JUDGMENT OF THE GENERAL COURT (Second Chamber)
29 April 2026 (*)
( EU trade mark – Opposition Proceedings – Application for the EU figurative mark ALFAVET – Earlier EU figurative mark alfavet – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑403/25,
Groupvet EE, established in Thessaloniki (Greece), represented by O. Dimina, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
alfavet Tierarzneimittel GmbH, established in Neumünster (Germany), represented by D. Sprenger, lawyer,
THE GENERAL COURT (Second Chamber),
composed of N. Półtorak (Rapporteur), President, J. Martín y Pérez de Nanclares and G. Hesse, 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, Groupvet EE, seeks the annulment of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 April 2025 (Case R 1869/2024-1) (‘the contested decision’).
Background to the dispute
2        On 7 January 2023, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3        The mark applied for covered goods and services in Classes 3, 10, 18, 21, 31 and 44 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, for each of those classes, to the following description:
–        Class 3: ‘Deodorants for animals; Cosmetics for animals; Non-medicated paw balms for pets; Dental care preparations for animals; Animal grooming preparations; Cleaning preparations for use in livestock farming; Preparations and products for fur care; Bath preparations for animals; Skin care products for animals; Shampoos for animals [non medicated grooming preparations]; Conditioning sprays for animals; Pet odor
removers’;
–        Class 10: ‘Pliers for veterinary use; Pumps for veterinary use; Gloves for veterinary use; Straws for veterinary use; Dental pliers for veterinary purposes; Disposable gloves for veterinary use; Detecting instruments for veterinary use; Protective visors for veterinary use; Bandages [supportive] for veterinary use; Elastrators for veterinary purposes;
Ultrasonic cleaning instruments for veterinary use; Protective nose masks for veterinary use; Protective mouth masks for veterinary use; Umbilical cord clamps for veterinary purposes; Blood collection bags for veterinary purposes; Elizabethan collars for veterinary use’;
–        Class 18: ‘Rain sheets for horses; Halters; Horse collars; Martingales; Leggings for animals; Dog waste bag dispensers adapted for use with leashes; Saddlery; Dog bellybands; Whips; Leads for animals; Covers and wraps for animals; Nose bags [feed bags]; Collars for pets; Collars for pets bearing medical information; Collars for animals; Muzzles; Animal carriers [bags]; Clothing for pets’;
–        Class 21: ‘Deshedding brushes for pets; Fur brushes for animals; Brushes for pets; Animal grooming gloves; Pet feeding and drinking bowls; Litter trays for birds; Rings for birds; Containers for bird food; Drinking troughs; Plastic containers for dispensing food to pets; Electronic pet feeders; Litter boxes for pets; Cages for household pets; Metal pans for cattle; Non-mechanized animal feeders; Feeding troughs; Animal activated livestock waterers; Litter scoops for use with pet animals; Combs for use on domestic animals’;
–        Class 31: ‘Foodstuffs for farm animals; Pet food; Bird food;’
–        Class 44: ‘Animal clipping; Grooming salon services for pet animals; Advisory services relating to the care of pet animals; Hygienic and beauty care for animals; Advisory services relating to the care of animals; Services for the care of pet animals; Sterilising of animals; Veterinary and agricultural services; Semen extraction (Animal -); Veterinary services (Professional consultancy relating to -); Providing veterinary information; Providing information relating to animal breeding; Advice relating to the feeding of animals; Chiropractic services for animals; Animal spaying and neutering services; Veterinary information services provided via the Internet; Animal feed rationing service; Pet hospital services’.
4        On 28 March 2023, Ms Loretta Philipp filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above. Ms Loretta Philipp is the predecessor in law of the intervener, alfavet Tierarzneimittel GmbH, whose right to the earlier mark was registered by EUIPO on 26 February 2025.
