JUDGMENT OF THE GENERAL COURT (Second Chamber)
2 March 2022 (*)
(EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark VITADHA – Earlier Spanish word mark VITANADH – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EC) No 207/2009 (now Article 8(1)(b) of Regulation (EU) 2017/1001))
In Case T‑149/21,
UGA Nutraceuticals Srl, established in Gubbio (Italy), represented by M. Riva, J. Graffer and A. Ottolini, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by A. Folliard-Monguiral, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Vitae Health Innovation, SL, established in Montmeló (Spain), represented by E. Torner Lasalle, lawyer,
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 15 January 2021 (Case R 2719/2019-4), relating to opposition proceedings between Vitae Health Innovation and UGA Nutraceuticals,
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović, President, P. Škvařilová-Pelzl (Rapporteur) and I. Nõmm, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 18 March 2021,
having regard to the response of EUIPO lodged at the Court Registry on 23 June 2021,
having regard to the response of the intervener lodged at the Court Registry on 5 July 2021,
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
Background to the dispute
1        On 8 March 2017, the applicant, UGA Nutraceuticals Srl, obtained international registration designating the European Union for the word mark VITADHA from the International Bureau of the World Intellectual Property Organization (WIPO).
2        On 29 June 2017, the European Union Intellectual Property Office (EUIPO) received notification of the international registration designating the European Union in respect of the mark applied for, pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1), as amended (replaced by 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)).
3        The goods in respect of which protection was sought, following a restriction applied in the course of the proceedings before EUIPO, fall within Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, inter alia, to the following description: ‘Pharmaceuticals, medical and veterinary preparations; sanitary preparations for medical purposes; dietetic food and substances adapted for medical or veterinary use, food for babies; dietary supplements for humans and animals; plasters, materials for dressings; disinfectants; preparations for destroying vermin; fungicides; nutritional supplements; albumin dietary supplements; alginate dietary supplements; casein dietary supplements; dietary supplements for animals; enzyme dietary supplements; flaxseed dietary supplements; flaxseed oil dietary supplements; glucose dietary supplements; lecithin dietary supplements; linseed dietary supplements; linseed oil dietary supplements; mineral food supplements; pollen dietary supplements; propolis dietary supplements; protein dietary supplements; protein supplements for animals; royal jelly dietary supplements; wheat germ dietary supplements; yeast dietary supplements; dietary fibre; food for babies; dietetic foods adapted for medical purposes; dietetic beverages adapted for medical purposes; starch for dietetic or pharmaceutical purposes; by-products of the processing of cereals for dietetic or medical purposes; dietetic substances adapted for medical use; infant formula; powdered milk for babies; candy, medicated; dressings, medical; amino acids for medical purposes; chewing gum for medical purposes; drugs for medical purposes; gum for medical purposes; pearl powder for medical purposes; pomades for medical purposes; malted milk beverages for medical purposes; pharmaceutical preparations; veterinary preparations; vitamin preparations; preparations of trace elements for human and animal use; all the aforementioned goods being other than dental products, including pharmaceuticals for dental purposes, medical preparations for dental purposes, material for stopping teeth and dental wax’.
4        On 30 October 2017, the intervener, Vitae Health Innovation, SL, formerly called Vitae Natural Nutrition, SL, filed a notice of opposition, pursuant to Article 46 of Regulation 2017/1001, to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5        The opposition was based, inter alia, on the Spanish word mark VITANADH, filed on 24 June 2004 and registered on 15 November 2004 under the reference M2603444, covering goods and services in Classes 5 and 39 and corresponding, for each of those classes, to the following description:
–        Class 5: ‘Pharmaceutical preparations, dietetic substances for medical use’;
–        Class 39: ‘Distribution of natural medicinal products’.
6        The grounds relied on in support of the opposition were those set out in Article 8(1)(a) and (b) of Regulation 2017/1001.
7        On 30 September 2019, the Opposition Division upheld the opposition in part, on the ground that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, in respect of the goods referred to in paragraph 3 above.
8        On 29 November 2019, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division in so far as the opposition had been upheld.
9        By decision of 15 January 2021 (‘the contested decision’), the Fourth Board of Appeal of EUIPO upheld the decision of the Opposition Division and, consequently, dismissed the appeal. First, it found that Spain was the relevant territory for the purpose of assessing the likelihood of confusion. Second, the Board of Appeal found that the relevant public consisted of the public at large and professionals, in particular in the medical field, who had a level of attention that was high or higher than average. Third, it found that the goods in Class 5 designated by the mark applied for, referred to in paragraph 3 above, were identical or similar in varying degrees to the goods in Class 5 covered by the earlier mark. Fourth, the Board of Appeal found that at least the public at large would not break the signs at issue down into several elements, namely, respectively, ‘vita’ and ‘dha’ and ‘vita’ and ‘nadh’. Fifth, it found that the signs had a degree of visual and phonetic similarity that was above average whereas conceptually they had no meaning and did not convey any concept for Spanish-speaking consumers. Sixth, the Board of Appeal found that the earlier mark had a normal degree of inherent distinctiveness. Having regard to the factors referred to above, it found that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001. In addition, the Board of Appeal rejected the applicant’s line of argument based on peaceful coexistence of the marks at issue as being unfounded.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision, while declaring the signs as being different and granting the application for registration;
–        order EUIPO and the intervener to pay the costs.
11      EUIPO and the intervener contend that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
The applicable law ratione temporis
12      In accordance with Article 3(4) of the Protocol relating to the Madrid Agreement concerning the international registration of marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22), as amended on 12 November 2007, the date of obtaining an international registration designating the European Union corresponds to the date of the filing of the application, to the office dealing with the request, for registration of the mark for which protection is sought throughout the territory of the parties to the Madrid Agreement.
