JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
9 February 2017 (*)
(EU trade mark — Opposition proceedings — Application for the figurative EU trade mark TRIPLE EVOLUTION — Earlier EU word mark Evolution — Relative ground of refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)
In Case T‑82/16,
International Gaming Projects Ltd, established in Qormi (Malta), represented initially by M. Garayalde Niño and A. Alpera Plazas, and subsequently by M. Garayalde Niño, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by S. Bonne, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
adp Gauselmann GmbH, established in Espelkamp (Germany), represented by P. Koch Moreno, lawyer,
ACTION brought against the decision of the Second Board of Appeal of EUIPO of 2 December 2015 (Case R 0725/2015-2), relating to opposition proceedings between adp Gauselmann and International Gaming Projects,
THE GENERAL COURT (Ninth Chamber),
composed of S. Gervasoni, President, L. Madise and R. da Silva Passos (Rapporteur), Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 23 February 2016,
having regard to EUIPO’s response lodged at the Court Registry on 4 May 2016,
having regard to the intervener’s response lodged at the Court Registry on 25 April 2016,
having regard to the applicant’s offer of evidence, lodged at the Court Registry on 22 June 2016, concerning a decision of the Opposition Division of EUIPO of 1 June 2016 and EUIPO’s observations in that respect lodged at the Court Registry on 8 July 2016,
having regard to the fact that no request for a hearing was submitted by the main 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 9 July 2013, the applicant, International Gaming Projects Ltd, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) in accordance with Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p. 1).
2        The mark in respect of which registration was sought is the following figurative sign:
3        The goods and services in respect of which registration was sought are, inter alia, in Classes 28 and 41 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, for each of those classes, to the following description:
–        Class 28: ‘Coin-fed amusement gaming machines; amusement and gaming machines; amusement and gaming electric and/or electronic machines, apparatus and installations; video game machines and apparatus; parts and fittings for the said goods not included in other classes’;
–        Class 41: ‘Provision of education, training and entertainment; providing gaming house facilities; provision of gaming services; casino services; provision of amusements facilities; rental of recreational and gaming machines’.
4        The EU trade mark application was published in Community Trade Marks Bulletin No 146/2013 of 5 August 2013.
5        On 14 August 2013, the intervener, adp Gauselmann GmbH, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
6        The opposition was based on the existence of the earlier EU word mark Evolution, registered on 1 September 2010 under No 7375157, covering goods and services in Classes 28 and 41 and corresponding to the following description:
–        Class 28: ‘Coin-operated arcade games (machines); drawing apparatus for prize games and lotteries, draws or raffles; automatic gaming machines; including all the aforesaid automatic machines, machines and apparatus operating in networks; apparatus and devices for accepting and storing money, being fittings for the aforesaid automatic machines, included in class 28; none of the aforesaid goods in relation to wrestling or sport’;
–        Class 41: ‘Rental of automatic slot machines and entertainment machines for casinos; arranging and conducting games; gaming services; operating of lotteries; providing casino facilities (gambling); amusement arcade services; games on the Internet; online game services (of a computer network); none of the aforesaid services relating to wrestling or sports entertainment’.
7        The grounds relied upon in support of the opposition were those referred to in Article 8(1)(a) and (b) of Regulation No 207/2009.
8        On 13 February 2015, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation No 207/2009 and rejected the application for registration in respect of all the goods and services referred to in paragraph 3 above.
9        On 13 April 2015, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 58 to 60 of Regulation No 207/2009, against the decision of the Opposition Division.