5        The opposition was based, inter alia, on the following earlier EU figurative mark:
6        That earlier mark covered goods in Classes 3, 5 and 31, corresponding, for each of those classes, to the following description:
–        Class 3: ‘Laundry preparations; Bleaching preparations; Furbishing preparations; Polishing preparations; Grease removing preparations; Grinding preparations; Soap; Perfumery; Ethereal oils; Cosmetics; Hair lotions; Dentifrices’;
–        Class 5: ‘Veterinary preparations; Chemical preparations for veterinary purposes; Pharmaceutical preparations for animals; Lotions for veterinary purposes; Food for babies; Dietary supplements for animals; Medicated additives for animal foods; Vitamins for animals; Trace element preparations for use by animals; Disinfectants; Insecticides; Fungicides; Herbicides; Teeth filling material; Dental impression materials; Preparations for destroying noxious animals; Medicated
supplements for foodstuffs for animals; Mineral dietary supplements for animals; Mineral supplements for feeding livestock; Dietetic substances adapted for veterinary use’;
–        Class 31: ‘Agricultural products, not included in other classes; Horticultural
products (not included in other classes); Forestry products not included in other classes; Live animals; Fresh fruits, nuts, vegetables and herbs; Sowing seeds; Natural plants; Flowers; Animal foodstuffs; Foodstuffs and fodder for animals; Strengthening animal forage; Malt’.
7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
8        On 19 August 2024, the Opposition Division upheld the opposition based, inter alia, on the earlier mark and rejected the application for registration of the mark applied for in respect of all the goods and services covered with the exception of ‘gloves for veterinary use; disposable gloves for veterinary use; protective visors for veterinary use; protective nose masks for veterinary use; protective mouth masks for veterinary use’ in Class 10.
9        On 23 September 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
10      By the contested decision, the First Board of Appeal upheld the appeal in part, annulling the decision of the Opposition Division, as regards all the goods in Classes 18 and 21 and ‘ultrasonic cleaning instruments for veterinary use; umbilical cord clamps for veterinary purposes; Elizabethan collars for veterinary use’ in Class 10.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision in so far as it rejected the application for registration in respect of all the goods and services in Classes 3, 31 and 44 and, in part, those in Class 10;
–        order EUIPO to pay the costs;
–        order the intervener to bear its own costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
13      The intervener contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
14      The applicant puts forward, in essence, three pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001, on account of an incorrect application of the criteria relating to the likelihood of confusion; second, bad faith on the part of the intervener; and, third, the lack of standing of Ms Loretta Philipp before EUIPO.
15      It is appropriate to begin by examining the third plea in the application.
The third plea in law, alleging that the intervener’s predecessor in law lacked standing to bring proceedings before EUIPO
16      The applicant submits that the opposition filed by Ms Loretta Philipp should have been declared inadmissible on the ground of lack of standing to file the opposition, in so far as the earlier mark is used exclusively by the intervener.
17      EUIPO and the intervener dispute the applicant’s line of argument. In particular, EUIPO submits that the present plea is inadmissible since the applicant has not identified the relevant legal basis for understanding how the use of the earlier mark by the intervener or its subsequent transfer renders the opposition proceedings inadmissible from the outset.
18      It must be borne in mind that, under Article 46(1)(a) of Regulation 2017/1001, within a period of three months following the publication of an EU trade mark application, notice of opposition to registration of the trade mark may be given on the grounds that it may not be registered under Article 8 thereof. In respect, as in the present case, of Article 8(1)(b) of that regulation, notices of opposition may be filed, inter alia, by the proprietors of EU trade marks with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.
19      In the present case, it is common ground that, at the time when she filed her notice of opposition to registration of the mark applied for, namely 28 March 2023, Ms Loretta Philipp was the proprietor of the earlier mark. Thus, Ms Loretta Philipp had standing to file the opposition under Article 46(1)(b) of Regulation 2017/1001, without this being precluded by the fact, even if it were established, that the earlier mark was used exclusively by the intervener.
20      Accordingly, the third plea in law must be rejected as unfounded, without there being any need to rule on the admissibility of that plea.
The second plea in law, alleging bad faith on the part of the intervener
21      The applicant submits that an EU trade mark identical to the earlier mark was ‘re‑filed’ in 2021 by the intervener solely to avoid the obligation to prove genuine use of another of its marks, registered in 2015 under number 13522991, not used outside Germany, and that, in so doing, the intervener derives an advantage from that abuse of procedure in the present case.