13      In view of the date on which the application for international registration designating the European Union was filed, namely 8 March 2017, which is therefore decisive for the purpose of identifying the applicable substantive law (see, to that effect, judgments of 30 June 2021, Zoom v EUIPO – Facetec (ZOOM), T‑204/20, not published, EU:T:2021:391, paragraph 17 and the case-law cited, and of 8 September 2021, SBG v EUIPO – VF International (GEØGRAPHICAL NØRWAY), T‑458/20, not published, EU:T:2021:543, paragraphs 1 and 13 and the case-law cited), the facts of the case are governed by the substantive provisions of Regulation No 207/2009. Furthermore, in so far as, according to settled case-law, procedural rules are generally held to apply on the date on which they enter into force (see judgment of 11 December 2012, Commission v Spain, C‑610/10, EU:C:2012:781, paragraph 45 and the case-law cited), the dispute is governed by the procedural provisions of Regulation 2017/1001.
14      Consequently, as regards the substantive rules, the references made to Article 8(1)(b) of Regulation 2017/1001 by the Board of Appeal in the contested decision and by the parties in their written pleadings must be understood as referring to Article 8(1)(b) of Regulation No 207/2009, the wording of which is identical.
Substance
15      The applicant relies, in essence, on a single plea in law alleging infringement of Article 8(1)(b) of Regulation No 207/2009, which is divided into three limbs. The first limb alleges an error of assessment in the comparison of the goods at issue resulting from the fact that some of those goods were wrongly considered to be similar. The second limb alleges an error of assessment in the comparison of the signs at issue, which were wrongly found to be similar. The third limb alleges an error of assessment in the analysis of the likelihood of confusion owing to the incorrect finding of there being such a likelihood.
16      EUIPO and the intervener contend that the single plea in law, including all three limbs, should be rejected as unfounded and that the action should consequently be dismissed.
17      As a preliminary point, it should be noted that, under Article 151(1) of Regulation No 207/2009, an international registration designating the European Union is, from the date of its registration pursuant to Article 3(4) of the Protocol relating to the Madrid Agreement, to have the same effect as an application for an EU trade mark. Furthermore, Article 156(1) of that regulation provides that an international registration designating the European Union is to be subject to opposition in the same way as published EU trade mark applications.
18      It is also important to note that under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to be registered if, because of its identity with, or similarity to, an earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
19      The fact that the party which claims that a decision of a Board of Appeal should be annulled does not dispute certain factors that are essential to the analysis of the likelihood of confusion does not mean that the Court may not or must not review the merits of those factors, since those factors constitute an essential stage of the reasoning which the Court is required to engage in in order to carry out the review of the lawfulness of that decision. Therefore, where one of the parties claiming that the Board of Appeal’s decision should be annulled has called into question the latter’s assessment relating to the likelihood of confusion, by virtue of the principle of the interdependence of the factors taken into account, in particular the similarity of the trade marks and that of the goods or services covered, the Court is competent to examine the Board of Appeal’s assessment of those factors (see, to that effect, judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 47). Where it is called upon to assess the legality of a decision of a Board of Appeal of EUIPO, the Court cannot be bound by an incorrect assessment of the facts by that Board of Appeal since that assessment is part of the findings whose legality is being disputed before it (judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 48).
The relevant territory
20      It is apparent from paragraph 22 of the contested decision that the Board of Appeal considered that Spain was the relevant territory for the purpose of assessing the likelihood of confusion.
21      The parties do not dispute that finding.
22      In accordance with Article 8(1)(b) of Regulation No 207/2009, it is necessary to assess the existence of a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected.
23      Since the earlier mark is a Spanish trade mark protected on the territory of Spain, the existence of a likelihood of confusion must be assessed in the present case with respect to that territory.
24      Consequently, the Board of Appeal’s assessment that the relevant territory is that of Spain must be upheld.
The relevant public and its level of attention
25      In paragraph 21 of the contested decision, the Board of Appeal observed that the goods at issue, included in Class 5, are aimed at the public at large and a professional public, particularly in the medical field. According to the Board of Appeal, on account of the health-related nature of the goods concerned, the relevant public is likely to display a high or higher-than-average level of attention.
26      It should be noted that the applicant does not dispute those assessments by the Board of Appeal. Nevertheless, it submits that, as far as pharmaceutical preparations are concerned, the level of attention of the relevant public is high, whether that relates to the general public or health professionals. Consequently, the applicant, in its application, has carried out an examination of the likelihood of confusion by reference to the general public and to a professional public where both are characterised by a high degree of attention.
27      The applicant’s approach should not be considered as disputing the assessments of the Board of Appeal with regard to the relevant public and its level of attention since both a ‘high level of attention’ and a ‘higher-than-average level of attention’ indicate a heightened level of attentiveness on the part of the relevant public (see, to that effect, judgment of 13 June 2019, Pet King Brands v EUIPO – Virbac (SUIMOX), T‑366/18, not published, EU:T:2019:410, paragraph 115).
28      That said, as was stated by the Board of Appeal, it is apparent from the case-law that, in relation to health-related products, the relevant public is likely to display a high or higher-than-average degree of attention, which means, in essence, that consumers are less likely to confuse different versions of those products (see judgments of 10 December 2014, Novartis v OHIM – Dr Organic (BIOCERT), T‑605/11, not published, EU:T:2014:1050, paragraphs 20 and 21 and the case-law cited; of 10 February 2015, Boehringer Ingelheim International v OHIM – Lehning entreprise (ANGIPAX), T‑368/13, not published, EU:T:2015:81, paragraph 45 and the case-law cited; and of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 26 and the case-law cited).
29      Accordingly, it is necessary to uphold the Board of Appeal’s assessment that the relevant public consists of the public at large and professionals whose level of attention is high or higher than average.