10      By decision of 2 December 2015 (‘the contested decision’), the Second Board of Appeal of EUIPO dismissed the appeal brought against the decision of the Opposition Division. It considered, first of all, that the relevant public was composed, throughout the European Union, of average, reasonably well-informed and reasonably observant and circumspect consumers, with an average level of attention, and a professional public with a higher level of attention. Next, the Board of Appeal considered, referring to the reasoning of the Opposition Division’s decision, that the goods and services covered by the mark applied for were identical, as regards the goods and services in Classes 28 and 41, to those covered by the earlier mark. Lastly, the Board of Appeal considered that the signs at issue were visually, phonetically and conceptually similar, since, in essence, neither the element ‘triple’ nor the element ‘evolution’ dominated the mark applied for, the signs at issue both contained the element ‘evolution’ and the earlier mark was fully included in the mark applied for. In the light of those considerations, and of the normal distinctiveness of the earlier mark, the Board of Appeal concluded that there was a likelihood of confusion between the signs at issue, within the meaning of Article 8(1)(b) of Regulation No 207/2009.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision;
–        order the registration of the mark applied for;
–        order EUIPO and the intervener to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
13      The intervener contends that the Court should:
–        dismiss the action;
–        confirm the contested decision and, accordingly, the refusal of registration of the mark applied for;
–        order the applicant to pay the costs.
Law
The admissibility of documents produced for the first time before the Court
14      The applicant includes, in Annex 5 to the application, documents attesting to the fact that it is the proprietor of EU trade marks containing the element ‘triple’. It produces those documents in order to support its argument that the relevant public will immediately identify the mark applied for as part of a family of trade marks of which it is the proprietor.
15      The intervener contests the admissibility of those documents, since they were not produced before the Opposition Division or before the Second Board of Appeal during the administrative procedure.
16      In that respect, it is apparent from the case-law that the purpose of actions before the General Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 65 of Regulation No 207/2009, so it is not the Court’s function to review the facts in the light of documents produced for the first time before it (see, to that effect, judgment of 24 November 2005, Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited). It follows that the documents in Annex 5 to the application must be excluded, without it being necessary to assess their probative value.
17      In addition, after the close of the written part of the procedure, the applicant — invoking Articles 85 and 191 of the Court’s Rules of Procedure — produced a decision of the Opposition Division of EUIPO of 1 June 2016 (opposition B 002571613) and requested that it be added to the file of the proceedings before the Court. It submits, in essence, that it is indicated in that decision that the word element ‘triple’ in the mark TRIPLE MANIA, of which it is the proprietor, plays an independent distinctive role and that this is also the case in the mark applied for.
18      Although produced for the first time before the General Court, that document is not strictly evidence, within the meaning of Article 85 of the Rules of Procedure, but relates to EUIPO’s usual practice in reaching decisions, to which, even if that practice is subsequent to the procedure before EUIPO, a party has the right to refer (see, to that effect, judgments of 24 November 2005, ARTHUR ET FELICIE, T‑346/04, EU:T:2005:420, paragraph 20, and of 18 November 2014, Repsol v OHIM — Adell Argiles (ELECTROLINERA), T‑308/13, not published, EU:T:2014:965, paragraph 20).
19      It follows that the decision of the Opposition Division of EUIPO of 1 June 2016, produced by the applicant after the close of the written part of the procedure, may be taken into consideration.
Substance
20      The Court notes as a preliminary point that, since ‘confirming’ the contested decision is tantamount to dismissing the action, the intervener’s second head of claim seeks, in essence, that the action be dismissed and is thus indissociable from its first head of claim (see, to that effect, judgment of 5 February 2016, Kicktipp v OHIM — Italiana Calzature (kicktipp), T‑135/14, EU:T:2016:69, paragraph 19 (not published) and the case-law cited).
21      The applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009.
22      In that regard, the applicant considers that the Board of Appeal erroneously based its analysis on the principle that, in composite marks, such as the mark applied for, the word elements are necessarily more distinctive that the figurative elements. In doing so, the Board of Appeal underestimated the figurative elements of the mark applied for, although those elements are particularly important in the amusement and entertainment sector. In view of that circumstance and of the presence of the word element ‘triple’ in the mark applied for, the Board of Appeal incorrectly considered that the signs at issue were visually and phonetically similar. Furthermore, the word element ‘triple’ in the mark applied for will be perceived, by the relevant public, as referring to a family of trade marks of which the applicant is the proprietor, with the result that the Board of Appeal wrongly reduced the conceptual value of that element to an adjective accompanying the word element ‘evolution’. In view of the differences between the signs at issue, and given in particular the importance of the visual elements of marks which, like the mark applied for, are used in amusement arcades or casinos, the Board of Appeal wrongly concluded that there was a likelihood of confusion between those signs.