22      EUIPO and the intervener dispute the applicant’s line of argument.
23      In the present case, the applicant must be regarded as alleging, in essence, bad faith on the part of the intervener when it filed the application for registration of the earlier mark.
24      In that respect, it should be noted that, by contrast with the invalidity procedure, which allows the applicant for an EU mark to contest the validity of an earlier mark, and as follows unambiguously from Article 46(1) of Regulation 2017/1001, the aim of the opposition procedure is to give proprietors of rights the possibility of contesting an application for an EU mark on the basis of earlier rights which conflict with it. More specifically, according to the case-law, in the context of an opposition procedure, EUIPO is even required to presume that the earlier mark is valid (see judgment of 16 May 2019, KID-Systeme v EUIPO –
Sky (SKYFi), T‑354/18, not published, EU:T:2019:333, paragraph 46 and the case-law cited).
25      Accordingly, in the opposition procedure, EUIPO cannot examine whether the criteria that constitute a ground of invalidity, such as those referred to in Article 59(1)(b) of Regulation 2017/1001 are fulfilled, as regards the mark relied on in support of the opposition. Neither Article 46 nor Article 47 of Regulation 2017/1001 provide a procedural mechanism that allows the validity of an earlier mark to be contested in view of the bad faith of the opposing party (judgment of 16 May 2019, SKYFi, T‑354/18, not published, EU:T:2019:333, paragraph 47).
26      In the present case, the contested decision does not rule on the validity of the registration of the earlier mark and does not therefore in any way refer to the existence or absence of bad faith on the date on which the application for registration of that mark was filed. It follows from the case-law cited in paragraph 25 above that, contrary to what the applicant claims, EUIPO was not required, in the context of the opposition proceedings, to examine whether the intervener acted in bad faith, as might have been the case at the time of filing the application for registration of the earlier mark.
27      The second plea in law must therefore be rejected as unfounded.
The first plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
28      The applicant submits, in essence, that the Board of Appeal infringed Article 8(1)(b) of Regulation 2017/1001 in that it carried out an incorrect assessment of, first, the relevant public and territory, second, the similarity of the goods and services, third, the comparison of the marks at issue and, fourth, the existence of a likelihood of confusion.
29      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.
30      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM –
Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited).
31      For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
32      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods/services in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM –
Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76
and the case-law cited).
The relevant public and territory
33      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).
34      In the present case, in paragraph 22 of the contested decision, the Board of Appeal found, in essence, that all the goods and services covered by the marks at issue, all intended for animals, were aimed at the general public, in particular animal owners and professionals such as breeders or veterinarians, and that the level of attention could vary from average, for the goods in Classes 3 and 31, to high, in particular for the goods and services in Classes 5, 10 and 44. Next, in paragraph 23 of the contested decision, the Board of Appeal stated that, since the opposition raised in the present case had been based on an earlier EU trade mark, the likelihood of confusion had to be assessed throughout the territory of the European Union.
35      The applicant challenges that assessment, submitting that, although the mark applied for is indeed aimed at the general public, that is to say, pet owners and breeders, the earlier mark is different, since it is aimed exclusively at veterinarians. Furthermore, according to the applicant, the earlier mark is used only in Germany and, therefore, the marks at issue are not used either on the same EU markets or in the same channels of trade.
36      EUIPO and the intervener dispute the applicant’s arguments.
37      In that regard, it should be noted that, although the applicant disputes the Board of Appeal’s assessment that the goods covered by the earlier mark are intended for the general public, in particular pet owners and breeders, it does not put forward any argument or item of evidence capable of demonstrating that the earlier mark is aimed exclusively at the professional public.
38      Although ‘veterinary preparations’ or ‘teeth filling material’ in Class 5 may be regarded as being aimed exclusively at veterinarians, as noted in paragraph 34 of the contested decision, that is not the case for the other goods in that class, in particular ‘dietary supplements for animals’ or ‘vitamins for animals’, or for goods in Classes 3 and 31, which include cosmetics and food products respectively. In that regard, as the intervener rightly submits, it follows from the nature of those goods, namely their characteristics and their usual use, that they are also intended for the general public for their pets.