30      Nevertheless, it is apparent from paragraph 32 of the contested decision that the Board of Appeal, in its analysis of the meaning of the signs at issue, took into account only the public at large, without referring to professionals. Such a restriction follows implicitly from the fact that it found a likelihood of confusion related to the understanding of those signs solely on the part of the public at large.
31      In that regard, it must be noted that in order for registration of a trade mark to be refused, it suffices that there is a likelihood of confusion for a non-negligible part of the relevant public (see judgment of 20 November 2017, Stada Arzneimittel v EUIPO – Urgo recherche innovation et développement (Immunostad), T‑403/16, not published, EU:T:2017:824, paragraph 50 and the case-law cited). Consequently, the Board of Appeal did not commit an error in implicitly restricting its analysis in respect of a likelihood of confusion solely to the public at large.
32      Having regard to the restriction thus effected by the Board of Appeal in the contested decision, the Court will examine the present action only with respect to one part of the relevant public, namely the general public with a high or higher-than-average level of attention.
The first limb, alleging an error of assessment in the comparison of the goods at issue
33      In the first limb, the applicant complains that the Board of Appeal erred in finding that some of the goods were similar, referring in particular to several previous EUIPO decisions. First, it submits that the Board of Appeal contradicted itself by finding that the ‘veterinary preparations’, the ‘dietetic food and substances adapted for veterinary use’, the ‘dietary supplements for animals’, the ‘protein supplements for animals’ and the ‘preparations of trace elements for animal use’ in Class 5 covered by the mark applied for were highly similar to the ‘pharmaceutical preparations’ in the same class covered by the earlier mark. According to the applicant, the goods in question are dissimilar because of differences related to their intended purpose and the relevant consumers. Second, the applicant submits that the Board of Appeal erred in finding that the ‘food for babies’ and the ‘powdered milk for babies’ in Class 5 covered by the mark applied for were similar to the ‘dietetic substances for medical use’ in the same class covered by the earlier mark. According to the applicant, those goods are dissimilar because of differences related to their nature, intended purpose and distribution channels. Third, the applicant complains that the Board of Appeal erred in finding that the ‘preparations for destroying vermin’ and the ‘fungicides’ in Class 5 covered by the mark applied for were similar to a low degree to the ‘pharmaceutical preparations’ in the same class covered by the earlier mark, whereas those goods are dissimilar.
34      EUIPO and the intervener contest the applicant’s arguments.
35      In paragraph 24 of the contested decision, the Board of Appeal endorsed the Opposition Division’s findings concerning the identity or similarity to varying degrees of the goods referred to in paragraphs 3 and 5 above.
36      It should first be noted that the applicant disputes that finding by the Board of Appeal solely in relation to the goods referred to in paragraph 33 above. As regards the other goods, the uncontested assessment made by the Board of Appeal must be upheld, for the reasons that the Opposition Division correctly gave in its decision and which were adopted by the Board of Appeal. Consequently, in examining the present action, the analysis of the Court will be restricted to a comparison of the goods referred to in paragraph 33 above.
37      According to settled case-law, for the purpose of assessing the similarity of the goods or services covered by the marks 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 or services 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).
38      Where the goods or services covered by the earlier mark include the goods covered by the trade mark application, those goods or services are considered to be identical (see judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited).
39      As a preliminary point, since the applicant, in support of the first limb of the plea, refers in particular to several previous decisions by EUIPO, it should be borne in mind that the legality of decisions by that latter body must be assessed solely on the basis of the regulation on the EU trade mark, as interpreted by the European Union Courts, and not on the basis of EUIPO’s previous decision-making practice (judgment of 31 January 2019, DeepMind Technologies v EUIPO (STREAMS), T‑97/18, not published, EU:T:2019:43, paragraph 53).
40      In the first place, the applicant disputes the Board of Appeal’s assessment that the ‘veterinary preparations’, the ‘dietetic food and substances adapted for veterinary use’, the ‘dietary supplements for animals’, the ‘protein supplements for animals’ and the ‘preparations of trace elements for animal use’ in Class 5 covered by the mark applied for, on the one hand, are highly similar to the ‘pharmaceutical preparations’ in the same class covered by the earlier mark, on the other. According to the applicant, those goods are dissimilar.
41      In paragraph 26 of the contested decision, the Board of Appeal found that, despite the different spheres of use, in animals on the one hand and in humans on the other, the nature and ingredients of the goods concerned were highly similar, and that their manufacturers or intended purposes, namely to prevent or cure illnesses or to supplement nutrition, were closely related.
42      First, as regards the comparison of the ‘veterinary preparations’ covered by the mark applied for and the ‘pharmaceutical preparations’ covered by the earlier mark, it should be noted, as EUIPO states in its response, that according to the case-law the category of ‘pharmaceutical preparations’ is a broad and generic category which includes both pharmaceutical preparations for human use and those for veterinary use (see judgment of 15 March 2012, Cadila Healthcare v OHIM – Novartis (ZYDUS), T‑288/08, not published, EU:T:2012:124, paragraph 42 and the case-law cited).
43      Furthermore, the applicant’s claim that the category of ‘pharmaceutical preparations’ in Class 5 exclusively covers goods intended for the treatment of human beings is not supported by either the International Classification of Goods and Services for the Purposes of the Registration of Marks established by the Nice Agreement or the case-law. In any event, even if that contention were correct, the fact would nonetheless remain that pharmaceutical preparations and veterinary preparations are highly similar, since they are the same in nature (healthcare products), have the same purpose (the treatment of health problems), are aimed in part at the same consumers (in particular, healthcare professionals, such as pharmacists, and the general public), are manufactured by the same economic operators (pharmaceutical companies) and share in part the same distribution channels (pharmacies and, in certain cases, supermarkets) (judgment of 15 March 2012, ZYDUS, T‑288/08, not published, EU:T:2012:124, paragraph 43).
