JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
15 March 2023 (*)
(EU trade mark – Opposition proceedings – Application for the EU word mark BREZTREV – Earlier EU word marks ONBREZ, DAYBREZ, BREZILIZER and BREEZHALER – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑174/22,
Novartis AG, established in Basle (Switzerland), represented by A. Nordemann-Schiffel, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by N. Lamsters and T. Frydendahl, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
AstraZeneca AB, established in Södertälje (Sweden), represented by C. Tenkhoff and T. Herzog, lawyers,
THE GENERAL COURT (Eighth Chamber),
composed of A. Kornezov (Rapporteur), President, G. De Baere and S. Kingston, Judges,
Registrar: E. Coulon,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Novartis AG, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 21 January 2022 (Case R 738/2021-2) (‘the contested decision’).
Background to the dispute
2        On 28 June 2019, the intervener, AstraZeneca AB, filed an application with EUIPO for registration of an EU trade mark in respect of the word sign BREZTREV.
3        The mark applied for designated goods in 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 corresponding to the following description: ‘Pharmaceutical preparations and substances’.
4        On 2 October 2019, the applicant filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5        The opposition was based on the earlier EU word marks ONBREZ, DAYBREZ, BREZILIZER and BREEZHALER. The marks ONBREZ and BREEZHALER designated, inter alia, goods in Class 5 corresponding to the following description: ‘Pharmaceutical preparations’. The marks BREZILIZER and DAYBREZ designated goods in the same class corresponding to the following description: ‘Pharmaceutical preparations’.
6        The grounds relied on in support of the opposition were those set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        On 25 February 2021, the Opposition Division rejected the opposition.
8        On 22 April 2021, the applicant filed an appeal with EUIPO against the decision of the Opposition Division.
9        By the contested decision, the Board of Appeal dismissed the appeal.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order EUIPO to pay the costs.
11      EUIPO and the intervener contend that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
12      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 2017/1001. It disputes the findings of the Board of Appeal concerning, first, the level of attention of the relevant public, secondly, the comparison of the signs at issue and, thirdly, the global assessment of the likelihood of confusion.
13      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for may not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
14      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. According to the same case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 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).
15      For the purposes of applying Article 8(1)(b) of Regulation No 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
16      In the present case, the applicant does not dispute the comparison of the goods carried out by the Board of Appeal in paragraph 24 of the contested decision, according to which the goods concerned are identical. Nor does it dispute the Board’s definition of the relevant territory in paragraph 23 of the contested decision, according to which the relevant territory is the European Union.
The level of attention of the relevant public
17      In the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007, Mundipharma v OHIM – Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).
18      The Board of Appeal found, in paragraphs 21 and 22 of the contested decision, that the relevant public consisted of both medical professionals with a high degree of attentiveness and end consumers with an ‘above average’ degree of attentiveness.
19      The applicant does not dispute that the relevant public is composed of both medical professionals and the general public. However, it disputes the Board of Appeal’s finding that medical professionals and end consumers display the same high degree of attentiveness. In that regard, it distinguishes between, on the one hand, medical professionals, whose attention is both high and of a high ‘quality’ on account of their training and professional activity, and, on the other hand, end consumers, who it does not dispute will pay greater attention to the goods in question compared to those used as everyday articles, but whose ‘quality’ of attention is necessarily different from that of medical professionals in that they do not have medical or pharmaceutical training. Furthermore, pharmaceutical preparations are potentially prescribed for, and consumed or used by all sectors of the general public, in particular children, adolescents and elderly people, whose level and ‘quality’ of attention may be different.
20      The intervener and EUIPO dispute those arguments.
21      As observed by EUIPO, it should first of all be noted that it is apparent from settled case-law that medical professionals have a high degree of attentiveness when prescribing medicines. Moreover, with regard to end consumers, in cases where pharmaceutical products are sold without prescription, it must be assumed that those goods will be of concern to consumers, who are deemed to be reasonably well informed and reasonably observant and circumspect where those goods affect their state of health, and that those consumers are less likely to confuse different versions of such goods. Furthermore, even assuming that a medical prescription is mandatory, consumers are likely to demonstrate a high level of attentiveness upon prescription of the goods at issue in the light of the fact that those goods are pharmaceutical products (see judgment of 15 December 2010, Novartis v OHIM – Sanochemia Pharmazeutika (TOLPOSAN), T‑331/09, EU:T:2010:520, paragraph 26 and the case-law cited).