39      In any event, it should be noted that the applicant does not call into question the Board of Appeal’s finding, correctly established, that the level of attention of the public varies from average to high.
40      The applicant further submits that the earlier mark is used only in Germany and, therefore, that the marks at issue are not used either on the same EU markets or in the same channels of trade.
41      Where, as in the present case, one of the earlier marks on which the opposition is founded is an EU trade mark, it is not a requirement of Article 8(1)(b) of Regulation 2017/1001 that, for the mark applied for to be refused registration, the likelihood of confusion must exist in all the Member States. The unitary character of the EU trade mark means that an earlier EU trade mark can be relied on in opposition proceedings against any application for registration of an EU trade mark which would adversely affect the protection of the first mark, even if only in relation to the perception of consumers in part of the European Union (see, to that effect, judgment of 16 January 2018, Sun Media v EUIPO –
Meta4 Spain (METAPORN), T‑273/16, EU:T:2018:2, paragraph 86 (not published)). Furthermore, in so far as, for the purposes of assessing whether there is a likelihood of confusion, only the description of the goods in respect of which registration of the mark was sought is relevant; the intended or actual use of that mark cannot be taken into account, since the registration does not contain a restriction to that effect (see, to that effect, judgments of 27 January 2021, Turk Hava Yollari v EUIPO – Sky (skylife), T‑382/19, not published, EU:T:2021:45, paragraph 36, and of 4 May 2022, Fidelity National Information Services v EUIPO – IFIS (FIS), T‑237/21, not published, EU:T:2022:267, paragraph 29). Consequently, the fact, even if established, that the earlier mark is used only in Germany constitutes merely a manner of use of that trade mark, which the applicant cannot validly rely on.
42      Nor has the applicant put forward any argument capable of substantiating its claims relating to the differences in trade channels resulting from the alleged difference in markets, whereas the intervener submits in that regard that the goods marketed under the earlier mark may be acquired outside Germany via its English website specifically intended for the international public.
43      Therefore, contrary to what the applicant claims, the Board of Appeal did not make an error of assessment in finding that the goods covered by the earlier mark were intended for the general public and that the likelihood of confusion had to be assessed throughout the territory of the European Union.
The comparison of the goods
44      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, distribution channels and points of sale, and whether they are in competition with each other or are complementary, acknowledging that they are autonomous criteria capable of being the sole basis for the existence of such a similarity (see judgment of 13 November 2024, SC Certinvest v EUIPO –
Kiddinx Studios (Tina), T‑444/23, not published, EU:T:2024:826, paragraph 24 and the case-law cited).
45      Goods and services may not be regarded as being similar to each other on the ground that they appear in the same class under the Nice Classification, and may not be regarded as being dissimilar from each other on the ground that they appear in different classes under that classification (see judgment of 29 January 2025, Desimo v EUIPO –
Dulces y conservas Helios (ELIOS), T‑607/23, not published, EU:T:2025:112, paragraph 69 and the case-law cited). The goods can be considered as identical when the goods designated by the earlier mark are included in a more general category, designated by the trade mark application, or when the goods designated by the trade mark application are included in a more general category designated by the earlier mark (see judgment of 7 September 2006, Meric v OHIM –
Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, EU:T:2006:247, paragraph 29 and the case-law cited).
46      The applicant submits that the Board of Appeal made an error in the assessment of the similarity of the goods or services at issue. It claims, in the first place, that the Board of Appeal assessed the similarity of the goods and services at issue solely on the basis of their belonging to the same class of the Nice Classification, in breach of Article 33(7) of Regulation 2017/1001, without carrying out a proper analysis of the relevant factors, such as the nature, intended purpose, use and distribution channels of the goods and services concerned. In the second place, the applicant submits that its goods are intended exclusively for animals, whereas the goods covered by the earlier mark, in particular those in Classes 3 and 5, are aimed at human consumers, in particular veterinary surgeons. In the third place, the applicant submits that EUIPO made an error of assessment in finding that there was a similarity between the goods and services at issue in Classes 10 and 44, whereas the earlier mark is not registered for those classes and that no analysis of the relevant factors has been carried out in that regard.