44      In accordance with the case-law referred to in paragraph 42 above, read in conjunction with the case-law cited in paragraph 38 above, ‘veterinary preparations’ and ‘pharmaceutical preparations’ must be regarded as being identical or, as was found by the Board of Appeal, as being at least highly similar.
45      Secondly, as regards the comparison of the ‘dietetic food and substances adapted for veterinary use’, the ‘dietary supplements for animals’, the ‘protein supplements for animals’ and the ‘preparations of trace elements for animal use’ covered by the mark applied for, on the one hand, and the ‘pharmaceutical preparations’ covered by the earlier mark, on the other, the grounds set out by the Board of Appeal in paragraph 26 of the contested decision (see paragraph 41 above) warrant a finding that those goods are highly similar.
46      The similarity of those goods is also confirmed by the case-law. By analogy with the case-law cited in paragraph 42 above, according to which ‘pharmaceutical preparations’ include ‘veterinary preparations’, it must be held that ‘dietetic substances for medical use’ include ‘dietetic food and substances adapted for veterinary use’, ‘dietary supplements for animals’, ‘protein supplements for animals’ and ‘preparations of trace elements for animal use’. Furthermore, in the same way that the case-law makes it clear that ‘pharmaceutical preparations’ and ‘dietetic substances for medical use’ are similar (judgment of 10 February 2015, ANGIPAX, T‑368/13, not published, EU:T:2015:81, paragraphs 59 and 60), it must be held that ‘pharmaceutical preparations’ and the goods included in ‘dietetic substances for medical use’ are similar. Consequently, a similarity must also be found between the ‘pharmaceutical preparations’ covered by the earlier mark, on the one hand, and the ‘dietetic food and substances adapted for veterinary use’, the ‘dietary supplements for animals’, the ‘protein supplements for animals’ and the ‘preparations of trace elements for animal use’ covered by the mark applied for, on the other.
47      It follows from the foregoing that the applicant’s arguments regarding the dissimilar nature of the goods referred to in paragraph 40 above are unfounded, and that the Board of Appeal did not err in its assessment that the goods at issue were either highly similar or identical.
48      In the second place, the applicant disputes the Board of Appeal’s assessment that ‘food for babies’ and ‘powdered milk for babies’ in Class 5 covered by the mark applied for are similar to the ‘dietetic substances for medical use’ in the same class covered by the earlier mark. The applicant submits that those goods are different.
49      In paragraph 27 of the contested decision, the Board of Appeal found that those goods could have the same nature, the same purpose and could coincide with regard to their producer and distribution channels. According to the Board of Appeal, all food for babies, powdered milk for babies and dietetic substances are special foodstuffs which have the same dietetic purpose. Furthermore, those goods are offered for sale alongside each other in pharmacies or supermarkets.
50      As EUIPO contends in its response, it is apparent from the case-law that in the light of a certain connection between some foods for babies and pharmaceutical products and substances in respect of their intended purpose, their method of use and their distribution channels, there is a low degree of similarity between those goods (see judgment of 13 May 2015, Ferring v OHIM – Kora (Koragel), T‑169/14, not published, EU:T:2015:280, paragraph 58 and the case-law cited). That assessment applies, by analogy, to dietetic substances for medical use.
51      In that regard, the Court has held that food for babies is defined as food which, from a medical point of view, is suitable for consumption by babies who, because of their physiology or for other medical reasons, are not yet capable of consuming all types of normal food. They are therefore goods which are specially composed in order to safeguard the health of infants and young children. Moreover, it cannot be ruled out that some foods for babies might be complementary to medicines which are administered to them, particularly within the context of the treatment of nutritional deficiencies of young children, in the sense that one is indispensable or important for the use of the other. Lastly, the fact that some foods for babies are sold in pharmacies cannot generally be considered to be insignificant. In accordance with the case-law referred to in paragraph 37 above, the distribution channels of the goods concerned may constitute a relevant factor for the purpose of the comparison of those goods.
52      It follows from the foregoing that the ‘food for babies’ and the ‘powdered milk for babies’ covered by the mark applied for and the ‘pharmaceutical preparations’ covered by the earlier mark are similar to a low degree. That means that the ‘food for babies’ and the ‘powdered milk for babies’ covered by the mark applied for and the ‘dietetic substances for medical use’ which are also covered by the earlier mark also display at least a low degree of similarity because ‘pharmaceutical preparations’ and ‘dietetic substances for medical use’ are themselves similar, as stated in paragraph 46 above. Furthermore, as the Board of Appeal pointed out in the contested decision, ‘food for babies’ and ‘powdered milk for babies’ and ‘dietetic substances for medical use’ are special foodstuffs with a dietetic purpose. In addition, the Board of Appeal was fully entitled to take into consideration the fact that all of those goods were offered for sale alongside each other in pharmacies or supermarkets.
53      Consequently, the applicant’s arguments regarding the dissimilar nature of the goods referred to in paragraph 48 above must be rejected.
54      In the third and last place, the applicant disputes the Board of Appeal’s assessment that the ‘preparations for destroying vermin’ and the ‘fungicides’ covered by the mark applied for had a low degree of similarity to the ‘pharmaceutical preparations’ covered by the earlier mark. According to the applicant, those goods are different.
55      In paragraphs 28 and 29 of the contested decision, the Board of Appeal relied on case-law according to which the goods referred to in paragraph 54 above are similar to a low degree.
56      According to that case-law, first, preparations for destroying vermin and fungicides cover a large spectrum of goods which is not restricted to goods intended for the protection of plants (judgment of 13 May 2015, Koragel, T‑169/14, not published, EU:T:2015:280, paragraph 48).
