operation, the purpose of which is to place them in the human body with a view to their remaining there permanently or for a long period.
27      That said, it must be acknowledged that there is a certain degree of complementarity between disposable medical equipment and surgical implant materials. In that regard, it is apparent from the case-law that goods are complementary if there is a close connection between them, in the sense that one is indispensable or important for the use of the other (see judgment of 11 May 2011, Flaco-Geräte v OHIM – Delgado Sánchez (FLACO), T‑74/10, not published, EU:T:2011:207, paragraph 40 and the case-law cited). In the present case, disposable medical equipment could prove to be indispensable or important in the context of surgical operations which are aimed at placing surgical implant materials in the human body.
28      By contrast, the applicant has not proved that those goods are manufactured by the same undertakings and that they are distributed via the same distribution channels, since it has not submitted any evidence in that regard.
29      In any event, even if the goods at issue were sold by the same traders, it is apparent from the case-law that the fact that medical products may be marketed by the same traders is not necessarily particularly significant, since such traders may offer medical products of different kinds, without the relevant public automatically believing that they have the same origin (see, to that effect and by analogy, judgment of 7 June 2023, BIOPLAN, T‑543/22, not published, EU:T:2023:320, paragraph 36 and the case-law cited).
30      Lastly, although it is true that disposable medical equipment and surgical implant materials are aimed at the same professional consumers, the fact that certain goods may be aimed at the same public is not in itself sufficient for it to be held that there is a similarity between the goods at issue, since goods and services that are aimed at the same consumers are not necessarily all identical or similar (judgment of 7 June 2023, BIOPLAN, T‑543/22, not published, EU:T:2023:320, paragraph 37).
31      It follows from the foregoing that, even though disposable medical equipment and surgical implant materials fall within the same category of goods and are complementary, their nature and their
specific intended purpose and method of use are different.
32      In those circumstances, the Board of Appeal did not make any error of assessment in finding that the goods covered by the signs at issue were similar to a low degree.
33      That finding is not called into question by the applicant’s argument that the goods which are covered by the earlier mark and are marketed under that mark for the purposes of their use in the context of a medical procedure comprise both a disposable element – namely a device for the preparation and monitoring of the patient throughout the course of the implantation – and a non-disposable element – namely the permanent implantable component.
34      In that regard, it must be pointed out that, first, in so far as that argument relates to the circumstances in which the goods covered by the earlier mark are marketed by the applicant itself, that argument is not relevant because, in accordance with settled case-law, in order to assess whether the goods at issue are identical or similar, the group or description of the goods protected by the signs at issue must be taken into account and not the goods actually marketed or to be marketed under those marks (see judgment of 21 December 2022, Simba Toys v EUIPO – Master Gift Import (BIMBA TOYS), T‑129/22, not published, EU:T:2022:845, paragraph 34 and the case-law cited).
35      Secondly, in so far as the applicant’s argument ought to be understood as meaning that it is in actual fact submitting that goods including surgical implant materials and disposable medical equipment often exist on the market, with the result that that factor should have an impact on the assessment of the similarity of the goods at issue, it is sufficient to state that the applicant has not, together with its claim, provided any evidence that is capable of proving that that claim is well founded.
36      Furthermore, the applicant relies on two previous decisions of the Opposition Division and the Board of Appeal respectively, in the former of which surgical implants comprised of artificial materials and medical apparatus and instruments were found to be similar and
in the latter of which medical and surgical implants and surgical, medical and dental apparatus and instruments were found to be similar. However, in addition to the fact that, in its review of legality, the Court is not bound by EUIPO’s decision-making practice (see judgment of 22 June 2022, Beveland v EUIPO – Super B (BUCANERO), T‑29/21, not published, EU:T:2022:388, paragraph 56 and the case-law cited), the goods at issue in those decisions do not strictly coincide with the goods covered by the signs at issue, with the result that those decisions are irrelevant in the present case.