22      Next, it should be noted that the applicant itself states that the attention the general public pays to the relevant goods will be ‘closer … than they would to brands used for an everyday … article’ and that the level of attention of that public will be ‘relatively high’. Furthermore, although it disputes the Board of Appeal’s finding that medical professionals and end consumers display the same high level of attention by drawing a distinction between the ‘level of attention’ and the ‘quality of attention’, its argument cannot, however, succeed, since, irrespective of their training and professional activity, the average consumers of the goods concerned, which have in common the essential purpose of being marketed on the recommendation of or through a medical professional and have a direct impact on health, are reasonably well informed and reasonably observant and circumspect and have a high level of attention, whether they are members of the general public or professionals.
23      As regards the applicant’s argument that the level of attention is different as regards elderly people and children, it must be stated, first, that the description of the goods covered by the marks at issue does not show that they are intended exclusively for elderly people or children, with the result that it is not appropriate to define the relevant public as being limited to those end consumers alone. Secondly, the applicant does not put forward any specific argument capable of showing that the level of attention of elderly persons is lower than that of other consumers. As regards children, it is sufficient to note that, usually, it is adults who purchase pharmaceutical preparations for the needs of children, with the result that, in any event, it is the level of attention of adults that remains relevant.
24      Accordingly, the Board of Appeal did not err in finding that, in the present case, the level of attention of the relevant public was high.
Comparison of the marks at issue
25      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In 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 distinctive and dominant elements of the marks at issue
26      First, the applicant submits that the Board of Appeal erred in rejecting the argument that the letter groups ‘haler’, ‘lizer’ and ‘trev’ which appear respectively in the earlier marks BREEZHALER and BREZILIZER and in the mark applied for will be understood by the relevant public, and in particular by English-speaking medical professionals, as the respective abbreviations of ‘inhaler’, ‘nebulizer’ and ‘triple-therapy’. By contrast, it does not dispute that the earlier marks ONBREZ and DAYBREZ have no meaning for the whole of the relevant public. Secondly, it submits that the syllable ‘brez’ is the dominant element of the signs BREZILIZER and BREZTREV, since it is at the beginning of those signs. It also states that that element and the element ‘breez’ have ‘high distinctiveness’.
27      EUIPO and the intervener dispute those arguments.
28      Assessment of the similarity between two marks means more than taking just one component of a composite trade mark and comparing it with another mark. On the contrary, the comparison must be made by examining each of the marks in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited).
29      For the purpose of assessing the distinctive character of an element making up a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods from those of other undertakings. In making that assessment, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is at all descriptive of the goods or services for which the mark has been registered (judgments of 13 June 2006, Inex v OHIM – Wiseman (Representation of a cowhide), T‑153/03, EU:T:2006:157, paragraph 35, and of 13 December 2007, Cabrera Sánchez v OHIM – Industrias Cárnicas Valle (el charcutero artesano), T‑242/06, not published, EU:T:2007:391, paragraph 51).
30      As a preliminary point, it should be recalled that the earlier marks are each composed of a single word, namely the words ‘brezilizer’, ‘breezhaler’, ‘onbrez’ and ‘daybrez’. The same is true of the mark applied for, consisting of the single word ‘breztrev’.
31      In the present case, the Board of Appeal found, in paragraphs 46 and 47 of the contested decision, that the marks at issue did not consist of word elements having a meaning for the relevant public and that that public would not break them down. It follows that the Board of Appeal did not identify any distinctive or dominant element in those marks.
32      First, in paragraph 47 of the contested decision, the Board of Appeal stated that, as regards the earlier marks BREEZHALER, ONBREZ and DAYBREZ, it had not been argued that those marks had, in whole or in part, a meaning for the relevant public and that, itself not identifying any meaning, those marks had to be perceived as meaningless.
33      Secondly, in paragraph 35 of the contested decision, the Board of Appeal concluded, without being challenged by the applicant, that the earlier mark BREZILIZER and the mark applied for had no meaning for the non-English-speaking public.
34      Thirdly, the Board of Appeal reached the same conclusion as regards the English-speaking public. In that regard, it found, first, that the words constituting the marks at issue, taken as a whole, had no meaning for that public. Secondly, it pointed out that the group of letters ‘brez’ had no meaning for that public and that it was ‘far from obvious’ that the same public would associate the group of letters ‘lizer’ in the earlier mark BREZILIZER with the word ‘nebulizer’ and the group of letters ‘trev’ of the mark applied for with the word ‘triple-therapy’, as the applicant claimed. In addition, it stated that the existence and use of such abbreviations in English medical vocabulary had not been demonstrated by the applicant.