57      Second, according to its ordinary meaning, the English term ‘vermin’ refers in everyday language to animal species whose presence is considered to be a risk or a nuisance to humans, their environment and human activities. That term may therefore refer, inter alia, to animal species representing a potential risk or nuisance to human health and to the health of domestic animals, for example, a parasitic species or a species which may be the source, by its presence or contact, of various animal or human diseases. Consequently, it is possible that some preparations for destroying vermin may be used in order to prevent the risks to human or animal health which the species whose elimination is sought represent. In addition, the use of those preparations may be complementary to that of pharmaceutical or veterinary preparations used to treat ailments caused, directly or indirectly, by the presence of those animal species or contact with them. Moreover, some of those preparations, in particular some insecticides, may be sold in pharmacies (judgment of 13 May 2015, Koragel, T‑169/14, not published, EU:T:2015:280, paragraphs 49 and 50).
58      Thus, in the light of the intended purpose of preparations for destroying vermin, their complementary nature in relation to pharmaceutical or veterinary preparations and their distribution channels, it must be held that there is a low degree of similarity between ‘preparations for destroying vermin’ and ‘pharmaceutical preparations’ (see, to that effect and by analogy, judgment of 13 May 2015, Koragel, T‑169/14, not published, EU:T:2015:280, paragraph 51 and the case-law cited).
59      Third, the ordinary meaning, in everyday language, of the English term ‘fungicide’ is not restricted to phytosanitary chemical products. It appears that that term generally refers to any active ingredient used to kill parasitic fungi, without restriction to a specific sector. Thus, the specialised terms used to refer to treatments of human or animal fungal infections refer to subcategories included in the general notion of ‘fungicide’ rather than to separate categories thereof (judgment of 13 May 2015, Koragel, T‑169/14, not published, EU:T:2015:280, paragraph 52).
60      In addition, it is apparent from the same case-law that fungicides may have a medical or therapeutic purpose (see judgment of 13 May 2015, Koragel, T‑169/14, not published, EU:T:2015:280, paragraph 53 and the case-law cited).
61      Consequently, for reasons that are similar to those set out in paragraphs 56 to 58 above, the Board of Appeal was fully entitled to find that there was a low degree of similarity between the ‘fungicides’ covered by the mark applied for and the ‘pharmaceutical preparations’ covered by the earlier mark.
62      Accordingly, the applicant’s arguments relating to the dissimilar nature of the ‘preparations for destroying vermin’ and the ‘fungicides’ covered by the mark applied for and the ‘pharmaceutical preparations’ covered by the earlier mark must be rejected.
63      The first limb must therefore be rejected as unfounded.
The second limb, alleging an error of assessment in the comparison of the signs at issue
64      The applicant disputes the Board of Appeal’s assessments related to the comparison of the signs at issue. In that regard, it submits, first, that the element ‘vita’, which they have in common, cannot form the basis for any relevant similarity between those signs in the light of the descriptive character of that element. Secondly, the applicant submits that the Board of Appeal erred in finding that those signs were visually and phonetically similar, whereas they should have been found to be dissimilar in both respects. Thirdly, as regards the impact of the elements ‘dha’ in the mark applied for and ‘nadh’ in the earlier mark, for which a conceptual comparison is not possible, the applicant complains that the Board of Appeal disregarded the fact that those elements play a decisive role in the comparison of the signs.
65      EUIPO and the intervener contest the applicant’s arguments.
66      As a preliminary remark, it should be noted that, according to the case-law, the global assessment of the likelihood of confusion must, as 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 marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see 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 46 and the case-law cited).
67      However, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, while perceiving a word sign, he or she will identify the elements which, for him or her, suggest a concrete meaning or resemble words known to him or her. Moreover, the consumer will break the word sign down into elements even if only one of its elements is familiar to him or her (see judgment of 23 May 2019, Dentsply De Trey v EUIPO – IDS (AQUAPRINT), T‑312/18, not published, EU:T:2019:358, paragraph 28 and the case-law cited).
68      Furthermore, for the purpose 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 or services for which the mark 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, 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 or services for which the mark has been registered (see judgment of 3 September 2010, 61 A NOSSA ALEGRIA, T‑472/08, EU:T:2010:347, paragraph 47 and the case-law cited).
69      Where some elements of a trade mark are descriptive of the goods and services in respect of which that mark is protected or the goods and services covered by the application for registration, those elements are recognised as having only a low, or even very low, distinctive character. Most often, it will be possible to recognise those elements as having distinctive character only because of their combination with the other elements of the mark. Owing to their low, or even very low, distinctive character, descriptive elements of a trade mark are not generally regarded by the public as being dominant in the overall impression conveyed by that mark, unless, particularly because of their position or their size, they appear likely to make an impression on consumers and to be remembered by them (see judgment of 3 September 2010, 61 A NOSSA ALEGRIA, T‑472/08, EU:T:2010:347, paragraph 49 and the case-law cited).
70      In the present case, in the first place, as regards the most distinctive and dominant elements of the signs at issue, it should be noted that, in paragraph 32 of the contested decision, the Board of Appeal found in essence that those signs would not be broken down into several elements, namely ‘vita’ and ‘dha’ and ‘vita’ and ‘nadh’ respectively. Consequently, the Board of Appeal did not analyse those signs on the basis of the various elements of which they were composed.
71      The applicant disputes the approach taken by the Board of Appeal and complains, in essence, that it failed to take due account of the fact that the common element ‘vita’ is descriptive in nature and is therefore irrelevant for the comparison of the signs at issue.
72      In that regard, it should be noted, first, that it is apparent from the case-law that the word ‘vita’ will be understood by the Spanish general public as an allusion to ‘vitality’ or a reference to the concept of ‘life’ (see, to that effect, judgment of 14 January 2016, The Cookware Company v OHIM – Fissler (VITA+VERDE), T‑535/14, not published, EU:T:2016:2, paragraphs 49 to 56). In addition, it is clear from the case-law that the word ‘vita’ evokes generally a positive quality attributable to a large range of different goods or services. In fact, it is a word of Latin origin and, as such, familiar to a Spanish consumer, which gives the word containing it a connotation of ‘life’ or ‘vitality’ (see, to that effect, judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT), T‑277/04, EU:T:2006:202, paragraph 54).