47      EUIPO and the intervener dispute the applicant’s arguments.
48      In the first place, contrary to the applicant’s claims, it should be noted that the Board of Appeal did not rely on the fact that the goods and services at issue belonged to the same class of the Nice Classification in order to find that they were identical or similar.
49      On the contrary, in paragraphs 28 to 43 of the contested decision, the Board of Appeal carried out an examination of the relevant factors characterising the relationship between the goods and services at issue. In the light of those factors, it also annulled the Opposition Division’s decision in part, finding that some of the goods in Classes 10, 18 and 21 covered by the mark applied for were dissimilar to the goods covered by the earlier mark (paragraphs 35 and 39 of the contested decision).
50      In addition, it must be observed that the goods and services covered by the marks at issue are only partly in the same classes, namely Classes 3 and 31. As regards the goods in Class 3, while confirming the Opposition Division’s finding, the Board of Appeal carried out a detailed analysis of their similarity and correctly concluded that some of the goods covered by the mark applied for were included in the broader category of cosmetics covered by the earlier mark, which also includes cosmetics for grooming. It also found that the ‘dental care preparations for animals’ covered by the mark applied for were included in the broader category of ‘dentifrices’ covered by the earlier mark, notwithstanding the fact that they are intended exclusively for animals (see paragraphs 28 to 31 of the contested decision). Similarly, as regards the goods in Class 31, in paragraph 40 of the contested decision, the Board of Appeal found that, in so far as the foodstuffs for animals covered by the earlier mark constituted a broad category, foodstuffs for farm animals, pet food and bird food had to be regarded as being included in that broader category.
51      In the second place, as regards the applicant’s argument that the goods covered by the mark applied for are intended exclusively for animals, whereas the goods covered by the earlier mark are aimed at human consumers, it is apparent from the case-law that, for the purposes of assessing whether there is a likelihood of confusion, only the description of the goods in respect of which registration of the mark was sought is relevant; the intended or actual use of that mark cannot be taken into account, since the registration does not contain a restriction to that effect (see, to that effect, judgments of 27 January 2021, skylife, T‑382/19, not published, EU:T:2021:45, paragraph 36, and of 4 May 2022, FIS, T‑237/21, not published, EU:T:2022:267, paragraph 29). As EUIPO observed, it should be noted that, although the wording of some of the goods and services at issue (see paragraphs 3 and 5 above) is sufficiently explicit to conclude that the product is intended only for animals, the other descriptions, such as ‘soap’, ‘perfumery’, ‘ethereal oils’, ‘cosmetics’, ‘hair lotions’, ‘dentifrices’, are worded in general terms and do not make it possible to draw a clear and definitive distinction based on their potential purpose, whether human or animal. Consequently, no difference in that respect between the goods and services at issue can be accepted for the purposes of assessing the likelihood of confusion. Moreover, as EUIPO correctly submits, any product or service intended for animals is necessarily aimed at a human being, such as the owner of the animal, the breeder or the veterinarian. The decision to purchase, the evaluation of a product or service and their use always involve human intervention, so that the fact that a product or service is intended for animals does not, in itself, distinguish it from goods or services intended for humans for the purposes of assessing the likelihood of confusion.
52      In the third place, the case-law and administrative examples relied on by the applicant in support of its claims are also not capable of substantiating its position. As regards the judgment of 19 May 2021, Yongkang Kugooo Technology v EUIPO –
Ford Motor Company (kugoo) (T‑324/20, not published, EU:T:2021:280, paragraphs 25, 30 and 39), it should be noted that, contrary to what the applicant claims, the General Court did not consider that ‘mobility scooters’ were different in nature from ‘motor vehicles’. As regards the decision of the Fifth Board of Appeal of EUIPO of 4 March 2022, delivered in Case R 1280/2021-5, relied on by the applicant, the latter merely alleges a failure to have regard to a previous decision-making practice. It is apparent from settled case-law that the legality of decisions of the Boards of Appeal must be assessed solely on the basis of Regulation 2017/1001, as interpreted by the Courts of the European Union, and not on the basis of a previous decision-making practice (judgment of 15 September 2005, BioID v OHIM, C‑37/03 P, EU:C:2005:547, paragraph 47, and order of 11 February 2021, Klose v EUIPO, C‑600/20 P, not published, EU:C:2021:110, paragraph 21). As to the remainder, although EUIPO found that there was no similarity between ‘clothing for pets’ and ‘clothing for human beings’ (paragraph 7, seventh indent), it should be noted that that assessment was based on objective differences relating to the nature and purpose of those goods, excluding any overlap between them.