35      As observed by EUIPO, it must be noted that the applicant has not put forward any evidence to demonstrate the existence and use of the abbreviations at issue in the medical field. Furthermore, as is apparent from paragraph 41 of the contested decision, even assuming that part of the relevant public, namely, in the present case, medical professionals, might associate the groups of letters ‘lizer’ and ‘trev’ with the medical products referred to in paragraph 34 above, the fact remains that, first, the link between those groups of letters and the products concerned can be established only by passing through several stages of reasoning, with the result that it is neither direct nor specific, and, secondly, it does not prevent a significant part of the relevant public from not associating it with that concept (see, to that effect and by analogy, judgment of 27 January 2021, Olimp Laboratories v EUIPO – OmniVision (Hydrovision), T‑817/19, not published, EU:T:2021:41, paragraph 59). The same conclusion also applies to the alleged association between the group of letters ‘haler’ of the earlier mark BREEZHALER with the word ‘inhaler’.
36      In addition, nor did the Board of Appeal err in stating, in paragraph 43 of the contested decision, that the addition of the prefixes ‘brezi’ and ‘brez’ respectively to the elements ‘lizer’ and ‘trev’ moves the marks at issue even further away from the words ‘nebulizer’ and ‘triple-therapy’, thereby making the association with them even less obvious. Likewise, the addition of the prefix ‘breez’ to the group of letters ‘haler’ places even greater distance between the mark at issue and the word ‘inhaler’, thereby making the association with it even less obvious.
37      Furthermore, as regards the argument based on a decision of the UK Intellectual Property Office of 31 March 2021 to which the applicant refers, suffice it to recall that the EU trade mark regime is autonomous and that the legality of decisions of the Boards of Appeal is assessed solely on the basis of Regulation 2017/1001, with the result that EUIPO or, on appeal, the Courts of the European Union, are not required to reach the same conclusions as those arrived at by national authorities or courts in similar circumstances (see judgment of 15 December 2015, LTJ Diffusion v OHIM – ARTHUR et Aston (ARTHUR & ASTON), T‑83/14, EU:T:2015:974, paragraph 37 and the case-law cited).
38      Lastly, although the applicant maintains that the syllable ‘brez’ is the dominant element in the signs BREZTREV and BREZILIZER on the ground that, being situated at the beginning of that mark, it is immediately perceived by consumers and is more likely to attract their attention, it must be pointed out that the fact that an element is situated at the beginning of a mark cannot, even if that element is more likely than the elements which follow it to attract the relevant public’s attention, result in that term dominating the overall impression conveyed to that public by a trade mark for the purposes of the judgment of 12 June 2007, OHIM v Shaker (C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited) by virtue of that fact alone (see, to that effect, judgment of 7 October 2015, CBM v OHIM – Aeronautica Militare (Trecolore), T‑227/14, not published, EU:T:2015:760, paragraph 35). The applicant’s argument relating to the particular importance attached by the consumer to the beginning of a sign is therefore not conclusive and does not indicate, in any event, that that prefix must be regarded as the dominant element of the abovementioned marks.
39      The Board of Appeal was therefore right to find that the marks at issue were not composed of elements which have a meaning for the relevant public, whether English-speaking or not, and that, consequently, that public will not break them down. Therefore, that public will not identify the groups of letters ‘brez’ or ‘breez’ of those marks as their dominant element or their most distinctive element. Therefore, the Board of Appeal was right not to identify any dominant or distinctive element within those marks.
Visual similarity
40      In paragraphs 49 to 55 of the contested decision, the Board of Appeal found that there was a low degree of visual similarity between, on the one hand, the earlier marks BREEZHALER and BREZILIZER and, on the other hand, the mark applied for. It found that the similarity resulting from the coincidence between the letters ‘b’, ‘r’, ‘e’ and ‘z’ was significantly weakened by the differences between the signs, namely the fact that the mark applied for was much shorter than the earlier marks at issue and that those marks differed in their central elements and their endings.