37      In the light of the foregoing, the applicant’s argument that the goods at issue are similar to at least an average degree must be rejected.
The comparison of the signs
38      In order to assess the degree of similarity between the signs at issue, namely Cardioflow and CARDIOFORM, the Board of Appeal first of all found that the relevant public would break them down into their constituent elements. Next, it observed that the element which was common to those two signs, ‘cardio’, would be perceived by the relevant public as being descriptive of the goods at issue and that the additional elements in those signs, ‘flow’ and ‘form’, had a low degree of distinctiveness. The Board of Appeal also found that none of the elements in the signs at issue could be considered to be more dominant than the others.
39      In that context, the Board of Appeal concluded that, in spite of the existence of a term which was common to the signs at issue, namely ‘cardio’, the differences in their additional elements, ‘flow’ and ‘form’, resulted in those signs being visually and phonetically similar to a below-average degree and conceptually similar to a low degree.
40      The applicant submits that the signs at issue are highly similar visually and phonetically and that they are conceptually similar to an average degree. First, it argues that those signs coincide in the element ‘cardio’, even though that element is weakly distinctive. Secondly, it contends that the differences linked to the additional elements ‘flow’ and ‘form’ are not capable of outweighing those similarities.
41      EUIPO disputes the applicant’s arguments.
42      According to the case-law, two marks are similar where, 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 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30 and the case-law cited).
43      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 (see judgment of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE), T‑602/19, not published, EU:T:2020:463, paragraph 25 and the case-law cited).
44      In that regard, it must be stated that, even though the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details, the fact remains that, when perceiving a word sign, that consumer will identify the elements which, for him or her, suggest a specific meaning or resemble words known to him or her (see judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 28 and the case-law cited).
45      Furthermore, it must be pointed out that the greater or lesser degree of distinctiveness of the constituent elements of the signs at issue which are common to the earlier mark and to the mark applied for is one of the relevant factors in assessing the similarity of the signs at issue (see judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 26 and the case-law cited).
46      In that regard, it follows in particular from the case-law that the descriptiveness of an element which is common to two signs considerably reduces the relative importance of such an element in the visual, phonetic and conceptual comparison of those signs, even though its presence must be taken into account (see, to that effect, judgment of 15 October 2020, Laboratorios Ern v EUIPO – Bio-tec Biologische Naturverpackungen (BIOPLAST BIOPLASTICS FOR A BETTER LIFE), T‑2/20, not published, EU:T:2020:493, paragraphs 48, 54 and 59).
47      In particular, where an element which is common to the signs at issue is descriptive, whereas the other elements in those marks have some distinctive character, such an element may be of less importance notwithstanding its length and its position within those marks (see, to that effect, judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 44).
48      In the present case, it must be pointed out at the outset that the applicant has submitted no evidence seeking to call into question the Board of Appeal’s finding that the element ‘cardio’, which is common to both of the signs at issue, is descriptive, since it could indicate to the relevant public that the goods at issue are capable of being used in heart-related medical procedures. Likewise, the applicant has not disputed the Board of Appeal’s findings that the elements ‘form’ and ‘flow’ have a low degree of distinctiveness, since the former is perceived as a reference to the form of the organs on which the medical products in question are used and the latter is perceived as a reference to medical equipment that aims to control, improve or regulate blood flow. Lastly, the applicant has not called into question the Board of Appeal’s finding that the two signs at issue did not have any dominant elements.
49      That said, first, the applicant submits
that the Board of Appeal erred in breaking the signs at issue down into their constituent elements without taking into account the fact that each of those signs actually forms a single word, and that it compared them by disregarding their element in common, namely ‘cardio’, even though that element holds an autonomous position in the overall impression conveyed by the signs at issue because of its length and its position at the beginning of the marks.