53      In the fourth place, as regards the applicant’s argument that the Board of Appeal erred in finding that there was a similarity between the goods and services at issue, whereas the goods and services covered by the mark applied for in Classes 10 and 44 are not covered by the earlier mark, since that mark is registered only for goods in Classes 3, 5 and 31, it must be borne in mind, in accordance with the case-law cited in paragraph 45 above, that the mere fact that goods belong to different classes of the Nice Classification does not preclude the similarity of the goods, since they may be regarded as such in the light of the criteria established by the case-law, referred to in paragraph 44 above.
54      In that regard, as regards, first of all, the goods in Class 10 covered by the mark applied for, it is apparent from paragraphs 34 and 35 of the contested decision that the Board of Appeal carried out a full examination of the relevant factors. The Board of Appeal found, first, that ‘pliers for veterinary use; pumps for veterinary use; straws for veterinary use; dental pliers for veterinary purposes; detecting instruments for veterinary use; bandages [supportive] for veterinary use; elastrators for veterinary purposes; ultrasonic cleaning instruments for veterinary use; umbilical cord
clamps for veterinary purposes; blood collection bags for veterinary purposes; Elizabethan collars for veterinary use’ covered by the mark applied for and ‘pharmaceutical preparations for animals’ covered by the earlier mark, in Class 5, had at least a low degree of similarity. Although the nature of those goods is different, their intended purpose was similar. Next, there was a complementary link between those goods in that one is indispensable or important for the use of the other, so that consumers may think that the same undertaking is responsible for manufacturing those goods. In addition, they share the same distribution channels and may be marketed by the same undertakings.
55      Second, the Board of Appeal correctly found that no relevant point in common could be established between ‘ultrasonic cleaning instruments for veterinary use; umbilical cord clamps for veterinary purposes [and] Elizabethan collars for veterinary use’ covered by the mark applied for and the goods covered by the earlier mark and, on that ground, annulled the Opposition Division’s decision in part. It found that the nature and intended purpose of those goods were clearly different, and that there was no complementarity between them, in the sense that neither of them was indispensable or important for the use of the other, and that, although those goods concern the medical field, just like certain goods in Class 5 covered by the earlier mark, that factor was not sufficient, in itself, to establish any degree of similarity.
56      Next, as regards the services in Class 44 covered by the mark applied for, in paragraph 41 of the contested decision, the Board of Appeal correctly found that it was necessary to uphold the Opposition Division’s assessment that ‘animal clipping; grooming salon services for pet animals; hygienic and beauty care for animals’ were similar to the ‘cosmetics’ covered by the earlier mark in Class 3 on the grounds that they are complementary and that they coincide in their intended purpose, distribution channels and relevant public. Then, in paragraphs 42 and 43 of the contested decision, the Board of Appeal also found that the other services in Class 44 covered by the mark applied for were complementary to ‘veterinary preparations’ in Class 5 covered by the earlier mark and coincided with them in terms of their intended purpose, their distribution channels and their relevant public. However, it stated that ‘agricultural services’ had only a low degree of similarity with ‘fungicides’ covered by the earlier mark.
57      It follows that, contrary to the applicant’s claims, the Board of Appeal’s finding concerning the similarity of the goods and services at issue in different classes was based on the examination of the relevant factors referred to in paragraph 44 above.
The comparison of the signs
58      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
59      It should be borne in mind that in determining the distinctive character of a mark and, accordingly, in assessing whether it is highly distinctive, it is necessary to make a global assessment of the greater or lesser capacity of the mark to identify the goods or services for which it has been registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings (see, by analogy, judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 22).