41      In paragraphs 56 to 61 of the contested decision, the Board of Appeal found that the two earlier marks ONBREZ and DAYBREZ, on the one hand, and the mark applied for, on the other, were visually different in that the syllable ‘brez’, which is common to both marks, was not positioned in the same place within those marks and that that syllable was combined, for each of the three marks, with an additional syllable not present in the other marks.
42      First, as regards the earlier mark BREZILIZER and the mark applied for, the applicant submits that they are visually similar to an average degree because of the common element ‘brez’, placed at the beginning of the two signs, especially since the syllable ‘brez’ is unusual at the beginning of a trade mark for pharmaceutical preparations.
43      Secondly, as regards the earlier mark BREEZHALER and the mark applied for, the applicant submits that the relevant public will notice the first very similar part of the signs, which gives rise to ‘at least average’ visual similarity.
44      Thirdly, the applicant points out that the earlier marks ONBREZ and DAYBREZ and the mark applied for coincide in the majority of their letters, as the syllable ‘brez’ is present in both signs. It reiterates in that regard the argument that that syllable is unusual for pharmaceutical preparations and is therefore highly distinctive and immediately perceived by the relevant public.
45      As a preliminary point, it should be noted that the applicant’s arguments regarding the visual similarity of the marks at issue are based to a large extent on the premiss that the group of letters ‘brez’ of the trade marks BREZILIZER, ONBREZ, DAYBREZ and BREZTREV and the group of letters ‘breez’ of the mark BREEZHALER are particularly distinctive and dominant. As has been stated in paragraph 39 above, that premiss is incorrect. Therefore, the applicant’s arguments based on that premiss must be rejected.
46      Nor can the applicant’s other arguments succeed. First, as regards the comparison between the earlier mark BREZILIZER and the mark applied for, it must be pointed out, as did the Board of Appeal, that the marks coincide in their first four letters. However, their other letters are significantly different. Furthermore, those marks also differ in length, the earlier mark BREZILIZER being composed of 10 letters, whereas the mark applied for is composed of only 8.
47      Furthermore, while it is true, as the applicant submits, that it is apparent from the case-law that the public generally pays greater attention to the beginning of a mark than to the end (see judgment of 25 March 2009, L’Oréal v OHIM – Spa Monopole (SPA THERAPY), T‑109/07, EU:T:2009:81, paragraph 30 and the case-law cited), that consideration cannot hold good in all cases (judgment of 8 September 2021, Cara Therapeutics v EUIPO – Gebro Holding (KORSUVA), T‑584/20, not published, EU:T:2021:541, paragraph 29). Furthermore, it cannot, in any event, call into question the principle that the assessment of the similarity of marks must take account of the overall impression produced by those marks, since the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details (see judgment of 13 July 2017, Migros-Genossenschafts-Bund v EUIPO – Luigi Lavazza (CReMESPRESSO), T‑189/16, not published, EU:T:2017:488, paragraph 48 and the case-law cited). In the present case, the relevant public will not necessarily pay greater attention to the beginning of the marks at issue than to their middle or end. As stated in paragraphs 30 and 39 above, the marks at issue consist of a single word which the average consumer will perceive as a whole.
48      Accordingly, the Board of Appeal did not err in finding that the similarity resulting from the coincidence of the syllable ‘brez’ between the earlier mark BREZILIZER and the mark applied for was significantly attenuated by the differences between them, even though that syllable is situated at the beginning of those marks.
49      Secondly, as regards the comparison between the earlier mark BREEZHALER and the mark applied for, findings similar to those set out in paragraphs 46 to 48 above must be made particularly since the first syllable ‘breez’ of that mark is not identical to the first syllable ‘brez’ of the mark applied for, which constitutes an additional visual difference.
50      Accordingly, nor did the Board of Appeal err in finding that there was a low degree of visual similarity between the earlier mark BREEZHALER and the mark applied for.
51      Thirdly, as regards the visual comparison between the earlier marks ONBREZ and DAYBREZ and the mark applied for, the Board of Appeal was right to find that they shared the letter sequence ‘brez’ but that it was placed at the end of the earlier marks ONBREZ and DAYBREZ and at the beginning of the mark applied for. In that regard, as stated in the contested decision, it follows from the case-law that the mere inversion of very similar elements in the signs at issue, which do not have a distinct and comprehensible meaning for the relevant public, makes it possible to create a visual difference between them (judgment of 12 November 2014, Volvo Trademark v OHIM – Hebei Aulion Heavy Industries (LOVOL), T‑524/11, EU:T:2014:944, paragraphs 31 to 38).