73      Secondly, having regard to the fact that the goods covered by the signs at issue are related to health, Spanish consumers are also likely to understand the element ‘vita’ as a reference to the Spanish words ‘vitalidad’ or ‘vitamina’. The specific nature of those goods may make it possible for the Spanish general public to identify, in the signs at issue, a reference to those Spanish words that would evoke a particular quality pertaining to those goods connected with the fact that they would provide vitality or vitamins to those who consume them.
74      Consequently, the Spanish general public, or at least a non-negligible part of that public, will understand the element ‘vita’ that the signs at issue have in common in either one of the ways referred to in paragraphs 72 and 73 above. Having regard to the case-law cited in paragraph 67 above, it must be held that when faced with those signs that public will identify the element ‘vita’ and will divide the trade marks VITADHA and VITANADH into two elements, namely, first, ‘vita’ and ‘dha’ and, second, ‘vita’ and ‘nadh’.
75      The Board of Appeal therefore erred in comparing the signs at issue without dividing up the constituent elements of those signs in the way indicated in paragraph 74 above.
76      Since the goods and services covered by those signs are related to health, the element ‘vita’ may be regarded as alluding to certain specific qualities that they have and thus as having, at most, weak inherent distinctiveness. By contrast, since the elements ‘dha’ and ‘nadh’ in the signs at issue have no meaning for the Spanish general public, they both have average inherent distinctiveness.
77      Nevertheless, that does not mean that the applicant’s arguments related to not taking the common element ‘vita’ into consideration in the comparison of the signs are well founded.
78      In that regard, first, it must be borne in mind that the descriptive and, a fortiori, merely allusive elements of a mark are not necessarily negligible in the overall impression conveyed by that mark. In that regard, it is necessary, in particular, to examine whether other elements of the mark are likely to dominate, by themselves, the relevant public’s recollection of that mark (judgment of 3 September 2010, 61 A NOSSA ALEGRIA, T‑472/08, EU:T:2010:347, paragraph 49).
79      That is not the case here. As regards possible dominant elements, it should be observed that, according to the case-law, word marks consist entirely of letters, words or associations of words which are written in printed characters in a normal font without any specific graphic element (see, to that effect, judgment of 7 March 2019, Laverana v EUIPO – Agroecopark (VERA GREEN), T‑106/18, not published, EU:T:2019:143, paragraph 56 and the case-law cited). Such marks therefore do not have a dominant element since, by their nature, none of the constituent elements has a particular graphic or stylistic aspect which is capable of giving it such a character (see, to that effect, judgment of 7 March 2019, VERA GREEN, T‑106/18, not published, EU:T:2019:143, paragraph 56).
80      Second, it is apparent from the case-law that consumers will generally attach greater importance to the beginning of a mark than to its end, the initial part of a mark normally having a greater impact, both visually and phonetically, than the final part (see, to that effect, judgments of 7 September 2006, Meric v OHIM – Arbora & Ausonia (PAM-PIM’S BABY-PROP), T‑133/05, EU:T:2006:247, paragraph 51, and of 27 February 2019, Aytekin v EUIPO – Dienne Salotti (Dienne), T‑107/18, not published, EU:T:2019:114, paragraph 47 and the case-law cited). However, that consideration cannot apply in all cases (see judgments of 9 April 2014, Farmaceutisk Laboratorium Ferring v OHIM – Tillotts Pharma (OCTASA), T‑501/12, not published, EU:T:2014:194, paragraph 58 and the case-law cited, and of 12 July 2019, MAN Truck & Bus v EUIPO – Halla Holdings (MANDO), T‑698/17, not published, EU:T:2019:524, paragraph 62 and the case-law cited).
81      In the present case, first, it is necessary in any event to take into account the fact that the common element ‘vita’ appears in the initial part of the signs at issue. Second, it is identical in length to the element ‘nadh’ in the earlier mark and slightly longer than the element ‘dha’ in the mark applied for. Those circumstances do not allow the element ‘vita’ to be regarded as negligible in the overall impression conveyed by the signs at issue.
82      Consequently, it must be held that, even though the element ‘vita’ is allusive, it must nevertheless be taken into account in the assessment of the visual, phonetic and conceptual similarity of the signs at issue.
83      In the second place, as regards the visual comparison of the signs at issue, the Board of Appeal found in paragraph 33 of the contested decision that those signs are similar to an above-average degree owing to the fact that they coincide in their initial element ‘vita’ and that, in the second part, they also have the letters ‘d’, ‘h’ and ‘a’ in common. The final parts of the signs differ only in the order of the letters and by the additional letter ‘n’, which is present in the earlier mark. The Board of Appeal also pointed to the greater impact that the initial part of a sign normally has.
84      The applicant disputes those assessments and relies, in essence, on the premiss that the common element ‘vita’ is irrelevant for the visual comparison of the signs at issue on account of its descriptive character. However, as stated in paragraph 81 above, such an approach is incorrect. Consequently, the applicant’s arguments in that regard cannot succeed.
85      Moreover, for the reasons summarised in paragraph 83 above, the Board of Appeal’s finding that the signs at issue are visually similar to an above-average degree should be upheld.
86      In the third place, as regards the phonetic comparison of the signs at issue, the Board of Appeal found in paragraph 34 of the contested decision that the signs have a degree of similarity that is above average, despite the differences in their endings and the presence of the additional letter ‘n’ in the earlier mark. The Board of Appeal noted that the signs at issue consist of three syllables (‘vi-tad-ha’ or ‘vi-ta-dha’ and ‘vi-ta-nadh’ respectively), that they have the same sequence of vowels, and that their rhythm and intonation are similar.