50      In that regard, the applicant does not, however, dispute that the relevant public, which consists of medical professionals, has a sufficient command of English. Likewise, it does not deny the fact that that public will perceive the element which is common to the signs at issue, namely ‘cardio’, as a reference to the heart in a medical context and that it will understand the other two elements in those signs, namely ‘form’ and ‘flow’, as alluding, in the case of the former, to the form of the organs on which the medical products in question are used and, in the case of the latter, to medical equipment used for the purposes of regulating or improving blood flow.
51      In those circumstances, the Board of Appeal was right in finding that the relevant public would identify two constituent elements in each of the signs at issue, namely ‘cardio’ and ‘form’ in the earlier mark and ‘cardio’ and ‘flow’ in the mark applied for, and that it would break those marks down into those elements.
52      Furthermore, contrary to what the applicant claims, the Board of Appeal compared the signs at issue, for the purposes of assessing their visual, phonetic and conceptual similarities, having regard to all their constituent elements.
53      In that regard, it must be stated that the Board of Appeal did not disregard the presence of the element ‘cardio’ in the signs at issue. It pointed out, in accordance with the case-law which has been referred to in paragraphs 46 and 47 above, that, despite the fact that those signs coincided in the element ‘cardio’, and notwithstanding the length and the position of that element at the beginning of those signs, that element had to be given less importance in the visual, phonetic and conceptual comparison on account of its descriptiveness. It follows that the Board of Appeal did not deny that the element ‘cardio’ had any importance.
54      In those circumstances, the applicant cannot complain that the Board of Appeal did not take the element ‘cardio’ into account when comparing the signs at issue.
55      Secondly, the applicant submits that the Board of Appeal erred in finding that the signs at issue were similar to a low degree, even though they coincided in the element ‘cardio’ and that element was situated at the beginning of those marks, a position to which consumers, as a general rule, pay particular attention.
56      In that regard, it is first of all true that, from a visual standpoint, the signs at issue are the same length, since they comprise 10 letters. It is also true that those signs overlap as regards their initial element, namely ‘cardio’, and that, as regards their additional elements, those elements have the letters ‘f’ and ‘o’ in common.
57      However, given that it is common ground that the element ‘cardio’ is descriptive, it is apparent from the case-law which has been referred to in paragraphs 46 and 47 above that its relative importance in the context of the visual comparison must be reduced, notwithstanding its position at the beginning of the signs at issue.
58      Furthermore, it must be pointed out that the signs at issue differ in their elements ‘form’ and ‘flow’, which have some distinctive character. More specifically, they differ in the letters ‘r’ and ‘m’ as regards the earlier mark and ‘l’ and ‘w’ as regards the mark applied for.
59      In those circumstances, it must be held that the Board of Appeal was right in finding, in essence, that there was a low degree of visual similarity between the signs at issue.
60      Next, from a phonetic standpoint, the signs at issue are pronounced in English as four syllables, the first three of which are identical and also have the vowels ‘a’, ‘i’ and ‘o’ in common.
61      However, the first three syllables of those signs, namely ‘car’, ‘di’ and ‘o’, constitute the element ‘cardio’, the importance of which must be reduced in the context of the phonetic comparison on account of its descriptiveness. Moreover, there are notable phonetic differences between those signs which are connected with the elements placed at the end of the signs, namely ‘form’ and ‘flow’, elements which, furthermore, have some distinctive character, even though it is weak.
62      Consequently, it must be held that the Board of Appeal was right in finding, in essence, that there was a low degree of phonetic similarity between the two marks.
63      As regards the conceptual comparison, in the first place, it must be stated that the applicant concurs with the Board of Appeal’s assessment that, taken as a whole, the signs at issue do not convey any specific concept.
64      In the second place, as regards the elements, taken individually, of the signs at issue, it must be stated that the importance of the fact that the element that is common to those signs, namely ‘cardio’, refers, for the relevant public, to the same meaning – that is to say, to goods concerning the heart – is reduced by the fact that that element is descriptive. Furthermore, the elements ‘form’ and ‘flow’ in the marks at issue have different meanings for the relevant public, as is apparent from paragraph 50 above.