52      Consequently, nor did the Board of Appeal err in finding that there was no visual similarity between the earlier marks ONBREZ and DAYBREZ, on the one hand, and the mark applied for, on the other.
Phonetic similarity
53      In paragraphs 62 to 65 of the contested decision, the Board of Appeal found that there was a low degree of phonetic similarity between the earlier mark BREEZHALER and the mark applied for, and between the earlier mark BREZILIZER and the mark applied for. It noted that those marks had in common the pronunciation of the letters ‘b’, ‘r’, ‘e’ and ‘z’, but differed in length, structure, intonation and pronunciation between the earlier marks and the mark applied for.
54      In paragraphs 66 to 69 of the contested decision, relying, in essence, on considerations similar to those set out in paragraph 41 above, the Board of Appeal found that the earlier marks ONBREZ and DAYBREZ and the mark applied for were ‘similar to a very low degree, at most’.
55      First, as regards the comparison between the earlier mark BREZILIZER and the mark applied for, the applicant submits that the visual similarities which it has pointed out, and which were referred to in paragraph 42 above, are reflected in the phonetic comparison of those signs. In that regard, it adds that, in the pronunciation of those signs, the emphasis will be placed on the first identical syllable ‘brez’. Therefore, the degree of phonetic similarity between those signs is ‘at least … average’.
56      Secondly, as regards the comparison between the earlier mark BREEZHALER and the mark applied for, the applicant relies, in essence, on the same arguments as those referred to in paragraph 42 above with regard to the visual comparison. It agrees with the Board of Appeal that the first syllable of the word ‘breezhaler’ is pronounced, at least in some parts of the European Union, in the same way as the first syllable of the word ‘breztrev’. It concludes, however, that there is an average degree of phonetic similarity between those signs.
57      Thirdly, as regards the comparison between the earlier marks ONBREZ and DAYBREZ and the mark applied for, the applicant submits that the visual similarities are reflected in the phonetic comparison and that, in the pronunciation of those signs, the emphasis will be placed on the common syllable ‘brez’. It therefore concludes that those signs are phonetically similar.
58      Like its arguments relating to the visual comparison of the marks at issue, most of the applicant’s arguments relating to the phonetic comparison of those marks are based on the premiss that the syllable ‘brez’ of the marks BREZILIZER, ONBREZ, DAYBREZ and BREZTREV and the syllable ‘breez’ of the mark BREEZHALER are their dominant and distinctive elements. As has been pointed out in paragraph 45 above, such arguments must be rejected.
59      Nor can the applicant’s other arguments succeed. First, as regards the phonetic comparison between the earlier mark BREZILIZER and the mark applied for, it must be pointed out, as did the Board of Appeal, that they have in common the pronunciation of their first syllable ‘brez’. However, the signs differ significantly in length and structure, the earlier mark being pronounced as four syllables whereas the mark applied for consists of only two. Furthermore, their central elements and their respective endings have nothing in common in that, in the mark applied for, the syllable ‘trev’ is very different from the three syllables ‘i’, ‘li’ and ‘zer’ of the earlier mark.
60      Furthermore, for the same reasons as those set out in paragraph 47 above, it must be held that the similarity in pronunciation of the syllable ‘brez’ is significantly attenuated by the phonetic differences between the earlier mark BREZILIZER and the mark applied for which were found in paragraph 59 above, even though that syllable is situated at the beginning of those marks.
61      Thus, despite the fact that the earlier mark BREZILIZER and the mark applied for coincide in their first syllable, the Board of Appeal did not err in finding that those marks were phonetically similar only to a low degree.
62      Secondly, as regards the phonetic comparison between the earlier mark BREEZHALER and the mark applied for, findings similar to those set out in paragraphs 59 to 61 above must be made.
63      Therefore, nor did the Board of Appeal err in finding that there was a low degree of phonetic similarity between the earlier mark BREEZHALER and the mark applied for.
64      Thirdly, as regards the phonetic comparison between the earlier marks ONBREZ and DAYBREZ and the mark applied for, the Board of Appeal correctly observed that they shared the syllable ‘brez’, pronounced identically in each of them, but that those syllables differed, respectively, in the sound of the additional syllables ‘on’, ‘day’ and ‘trev’. Furthermore, as stated in the contested decision, the syllables of the marks at issue are pronounced in a totally different order, namely ‘brez’ after ‘on’ and ‘day’ and ‘trev’ after ‘brez’. Furthermore, contrary to what the applicant claims, it is not at all certain that the emphasis will be placed on the syllable ‘brez’, in particular in respect of those earlier marks.