23      EUIPO and the intervener dispute the applicant’s arguments.
24      Article 8(1)(b) of Regulation No 207/2009 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for 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.
25      According to settled case-law, the risk that the public might 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 the 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 concerned (see judgment of 9 July 2003 in 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).
26      For the purposes of applying Article 8(1)(b) of Regulation No 207/2009, 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).
Relevant public
27      The Board of Appeal defined the relevant public, in paragraphs 17 to 20 of the contested decision, as being composed of the general public, with an average level of attention, and a professional public, with a higher level of attention. In addition, the Board of Appeal considered that the relevant territory was that of the European Union.
28      In the light of the evidence in the file, the contested decision must be approved on those points, which, moreover, were not contested by the applicant.
The comparison of the goods and services
29      In paragraph 22 of the contested decision, the Board of Appeal found, referring to the reasoning of the Opposition Division’s decision, that the goods and services covered by the mark applied for were identical, as regards the goods and services in Classes 28 and 41, to those covered by the earlier mark. That finding, which, moreover, the applicant has also not contested, must be approved.
The comparison of the signs at issue
30      The global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, account being taken, in particular, of their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
–       The visual comparison of the signs at issue
31      The Board of Appeal considered, in paragraph 29 of the contested decision, that the mark applied for was a figurative mark composed of the two word elements ‘triple’ and ‘evolution’, neither of which appeared dominant. It inferred from this, in paragraph 30 of the contested decision, that the signs coincided visually in the word element ‘evolution’, which was the only element in the earlier mark and which was entirely included in the mark applied for. Starting from the premiss that the word elements of a composite mark, such as the mark applied for, should in principle be regarded as more distinctive than its figurative elements, the Board of Appeal found that the signs at issue were visually similar.
32      The applicant contests those findings, arguing that the visual impact of the earlier mark is very low, since it is a plain word mark consisting of the single term ‘evolution’. By contrast, according to the applicant, the two word elements of the mark applied for are so stylised that its figurative elements should have been regarded as holding an equivalent position to those word elements in the comparison of the signs. The Board of Appeal underestimated those figurative elements, even though those elements are particularly important in the amusement and entertainment sector.
33      As a preliminary point, it should be recalled that there is nothing preventing a determination as to whether there is any visual similarity between a word mark and a figurative mark, since the two types of mark have graphic form capable of creating a visual impression (see judgment of 4 May 2005, Chum v OHIM — Star TV (STAR TV), T‑359/02, EU:T:2005:156, paragraph 43 and the case-law cited).
34      Furthermore, where a mark consists of both figurative and word elements, it does not automatically follow that it is the word element which must always be considered to be dominant. In the case of a composite mark, the figurative element may hold an equivalent position to the word element (see judgment of 13 December 2012, Natura Selection v OHIM — Ménard (natura), T‑461/11, not published, EU:T:2012:693, paragraph 47 and the case-law cited).
35      Further, it is appropriate to examine the intrinsic qualities of the figurative elements and the word elements of the mark applied for, as well as their respective positions, in order to identify, where appropriate, whether one of those elements is dominant (see, to that effect, judgment of 16 January 2008, Inter-Ikea v OHIM — Waibel (idea), T‑112/06, not published, EU:T:2008:10, paragraph 49).
36      The word elements ‘triple’ and ‘evolution’ appear in the mark applied for in capital letters, in a font which is slightly stylised and close to printed characters, the edges of which are rounded and outlined in black in order to produce a slight effect of depth. The element ‘triple’ appears in red, shading off to orange in its upper part, while the element ‘evolution’ appears in bright yellow, shading off to a darker yellow in its lower part. In addition, the element ‘triple’ is placed above the element ‘evolution’, and the two elements give the impression that they slightly cross each other in a play of perspective. Each of the two white stars on the mark applied for is small, contained in a single letter of each of the word elements of that mark, and has a decorative character, giving the mark a luminous shine effect.