87      It must be stated that, in the same way as for the visual comparison of the signs at issue, the applicant’s arguments concerning its challenge to the Board of Appeal’s assessment of the phonetic similarity of those signs rest on the erroneous premiss that the element ‘vita’ is irrelevant for the comparison of those signs.
88      The Board of Appeal was fully entitled to find that the phonetic similarities of the signs at issue set out in paragraph 86 above made it possible to find an above-average degree of phonetic similarity. Contrary to what is argued by the applicant, the differences observed in the respective final elements of those signs, ‘dha’ and ‘nadh’, cannot offset the identical nature of the element ‘vita’ and also their similarities regarding the number of syllables and the rhythm and intonation. Consequently, the Board of Appeal’s finding that the signs at issue have an above-average phonetic similarity must be upheld.
89      In the fourth place, as regards the conceptual comparison of the signs at issue, the Board of Appeal found in paragraph 35 of the contested decision that those signs had no meaning and, therefore, did not convey a common concept for Spanish consumers.
90      In that regard, the applicant also submits that the conceptual aspect has no bearing on the assessment of the similarity of the signs at issue. It nevertheless emphasises, again, the importance and decisive role of their respective final elements, ‘dha’ and ‘nadh’, owing to the descriptive, and therefore in its view negligible, nature of the common element ‘vita’. According to the applicant, a conceptual comparison is not possible owing to the fact that the relevant public would perceive the differences between the elements ‘dha’ and ‘nadh’, which it would view as being fanciful.
91      As already stated in paragraphs 77 to 82 above, all the elements of the signs at issue must be taken into account in the comparison of those signs, such that the applicant’s arguments relating to their conceptual comparison cannot succeed.
92      Nevertheless, the Board of Appeal’s assessment as to the lack of a common concept in relation to the signs at issue is not correct. First, as is apparent from paragraph 75 above, the Board of Appeal should have broken those signs down into their various constituent elements for the purpose of comparing them. Second, the fact that, as stated in paragraph 74 above, the Spanish general public will understand the element ‘vita’, which is common to the signs at issue, as a reference to life, vitality or vitamins, supports the conclusion that the signs are conceptually similar. Nevertheless, having regard to the weakly distinctive character of the common component ‘vita’, the conceptual similarity of the signs at issue, taken as a whole, must be considered to be low (see, to that effect and by analogy, judgment of 5 October 2020, Eugène Perma France v EUIPO – SPI Investments Group (NATURANOVE), T‑602/19, not published, EU:T:2020:463, paragraph 51).
93      In the light of all the foregoing considerations, it must be held that the degree of visual and phonetic similarity of the signs at issue is above average and that it is low in conceptual terms.
94      Accordingly, the second limb must be rejected as unfounded and the examination of the present action must be continued while taking into account the Board of Appeal’s error in the contested decision, as found in paragraph 92 above.
The third limb, alleging an error of assessment in the analysis of the likelihood of confusion
95      The applicant complains that the Board of Appeal found that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009. In particular, according to the applicant, the Board of Appeal erred in failing to take due account of the lack of distinctiveness of the common element ‘vita’ or of the considerable impact of the respective, allegedly distinctive, second parts of the signs at issue on the overall visual and phonetic impression which they convey. According to the applicant, those elements were sufficient in order for those signs to be regarded as different. In addition, it states that it produced evidence of the coexistence of the signs at issue on the Spanish market for several years, in the form of notifications from the Spanish Agency for Food Safety and Nutrition.
96      EUIPO and the intervener contest the applicant’s arguments.
97      In paragraphs 37 to 39 of the contested decision, the Board of Appeal, first of all, found that the earlier mark enjoyed a normal degree of distinctiveness, since it had no meaning with respect to the goods at issue for the relevant consumers. Next, it took into account the identity or similarity, at least to a low degree, of the goods at issue, the above-average visual and phonetic similarity of the signs at issue, and the normal distinctiveness of the earlier mark in order to find that there was a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation No 207/2009. Finally, as regards the assertion of an alleged peaceful coexistence of the marks at issue on the Spanish market, the Board of Appeal found that the applicant had not submitted sufficient evidence in that regard.
98      In the first place, it should be noted that although the applicant, in the context of the global assessment of the likelihood of confusion, emphasises the importance of the purported lack of distinctive character of the element that is common to the signs at issue, namely the element ‘vita’, it does not dispute the Board of Appeal’s assessment as to the normal degree of inherent distinctiveness of the earlier mark. In that regard, it should, however, be noted that the classification of the degree of inherent distinctiveness of the earlier mark as ‘normal’ is not devoid of ambiguity (judgment of 5 October 2020, NATURANOVE, T‑602/19, not published, EU:T:2020:463, paragraph 66).
99      The earlier mark at issue is a word sign, which is itself composed of two components, namely ‘vita’ and ‘nadh’.
100    As stated in paragraph 74 above, the element ‘vita’ in the earlier mark will be perceived by the Spanish general public as allusive, with the result that that element is weakly distinctive. Furthermore, it must be pointed out that, although it is in first place in the sign constituting that mark, that element represents only half of its length.
101    The second component of the earlier mark, namely the element ‘nadh’, which is therefore the same length as the element ‘vita’, has, by the same token and having regard to its lack of meaning, a much greater distinctive character than the first element and therefore confers on the earlier mark a fanciful character. Having regard to its length and characteristics, it must be held that the element ‘nadh’ of the earlier mark strengthens the inherent distinctive character of that mark, taken as a whole, which must be regarded as being average.
102    In the second place, the applicant complains that the Board of Appeal did not take into account the differences between the signs at issue and also between the goods at issue and, consequently, that it erred in finding that there was a likelihood of confusion.
103    In that regard, it must be borne in mind that, according to case-law, the risk that the relevant public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).