65      In those circumstances, it must be held that the Board of Appeal was right in finding, in essence, that the marks at issue were conceptually similar to a low degree.
66      In the light of the foregoing, it must be held that the degree of visual, phonetic and conceptual similarity between the signs at issue is low.
67      That finding is not called into question by the applicant’s argument that, in a decision of 15 February 2022 relating to the marks CARDIOSAN and CARDILAN, the Board of Appeal acknowledged that there was a likelihood of confusion, even though the element ‘cardio’ had been found to be descriptive. It must be pointed out that the additional elements in the signs at issue in that decision, namely ‘san’ and ‘lan’, are different from the elements ‘form’ and ‘flow’, with the result that the circumstances which gave rise to that decision are not comparable to those of the present case. Moreover, the mark CARDILAN does not contain the element ‘cardio’ in its entirety, with the result that the elements of which it consists are not distinct as is the case with regard to the signs at issue in the present case.
68      Similarly, the applicant cannot rely on the judgment of 5 October 2020, X-cen-tek v EUIPO – Altenloh, Brinck & Co. (PAX) (T‑847/19, not published, EU:T:2020:472, paragraph 101), according to which the high degree of similarity between the signs at issue was reinforced by the fact that the sole element in the mark applied for was included in its entirety in the earlier mark. Unlike the mark at issue in the case which gave rise to that judgment, the mark applied for Cardioflow does not consist of a single element which is included in the earlier mark.
The likelihood of confusion
69      For the purposes of assessing whether there was a likelihood of confusion, the Board of Appeal found, first of all, that the earlier mark had, as a whole, a low degree of distinctiveness. Next, it found that, in the eyes of the relevant public, the degree of
visual and phonetic similarity between the signs at issue was below average, while there were clear conceptual differences between them. Consequently, the Board of Appeal concluded that the relevant public would differentiate between the signs at issue, with the result that there was no likelihood of confusion between them.
70      In the first place, the applicant criticises the Board of Appeal
for having found that the earlier mark had a low degree of distinctiveness, whereas it submits that it has an average degree of distinctiveness.
71      In that regard, it is apparent from the case-law that, for the purposes of assessing the distinctive character of a mark, an assessment must be made of the greater or lesser capacity of that mark to identify the goods or services for which it was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the mark in the light of whether it is at all descriptive of the goods or services for which it has been registered (see, to that effect, judgment of 7 June 2023, Cassa Centrale v EUIPO – Bankia (BANQUÌ), T‑368/22, not published, EU:T:2023:309,
paragraph 35 and the case-law cited).
72      In the present case, it is apparent from paragraph 51 above that, first, the relevant public will break the earlier mark down into two constituent elements, namely ‘cardio’ and ‘form’. Secondly, the applicant has not adduced any evidence which is capable of calling into question the finding that the term ‘cardio’ is descriptive of the goods covered by that mark, whereas it has not disputed that the term ‘form’ is weakly distinctive.
73      In those circumstances, the Board of Appeal was right in finding that the earlier mark had a low degree of distinctiveness.
74      In the second place, the applicant complains that the Board of Appeal made an error of assessment in not finding that there was a likelihood of confusion. First of all, the applicant argues that, contrary to what the Board of Appeal found, the goods in question covered by the signs at issue are similar. Next, it submits that, when comparing those marks, the Board of Appeal should not, in spite of its descriptiveness, have reduced the importance of the element ‘cardio’, which is common to those marks. Lastly, it contends that the earlier mark has at least an average degree of distinctiveness. It argues that, in the light of the interdependence of the abovementioned factors, the Board of Appeal should thus have found that there was a likelihood of confusion on the part of the relevant public.
75      According to settled case-law, a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (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).