60      That distinctive character must be assessed, first, by reference to the goods or services in respect of which registration has been sought and, second, by reference to the relevant public’s perception, which consists of average consumers of the goods or services in question, who are reasonably well informed and reasonably observant and circumspect (see judgment of 29 April 2004, Henkel v OHIM, C‑456/01 P and C‑457/01 P, EU:C:2004:258, paragraph 35 and the case-law cited).
61      Furthermore, where marks consist of both word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more readily refer to the goods and services by quoting the name of the mark than by describing the figurative element. That applies in particular to signs whose word elements are easily recognisable and identifiable. Those word elements are the most distinctive parts of the mark, whereas the relevant public will attach little significance to the figurative elements (see, to that effect, judgment of 1 February 2023, NFL Properties Europe v EUIPO –
Groupe Duval (DUUUVAL), T‑671/21, not published, EU:T:2023:33, paragraph 42).
62      In paragraphs 44 to 58 of the contested decision, the Board of Appeal compared the marks at issue, finding that they were visually similar to a high degree and that they were phonetically and conceptually identical. Furthermore, it found that the word element ‘alpha’ had a normal degree of distinctiveness, at least for part of the relevant public. The Board of Appeal also found that, even though the marks at issue differed in the ‘additional graphic representation’, that representation was of a secondary nature due to its primarily decorative purpose.
63      The applicant claims that the Board of Appeal made an error of assessment in the comparison of the marks at issue. It submits in that regard, first, that the word element ‘alfavet’ has a weak distinctive character, in so far as it consists of the elements ‘alfa’ and ‘vet’, which are descriptive or commonly used and, second, that the Board of Appeal did not properly assess the visual differences between the marks at issue, which are substantial and concern, inter alia, shape, colour, typography and graphic elements.
64      EUIPO and the intervener dispute the applicant’s arguments.
65      As regards the argument that the word element ‘alfavet’ has a low degree of distinctiveness rather than a normal one, as the Board of Appeal found, it should be noted that, in paragraphs 51 to 53 of the contested decision, the Board of Appeal explained, first, that that word element, taken as a whole, was an invented term, although it could be broken down into the elements ‘alfa’, referring to the first letter of the Greek alphabet, and ‘vet’, perceived as the abbreviation of ‘veterinarian’, which could be associated with animal health, care and services for animals. Second, as regards the first of those elements, the Board of Appeal stated that it could not be perceived as referring to the beginning or the first in a series or, therefore, as having a laudatory connotation, since such an interpretation presupposes that the relevant public engages in a multiple-step mental process, which is not the case, and therefore that the element ‘alpha’ has a normal distinctive character, at least for part of the relevant public.
66      In that regard, it should be noted that, even though the elements ‘alfa’ and ‘vet’ each have a specific meaning, it must be stated that the Board of Appeal found that the element ‘alfavet’, as a combination of those words and whatever meaning could be attributed to each of them taken in isolation, constitutes an invented term, devoid of any concrete meaning and likely to be perceived by the relevant public as a name. The applicant has not put forward any argument capable of calling that finding into question.
67      As regards the applicant’s claim that the Board of Appeal did not properly assess the visual differences between the marks at issue, which are substantial and concern, inter alia, shape, colour, typography and graphic elements, it must be pointed out that, in paragraphs 48 to 50 of the contested decision, after presenting the marks at issue, the Board of Appeal found, relying on the case-law cited in paragraph 61 above, that, even though the figurative elements in the shape of a triangle or square are visually present in the marks at issue, the relevant public would not attribute any major significance to them. That finding was reiterated in paragraph 63 of the contested decision, in which the Board of Appeal stated that, in the assessment of the likelihood of confusion, it was necessary to take into account the decisive factor, namely that the marks at issue reproduce exactly the same word element, whereas they differ solely in the basic, non-distinctive typeface in which that word element is represented, and in their figurative elements of a purely decorative nature.