104    In accordance with the principle of interdependence, a low degree of similarity between the goods or services designated by the marks at issue may be offset by a high degree of similarity between those marks, and vice versa (see judgment of 25 November 2015, Soprema v OHIM – Sopro Bauchemie (SOPRAPUR), T‑763/14, not published, EU:T:2015:883, paragraph 68 and the case-law cited).
105    The more distinctive the earlier mark, the greater the risk of confusion (judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24, and of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18).
106    The likelihood of confusion varies according to the level of attention displayed by the relevant public. Thus, according to the case-law, although the relevant public only rarely has the chance to make a direct comparison between the different marks and must rely on an imperfect recollection of them, a high level of attention on the part of the relevant public can lead to the conclusion that it will not confuse the marks at issue despite the lack of direct comparison between the marks (see judgment of 13 July 2017, Migros-Genossenschafts-Bund v EUIPO – Luigi Lavazza (CReMESPRESSO), T‑189/16, not published, EU:T:2017:488, paragraph 86 and the case-law cited).
107    As regards the factors relevant to the assessment of the likelihood of confusion, it should be noted first that, as stated in paragraphs 35 to 63 above, the goods at issue are identical or similar to varying degrees.
108    Second, as noted in paragraph 32 above, the level of attention of the Spanish general public, to which the analysis of the existence of a likelihood of confusion is limited in the present case, is high or higher than average.
109    Third, as already stated in paragraph 93 above, the signs at issue are visually and phonetically similar to an above-average degree and to a low degree conceptually. Although the element ‘vita’, which both signs have in common, is allusive, it cannot have the effect of excluding the similarities that exist between those signs on account of that element, for the reasons set out in paragraphs 77 to 93 above. Likewise, contrary to the applicant’s argument, the visual and phonetic differences between the most distinctive elements of the signs at issue, namely the elements ‘dha’ and ‘nadh’, are rather limited and, consequently, do not suffice for a finding that those signs are different having regard to all their similarities, in particular those resulting from the element ‘vita’, which both signs have in common. Consequently, the applicant’s arguments that the Board of Appeal wrongly found that there was a likelihood of confusion owing to an error in the assessment of the similarity of the signs at issue must be rejected.
110    Fourth, as already noted in paragraph 101 above, the earlier mark has an average degree of inherent distinctiveness.
111    Having regard to all the factors referred to in paragraphs 107 to 110 above, the Board of Appeal was fully entitled to find that there was a likelihood of confusion, despite the high or higher-than-average level of attention of the general public. Although that latter factor is important for the global assessment of the likelihood of confusion, the above-average visual and phonetic similarity of the signs at issue, the low degree of conceptual similarity of those signs, the identity or similarity to varying degrees of the goods in question, and the average degree of inherent distinctiveness of the earlier mark meant that the Spanish general public might believe that the goods in question came from the same undertaking or from economically linked undertakings.
112    Consequently, the Board of Appeal was fully entitled to conclude that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.
113    In the third place, the applicant complains that the Board of Appeal did not take account of the fact that the marks at issue had coexisted peacefully on the Spanish market for several years.
114    In that regard, it is apparent from the case-law that the coexistence of two marks on a particular market may, together with other elements, contribute to diminishing the likelihood of confusion in relation to those marks on the part of the relevant public. The absence of a likelihood of confusion may thus be inferred from the peaceful nature of the coexistence of the marks at issue on the market in question. However, that possibility can be taken into consideration only if, at the very least, the applicant for the trade mark at issue has duly demonstrated, during proceedings before EUIPO concerning relative grounds of refusal, that that co-existence was based upon the absence of any likelihood of confusion on the part of the relevant public in relation to the mark on which it relies and the mark of the other party to the proceedings on which the opposition is based, and provided that the mark on which it relies and the mark at issue are identical (see, to that effect, judgment of 28 April 2021, West End Drinks v EUIPO – Pernod Ricard (The King of SOHO), T‑31/20, not published, EU:T:2021:217, paragraphs 127 and 128 and the case-law cited).
115    To that end, it is open to such an applicant to demonstrate this by putting forward a body of evidence to that effect. In that regard, evidence demonstrating that the relevant public recognised each of the trade marks at issue before the time when the application for registration of the contested mark was filed is particularly relevant. In addition, in so far as, according to the case-law, the coexistence of two trade marks must be sufficiently lengthy to be capable of influencing the perception of the relevant consumer, the duration of the coexistence also constitutes an essential factor (see judgment of 28 April 2021, The King of SOHO, T‑31/20, not published, EU:T:2021:217, paragraph 128 and the case-law cited).
116    In view of the abovementioned case-law, the applicant cannot exempt itself from its obligation to demonstrate that the coexistence on which it relies is based on the absence of any likelihood of confusion on the part of the relevant public; that demonstration may be made by way of a body of evidence (see judgment of 28 April 2021, The King of SOHO, T‑31/20, not published, EU:T:2021:217, paragraph 129 and the case-law cited).
117    In the present case, as stated in paragraph 39 of the contested decision, the applicant merely produced two notifications from the Spanish Agency for Food Safety and Nutrition concerning the placing on the market of food supplements under the names ‘Vita DHA’ and ‘Vita DHA Materna’. In the light of the requirements stemming from the case-law cited in paragraphs 114 and 116 above, the Board of Appeal correctly found that the applicant had not proved the peaceful coexistence of the earlier mark and the signs Vita DHA and Vita DHA Materna on the Spanish food supplements market, other than the fact that those signs are not identical to the mark applied for.
118    Consequently, the third limb must be dismissed as unfounded, as must, accordingly, the single plea in law relied on in support of the present action and that action in its entirety, without it being necessary to rule on the admissibility of the head of claim seeking that the Court declare the signs at issue to be dissimilar and allow the application for registration at issue.
Costs
119    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.
120    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 (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders UGA Nutraceuticals Srl to pay the costs.
Tomljenović
Škvařilová-Pelzl
Nõmm
Delivered in open court in Luxembourg on 2 March 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.