37      The Board of Appeal was therefore correct in finding, in essence, in paragraphs 29 and 30 of the contested decision, that the figurative elements of the mark applied for were limited to the arrangement of its two word elements ‘triple’ and ‘evolution’, namely their position, their colour, their outline and that the stars on that mark would be perceived, if at all, as a simple decoration.
38      Since the figurative elements of the mark applied for are directly and intrinsically linked to its word elements and are weakly distinguished by their originality, those word elements will be easily and immediately identifiable by the relevant public (see, by analogy, judgments of 10 December 2008, MIP Metro v OHIM — Metronia (METRONIA), T‑290/07, not published, EU:T:2008:562, paragraph 44, and of 26 September 2014, Koscher + Würtz v OHIM — Kirchner & Wilhelm (KW SURGICAL INSTRUMENTS), T‑445/12, EU:T:2014:829, paragraph 56), including in the entertainment and amusement sector.
39      The applicant’s line of argument that the word element ‘triple’ should have been accorded greater importance than the word element ‘evolution’ in the comparison of the signs at issue, given, first, its position at the top of the mark applied for and, secondly, its red colour, cannot be accepted.
40      It is indeed apparent from the case-law cited by the applicant that, in general, consumers attach more importance to the initial part of a sign (see, to that effect, judgment of 22 June 2005, Plus v OHIM — Bälz et Hiller (Turkish Power), T‑34/04, EU:T:2005:248, paragraph 55). However, that is not always the case (see, to that effect, judgment of 22 May 2012, Nordmilch v OHIM — Lactimilk (MILRAM), T‑546/10, not published, EU:T:2012:249, paragraph 39 and the case-law cited). The comparison between two signs must be carried out according to the particular circumstances of each case (see judgment of 4 May 2016, Bodegas Williams & Humbert v EUIPO — Central Hisumer (BOTANIC WILLIAMS & HUMBERT LONDON DRY GIN), T‑193/15, not published, EU:T:2016:266, paragraph 54 and the case-law cited).
41      In the present case, first of all, the position of the word element ‘evolution’ under the word element ‘triple’ in the mark applied for is attenuated by the fact that the element ‘evolution’ takes up more space than the element ‘triple’ within that mark. Next, the arrangement of each of those elements, which cross each other in a perspective effect, does not allow the conclusion to be reached that one dominates the other visually. Lastly, those elements both appear in bright and attractive colours, with the result that the red colour of the element ‘triple’ is not liable to draw more attention than the yellow colour of the element ‘evolution’, each of those elements being, moreover, decorated with a star giving them the same luminous shine effect.
42      Accordingly, the Court does not consider that the relevant public will attach more importance, within the mark applied for, to the element ‘triple’ than to the element ‘evolution’.
43      It follows that the Board of Appeal was correct to conclude that the two marks at issue were visually similar, since they coincided in the word element ‘evolution’, the only element of the earlier mark, which was entirely reproduced in the mark applied for.
–        The phonetic comparison of the signs at issue
44      The Board of Appeal considered, in paragraph 31 of the contested decision, that the signs at issue were, overall, phonetically similar, because of their common word element ‘evolution’.
45      The applicant criticises that assessment, arguing that the word element ‘triple’ within the mark applied for, which will be pronounced first, contributes to the phonetic differentiation of the signs at issue.
46      In that regard, the Court notes, first of all, that the signs at issue coincide in the word element ‘evolution’, which is the only element of the earlier word mark and the pronunciation of which by the relevant public, in the mark applied for, will not be altered by the presence of the word element ‘triple’. Secondly, the common element ‘evolution’ represents four of the six syllables of the mark applied for. Lastly, as EUIPO and the intervener submit, the term ‘triple’ is an adjective meaning ‘trice as much or many’ or ‘three times’, and is therefore intended to be pronounced in combination with the noun that it qualifies, in this case the element ‘evolution’, the second word element of the mark applied for.