68      It follows that the Board of Appeal correctly assessed the visual differences between the marks at issue. The fact that the term ‘alfavet’ of the mark applied for is written in upper-case letters and in a standard black typeface and contains two red triangles placed above and below the word element respectively, whereas the word ‘alfavet’ of the earlier mark is written in slightly cursive lower-case letters in a standard grey and bold typeface and is preceded by a blue square, is not sufficient to conclude that the visual differences between those marks are substantial. On the contrary, as is apparent from the case-law cited in paragraph 61 above, in so far as those differences are minor, the elements referred to above are merely perceived as decorative and are weakly distinctive and therefore of secondary importance in the perception of the marks at issue, especially since they are combined with a word element ‘alfavet’ which is relatively more distinctive.
69      In the light of the foregoing, it must be held that the Board of Appeal did not err in its assessment of the comparison of the marks at issue.
The likelihood of confusion
70      According to settled case-law, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be assessed globally, taking into account all the relevant factors of the particular case (see judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited).
71      A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, VENADO with frame and others, T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
72      In the present case, in paragraphs 62 to 65 of the contested decision, the Board of Appeal found, first, that the goods and services covered by the marks at issue were identical or similar to varying or different degrees, second, that those marks had a high degree of visual similarity, whereas they are phonetically and conceptually identical and, third, that the distinctive character of the earlier mark was normal. The Board of Appeal also found that the marks at issue reproduce the same word element and differ only in the typeface, devoid of distinctive character, used for the representation of that element, and in figurative elements of a purely decorative nature. It found that those visual differences, limited in scope, were not sufficient to rule out the existence of a likelihood of confusion, including a likelihood of association of the commercial origin of those marks, even as regards the goods and services considered to be similar, even to a low degree, notwithstanding the increased level of attention of the relevant public for some of those goods and services. The Board of Appeal concluded that it was entirely conceivable that the consumers concerned, even if they noticed the slight differences between the marks at issue, would perceive the mark applied for ALFAVET as indicating the same commercial origin or a related commercial origin as regards identical or similar goods and services, albeit to a low degree.
73      The applicant submits that the Board of Appeal erred in its assessment of the likelihood of confusion, in so far as it attached excessive importance to the phonetic similarity, without having duly taken into consideration the relevant visual differences between the marks at issue, which are predominant given the way in which the goods and services at issue are marketed and sold.
74      EUIPO and the intervener dispute the applicant’s arguments.
75      In that regard, it should be noted, as stated in paragraph 72 above, that the Board of Appeal did not find that the phonetic comparison of the marks at issue was more significant than the visual or conceptual comparisons. On the contrary, although the Board of Appeal found that the marks at issue were phonetically identical (paragraphs 56 and 62 of the contested decision), it did not draw any definitive conclusion as to their similarity. As is apparent from paragraphs 67 and 68 above, it also based that finding, without prejudging the respective significance of those elements, on the conceptual and visual similarity, taking the view, in paragraph 62 of the contested decision, that the signs were visually similar to a high degree, whereas they were phonetically and conceptually identical.
76      Nor did the Board of Appeal find that consumers would order or purchase the goods at issue orally. Moreover, the applicant’s argument relating to the conditions in which the goods and services at issue are marketed and their bearing on the determination of the visual aspect of the marks at issue must be rejected. As stated in paragraph 51 above, the intended or actual use of a trade mark cannot be taken into account in order to assess whether there is a likelihood of confusion except where the registration contains a restriction to that effect. In the present case, the description of the goods and services covered by the marks at issue does not contain any restriction as to the places of sale. Furthermore, it is apparent from paragraph 64 of the contested decision that the Board of Appeal correctly found that the slight visual differences between the marks at issue were not sufficient to rule out a likelihood of confusion, including a likelihood of association of the commercial origin of those marks, even in respect of the goods and services which are similar, at the very least, to a low degree, despite the heightened level of attention of the relevant public when purchasing some of those goods and services.
77      In the light of the foregoing, it must be held that the Board of Appeal did not err in its assessment of the likelihood of confusion.
78      Accordingly, the first plea in law must be rejected.
79      In the light of all of the foregoing, the action must be dismissed in its entirety.
Costs
80      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.
81      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Groupvet EE to bear its own costs and to pay those incurred by alfavet Tierarzneimittel GmbH;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Półtorak
Martín y Pérez de Nanclares
Hesse
Delivered in open court in Luxembourg on 29 April 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.