76      It is also settled case-law that the degree of distinctiveness of the earlier mark, which determines the scope of the protection conferred by that mark, is one of the relevant factors for the purpose of assessing the likelihood of confusion. The more distinctive the earlier mark, the greater will be the likelihood of confusion (see judgment of 7 June 2023, BANQUÌ, T‑368/22, not published, EU:T:2023:309, paragraph 34 and the case-law cited).
77      However, the opposite is also true. With regard to a trade mark with a weak distinctive character, which thus has a lesser capacity to identify the goods or services for which it has been registered as coming from a particular undertaking, the degree of similarity between the signs must be high in order to justify a likelihood of confusion, as this would otherwise risk granting excessive protection to that trade mark and its proprietor (see judgment of 7 June 2023, BANQUÌ, T‑368/22, not published, EU:T:2023:309,
paragraph 69 and the case-law cited).
78      In the same vein, where the elements of similarity between two signs are the result of the fact that they have a weakly distinctive component in common, the impact of those elements of similarity on the global assessment of the likelihood of confusion is itself low (see judgment of 28 May 2020, Workspace Group v EUIPO – Technopolis Holding (UMA WORKSPACE), T‑506/19, not published, EU:T:2020:220,
paragraph 58 and the case-law cited).
79      In the present case, the relevant public consists of professionals in the medical sector, whose level of attention is particularly high (see paragraph 16 above).
80      Next, it is apparent from paragraphs 31 and 32 above that the goods covered by the signs at issue are similar to a low degree.
81      Likewise, it is apparent from paragraphs 56 to 66 above that the degree of visual, phonetic and conceptual similarity between the signs at issue is low.
82      Moreover, it has been held in paragraphs 72 and 73 above that the earlier mark has a low degree of distinctiveness. However, in such a situation, in accordance with the case-law referred to in paragraph 77 above, the degree of similarity between the signs at issue must be high for a likelihood of confusion to be held to exist, which is not
the case here.
83      Lastly and above all, the relevant public, which consists of highly specialised medical professionals displaying a particularly high level of attention, will choose the goods at issue with particular care. That public will thus pay less attention to the similarities between the signs at issue relating, in particular, to the existence of a descriptive element, namely ‘cardio’. By contrast, it will pay more attention to the visual, phonetic and conceptual differences between those signs.
84      In those circumstances, and in view of the interdependence of the factors referred to in paragraphs 80 to 82 above, there is no likelihood that the relevant public will believe that the goods covered by the earlier mark and the mark applied for
come from the same undertaking.
85      Consequently, the Board of Appeal did not err in finding that there was no likelihood of confusion.
86      No doubt is cast on that finding by the case-law, relied on by the applicant, according to which, in the context of the global assessment of the likelihood of confusion, account must be taken of the average consumer’s imperfect recollection of the marks concerned (judgment of 20 October 2021, St. Hippolyt v EUIPO – Elephant (Strong like nature), T‑352/20, not published, EU:T:2021:720, paragraph 62).
87      The differences between the goods at issue and the differences between the signs at issue, combined with the particularly high level of attention displayed by the relevant public, leave only little room for the ‘imperfect recollection’ of the signs at issue (see, to that effect, judgments of 28 November 2017, Laboratorios Ern v EUIPO – Sharma (NRIM Life Sciences), T‑909/16, not published, EU:T:2017:843, paragraph 45, and of 12 July 2023, mBank v EUIPO – European Merchant Bank (EMBANK European Merchant Bank), T‑261/22, not published, EU:T:2023:396, paragraph 131).
88      In the light of the foregoing, the single plea relied on by the applicant must be rejected.
89      Consequently, the action must be dismissed in its entirety.
Costs
90      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.
91      Even though the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is arranged. Since no hearing has been arranged, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders each party to bear its own costs.
Kornezov
De Baere
Petrlík
Delivered in open court in Luxembourg on 6 November 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.