47      It follows that, although the word element ‘triple’ is indeed present only in the mark applied for, that element is not such as to call into question the finding, made in paragraph 31 of the contested decision, that, overall, the signs at issue are phonetically similar because of the common word element ‘evolution’.
–       The conceptual comparison of the signs at issue
48      The Board of Appeal considered, in paragraph 32 of the contested decision, that the signs at issue were conceptually identical, since the common word element ‘evolution’ would be perceived by the relevant public as referring, inter alia, to the process of unrolling, opening out or revealing, or a movement of change or position, whereas the word element ‘triple’ was merely a qualifier meaning ‘trice as much or many’ or ‘three times’.
49      The applicant disputes that conclusion. It submits that that conclusion does not take account of the conceptual differences between the signs at issue brought about by the applicant’s extensive use of the word ‘triple’ in other EU trade marks of which it is the proprietor, and which constitute a family of trade marks perceived as such by the relevant public.
50      The intervener contends, primarily, that that argument is inadmissible, since it has been put forward for the first time before the Court.
51      As noted in paragraph 16 above, it follows from the case-law that the purpose of actions before the General Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 65 of Regulation No 207/2009, so it is not the Court’s function to review the facts in the light of matters produced for the first time before it (see, to that effect, judgments of 24 November 2005, Sadas v OHIM — LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 19 and the case-law cited, and of 30 September 2015, Gat Microencapsulation v OHIM — BASF (KARIS), T‑720/13, not published, EU:T:2015:735, paragraph 89).
52      In the present case, it is apparent from the file that the first time that the applicant argued that the mark applied for has an enhanced distinctiveness because it belongs to a family of trade marks was in the course of the proceedings before the Court. It is therefore a new argument that the applicant did not put forward before EUIPO and which the latter was not required to take into account of its own motion, since Article 76(1), in fine, of Regulation No 207/2009 restricts its examination to the facts, evidence and arguments provided by the parties. That argument is therefore inadmissible.
53      In any event, the applicant puts forward that argument in order to demonstrate the conceptual difference between the signs at issue. However, while the existence of a family of trade marks is an element which must be taken into account in the global assessment of the likelihood of confusion between two marks, it is irrelevant in the assessment of the similarity between two signs at issue (see, to that effect, judgment of 24 March 2011, Ferrero v OHIM, C‑552/09 P, EU:C:2011:177, paragraph 98). In addition, even if that argument were to be understood as seeking to rule out any likelihood of confusion between the signs at issue, it must be noted that the alleged enhanced distinctiveness of the mark applied for because it belongs to a family of trade marks containing the element ‘triple’ appears to be contradicted by the existence, demonstrated by the intervener, of several marks containing that element which are registered for goods and services falling within, inter alia, Classes 28 and 41 and of which the applicant is not the proprietor.
54      Moreover, there is nothing to call into question the conceptual comparison of the signs at issue carried out by the Board of Appeal. In particular, the meaning of the word ‘evolution’ will not be changed, for the relevant public, by the presence of the word element ‘triple’, since the latter simply evokes, in this case, a multiplication by three of the element ‘evolution’.
55      Having regard to the foregoing, it must be held that the Board of Appeal correctly concluded that the signs at issue were conceptually identical.
Global assessment of the likelihood of confusion
56      The Board of Appeal considered, in paragraphs 37 to 41 of the contested decision, first, that the signs at issue were similar overall and, secondly, that the goods and services were identical, in order to conclude that the overall impression created by the signs at issue and their similarity were such as to give rise to a likelihood of confusion on the part of the relevant public.
57      The applicant disputes that finding.
58      In that respect, it follows from the foregoing considerations that the goods and services in question are identical and that the marks at issue, taken as a whole, and despite the additional elements in the mark applied for, show a certain degree of visual, phonetic and conceptual similarity.