65      Consequently, nor did the Board of Appeal err in finding that there was no phonetic similarity or, at most, a low degree of phonetic similarity between the earlier marks ONBREZ and DAYBREZ, on the one hand, and the mark applied for, on the other.
Conceptual similarity
66      As regards conceptual similarity, neither of the marks at issue has any meaning for the relevant public. Therefore, the conceptual comparison of the signs must be considered impossible (judgment of 8 July 2020, FF Group Romania v EUIPO – KiK Textilien und Non-Food (‚kix), T‑659/19, not published, EU:T:2020:328, paragraph 84), as the Board of Appeal rightly pointed out.
The distinctiveness of the earlier marks
67      In paragraphs 74 to 82 of the contested decision, the Board of Appeal examined the distinctive character of the earlier marks. As regards the mark ONBREZ, it noted that the applicant had raised for the first time before it the claim of enhanced distinctiveness and therefore declared that claim to be inadmissible. Since no claim of enhanced distinctiveness had been made before it in respect of the other earlier marks, it stated that it would base its assessment on their inherent distinctiveness, which it considered to be normal given that those marks had no meaning.
68      The applicant does not dispute those findings.
Global assessment of the likelihood of confusion
69      In paragraphs 83 to 89 of the contested decision, the Board of Appeal concluded that there was no likelihood of confusion in view of the identity of the goods concerned, the normal distinctiveness of the earlier marks, the high level of attention of the relevant public, the low degree of visual and phonetic similarity between the earlier marks BREEZHALER and BREZILIZER, on the one hand, and the mark applied for, on the other hand, the lack of visual similarity and the low degree of phonetic similarity between the marks ONBREZ and DAYBREZ, on the one hand, and the mark applied for, on the other hand, and the fact that a conceptual comparison between the signs is not possible.
70      The applicant submits that the Board of Appeal did not take sufficient account of the fact that the group of letters ‘brez’, appearing identically in the mark applied for and the earlier marks BREZILIZER and ONBREZ, could lead the relevant public to consider that the mark applied for forms part of a single group of marks, designating the applicant’s goods. It thus submits that it is common for pharmaceutical products to use a single distinctive element in several combinations to form a group of products linked by their general area of therapy. It also reproduces the findings summarised in paragraphs 26, 42 to 44 and 55 to 57 above regarding the distinctive and dominant elements of the marks at issue and the similarity of those marks in order to conclude that there is a likelihood of confusion.
71      EUIPO and the intervener dispute the applicant’s arguments.
72      First of all, it should be borne in mind that a global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17, and of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 74).
73      Nonetheless, the application of the principle of interdependence is not intended to apply mechanically. Thus, while it is true that, by virtue of the principle of interdependence, a lesser degree of similarity between the goods or services covered may be offset by a greater degree of similarity between the marks, conversely, there is nothing to prevent a finding that, in view of the circumstances of a particular case, there is no likelihood of confusion, even where identical goods are involved and there is a weak degree of similarity between the marks at issue (see judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraphs 95 and 96 and the case-law cited).
74      In that regard, first, although the goods at issue are identical, as regards the similarity of the marks at issue, as stated in paragraphs 48, 50, 52, 61, 63, 65 and 66 above, the Board of Appeal did not err in finding that the earlier marks BREEZHALER and BREZILIZER had a low degree of visual and phonetic similarity with the mark applied for, the earlier marks ONBREZ and DAYBREZ, on the one hand, and the mark applied for, on the other hand, were visually dissimilar, they were ‘similar to a very low degree, at most’ phonetically and a conceptual comparison between the marks at issue was not possible.
75      Secondly, as stated in paragraph 66 above, the distinctive character of the earlier marks must be regarded as normal.
76      Thirdly, as noted in paragraphs 21 to 24 above, the relevant public, composed of both medical professionals and the general public, will display a high level of attention. That factor is particularly important in the present case. According to the case-law, as regards pharmaceutical products which affect consumers’ state of health, consumers are less likely to confuse different versions of those products (see judgment of 21 October 2008, Aventis Pharma v OHIM – Nycomed (PRAZOL), T‑95/07, not published, EU:T:2008:455, paragraph 29 and the case-law cited).