59      In those circumstances, the Board of Appeal was correct in concluding that there was a likelihood of confusion between the marks at issue.
60      That conclusion cannot be called into question by the applicant’s argument that, in the gaming and entertainment sector, to which the signs at issue relate, the consumer instinctively approaches the machine he finds most attractive, without referring to its name, with the result that the Board of Appeal should have accorded the visual element more importance than the phonetic and conceptual elements.
61      Even if the visual aspect of the signs at issue in the present case should be accorded more importance in the assessment of the likelihood of confusion, that consideration is without incidence on the global assessment carried out by the Board of Appeal, since, as can be seen from paragraphs 29 and 31 to 43 above, first, the goods and services at issue are identical and, secondly, the Board of Appeal correctly considered that the marks at issue were visually similar.
62      The conclusion in paragraph 59 above also cannot be called into question by the decision of the Opposition Division of EUIPO produced by the applicant after the close of the written part of the procedure, in which the word element ‘triple’ contained in one of the applicant’s marks other than the mark applied for in the present case was found to have independent distinctiveness.
63      As EUIPO rightly submits, it follows from settled case-law that the legality of decisions of the Boards of Appeal must be evaluated solely on the basis of Regulation No 207/2009, as interpreted by the Courts of the European Union, and not on the basis of earlier decisions of those Boards of Appeal (judgment of 25 March 2015, Apple and Pear Australia and Star Fruits Diffusion v OHIM — Carolus C. (English pink), T‑378/13, EU:T:2015:186, paragraph 59). A fortiori, that evaluation must not be based on a decision such as that adopted by the Opposition Division on 1 June 2016, that is to say after the contested decision was adopted.
64      In any event, in its decision of 1 June 2016, the Opposition Division considered, in essence, that the element ‘triple’, common to the signs at issue in those proceedings, played an independent distinctive role since it was combined, in one sign, with the word element ‘mania’ and, in the other, with the word element ‘bingo’, neither of which was more distinctive than the common element. In its analysis of the existence of a likelihood of confusion, it inferred from the presence of the common element ‘triple’ that those signs were visually, phonetically and conceptually similar and therefore concluded that there was a likelihood of confusion between the two marks each containing the word element ‘triple’. In the present case, the same conclusion applies for a similar reason, given the presence in each of the marks at issue of the word element ‘evolution’.
65      Lastly, the applicant submits, in essence, that the existence of a likelihood of confusion for the relevant public is minimised by the fact that the mark applied for will usually be accompanied, inside the casinos and amusement arcades where it appears, by its flagship trade mark Ortiz gaming. The use of the mark applied for together with that flagship trade mark would generally allow the relevant public to identify the company from which the goods and services covered by the mark applied for originate. Even if it were necessary to take that argument into account, although it was not raised before EUIPO, it cannot be accepted. As particular marketing strategies for the goods or services covered by the marks may vary over time and depend on the wishes of the proprietors of those marks, an analysis of whether there will be a likelihood of confusion between two marks cannot be dependent on the marketing intentions of the proprietors of the marks, whether implemented or not, which are by their very nature subjective (see, to that effect, judgments of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59; of 9 September 2008, Honda Motor Europe v OHIM — Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 63; and of 3 May 2016, Aranynektár v EUIPO — Naturval Apícola (Natür-bal), T‑503/15, not published, EU:T:2016:261, paragraph 54). In addition, and in any event, the only elements produced by the applicant in support of that argument consist in two photographs in which the mark applied for does not appear and which are therefore not capable of establishing that that mark is used together with the flagship trade mark Ortiz gaming.
66      In the light of the foregoing, the single plea in law must be rejected as unfounded and, accordingly, the action must be dismissed, without it being necessary to rule on the admissibility of the head of claim requesting the Court to order the registration of the mark applied for.
Costs
67      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders International Gaming Projects Ltd to pay the costs.
Gervasoni
Madise
da Silva Passos
Delivered in open court in Luxembourg on 9 February 2017.
E. Coulon
S. Gervasoni
Registrar
President
* Language of the case: English.