77      Furthermore, it is common for the trade marks for pharmaceutical products to be long and complex and therefore difficult to remember for the general public. Therefore, in the present case, owing to the impact of the choice of the product on health, the general public will pay great attention to the trade mark displayed on the products and will make a particular effort to ensure that it purchases the correct product. Furthermore, those goods are most often purchased in pharmacies, potentially on the advice of a professional. Thus, the relevant public, even if it is not professional, will not attribute the same commercial origin to goods bearing trade marks which have a low degree of visual and phonetic similarity and have no conceptual meaning, such as in the present case.
78      Thus, in the light of all the above factors, the Board of Appeal was entitled to conclude, without erring, that any likelihood of confusion was excluded.
79      That conclusion is not called into question by the applicant’s argument that there is a likelihood that the consumer will establish a link between the marks at issue in that he or she might think that the mark applied for is part of a single group of marks designating goods manufactured by the applicant on account of the common element ‘brez’. In that regard, as EUIPO points out, it should be noted that that argument, although not clearly stated or particularly developed, presupposes the existence of a family of marks.
80      However, the applicant has not demonstrated the existence of such a family of marks.
81      In that regard, first of all, it must be borne in mind that, when the opposition to an EU trade mark application is based on several earlier marks and those marks display characteristics which give grounds for regarding them as forming part of a single ‘series’ or ‘family’, which may be the case, inter alia, either when they reproduce in full a single distinctive element with the addition of a graphic or word element differentiating them from one another, or when they are characterised by the repetition of a single prefix or suffix taken from an original mark, such a circumstance constitutes a relevant factor for the purpose of assessing whether there is a likelihood of confusion (judgment of 23 February 2006, Il Ponte Finanziaria v OHIM – Marine Enterprise Projects (BAINBRIDGE), T‑194/03, EU:T:2006:65, paragraph 123).
82      However, a likelihood of association between the mark applied for and the marks of that ‘series’ or ‘family’ of earlier marks can be invoked only if two cumulative conditions are satisfied. First, the proprietor of a series of earlier registrations must furnish proof of use of all the marks belonging to the series or, at the very least, of a number of marks capable of constituting a ‘series’. For there to be a likelihood of the public’s being mistaken as to whether the trade mark applied for belongs to the series, the earlier marks forming part of that series must necessarily be present on the market. Since taking into account the serial nature of the earlier marks would entail widening the scope of protection of the trade marks forming part of the series, considered individually, any assessment in the abstract of the likelihood of confusion, based solely on the existence of several registrations covering marks reproducing, as in this case, the same distinctive element, and in the absence of any actual use of the marks, must be regarded as excluded. Consequently, failing proof of such use, any likelihood of confusion entailed by the appearance on the market of the trade mark applied for will have to be assessed by comparing each of the earlier marks, taken individually, with the trade mark applied for (judgment of 23 February 2006, BAINBRIDGE, T‑194/03, EU:T:2006:65, paragraph 126).
83      Secondly, the trade mark applied for must not only be similar to the marks belonging to the series, but also display characteristics capable of associating it with the series. That could not be the case where, for example, the element common to the earlier serial marks is used in the trade mark applied for either in a different position from that in which it usually appears in the marks belonging to the series or with a different semantic content (judgment of 23 February 2006, BAINBRIDGE, T‑194/03, EU:T:2006:65, paragraph 127).
84      In the present case, first, as the intervener maintains, and contrary to what is submitted by the applicant, the earlier marks relied on in support of the opposition do not share the same sequence of letters at the beginning of those marks. Their first syllable is either ‘brez’, ‘breez’, ‘on’ or ‘day’. In addition, the syllable ‘brez’ in some of those marks is situated either at the beginning or at the end of those marks. Therefore, the applicant has not shown that the earlier marks that it invokes belong to a ‘family of marks’. Secondly, as EUIPO points out, the applicant has not adduced, in the present case, any evidence of use of the earlier marks in support of its claims relating to a possible family of marks. Thus, the applicant cannot reasonably maintain that the mark applied for might be perceived as belonging to a family of marks.
85      Accordingly, the single plea in law must be rejected and, consequently, the action must be dismissed in its entirety.
Costs
86      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. 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 (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Novartis AG to pay the costs.
Kornezov
De Baere
Kingston
Delivered in open court in Luxembourg on 15 March 2023.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.