JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
15 April 2026 (*)
( EU trade mark – Opposition proceedings – Application for the EU word mark LEONHART – Earlier national figurative mark EL LEON – Relative ground for refusal – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑461/25,
Instanta sp. z o.o., established in Żory (Poland), represented by P. Gutowski, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Lobotková and R. Raponi, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Heineken España, SA, established in Seville (Spain),
THE GENERAL COURT (Eighth Chamber),
composed of I. Gâlea, President, M.J. Costeira (Rapporteur) and B. Ricziová, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, Instanta sp. z o.o., seeks, in essence, the annulment and alteration of the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 May 2025 (Case R 2434/2024-4) (‘the contested decision’).
I.      Background to the dispute
2        On 26 July 2023, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign LEONHART.
3        The mark applied for covered goods in Classes 30 and 32 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.
4        On 19 September 2023, Heineken España, SA, 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 Spanish figurative mark reproduced below, covering, inter alia, goods in Class 32:
6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        On 4 November 2024, the Opposition Division upheld the opposition.
8        On 18 December 2024, the applicant filed a notice of appeal with EUIPO against the Opposition Division’s decision.
9        By the contested decision, the Board of Appeal dismissed the appeal. First of all, it endorsed the Opposition Division’s assessment that the relevant public consisted of the general public and the professional public with an average level of attention and found that the relevant territory was that of Spain. Next, it upheld the Opposition Division’s assessment that the goods covered by the mark applied for were identical or similar to an average degree to the goods covered by the earlier mark. In addition, the Board of Appeal found that the signs at issue were visually, phonetically and conceptually similar to an average degree. Furthermore, the Board of Appeal found that the earlier mark had a normal degree of inherent distinctiveness. Lastly, it found that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
II.    Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision and reject the opposition;
–        order EUIPO and Heineken España to pay the costs, including those incurred in the proceedings before the Opposition Division and before the Board of Appeal.
11      EUIPO contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs in the event that a hearing is convened.
III. Law
A.      The application for annulment
1.      Admissibility of the applicant’s argument relating to the meaning of the element ‘hart’ and of the evidence submitted for the first time before the Court
12      The applicant submits that the element ‘hart’ in the mark applied for is likely to evoke, on the part of the relevant public, the word ‘harto’, which in Spanish means ‘fed up’, ‘tired’ or ‘having had enough’, and submits, in support of that argument, Annex A4, which consists of an extract from a dictionary containing the definition of that word.
13      EUIPO contends that that argument was not put forward during the administrative procedure and that it must be declared inadmissible.
14      In that regard, it must be borne in mind that, under Article 188 of the Rules of Procedure of the General Court, the pleadings of the parties cannot change the subject matter of the proceedings before the Board of Appeal. In addition, it is for the Court, in the context of an action brought before it under Article 72(2) of Regulation 2017/1001, to review the legality of the decision of the Board of Appeal. Consequently, the Court’s review cannot go beyond the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 19 November 2025, Aboca v EUIPO – Azienda Agroalimentare Grignano (ABOCA), T‑543/24, not published, EU:T:2025:1046, paragraph 74 and the case-law cited).
15      In the present case, it must be noted that, before the Board of Appeal, the applicant did not put forward the argument that the element ‘hart’ in the mark applied for was likely to evoke, on the part of the relevant public, the word ‘harto’, nor, a fortiori, did it submit any evidence in that regard.
16      Accordingly, that argument and Annex A4 to the application must be declared inadmissible.
2.      Substance
17      In support of its application for annulment, the applicant relies on a single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001.
18      It primarily calls into question the Board of Appeal’s assessments relating to the similarity of the signs at issue and the existence of a likelihood of confusion.
19      EUIPO disputes the applicant’s arguments. It submits, in essence, that the Board of Appeal was right in finding that there was, first, an average degree of visual, phonetic and conceptual similarity between the signs at issue and, second, a likelihood of confusion.
20      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
21      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited).
22      For the purpose of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
23      Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods in question in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment of 14 December 2006, Mast-Jägermeister v OHIM – Licorera Zacapaneca (VENADO with frame and others), T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397, paragraph 76 and the case-law cited).
24      It is in the light of those considerations that it must, in the present case, be examined whether the Board of Appeal was right in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
(a)    The relevant public and territory
25      In paragraphs 23 to 25 of the contested decision, the Board of Appeal endorsed the Opposition Division’s assessment that the relevant public consisted of the general public and the professional public with specific professional knowledge or expertise displaying an average level of attention. In addition, in paragraph 26 of that decision, it found that the relevant territory was that of Spain.
26      There is no need to call those assessments into question which, moreover, have not been disputed by the applicant.
(b)    The comparison of the goods
27      In paragraphs 27 to 29 of the contested decision, the Board of Appeal endorsed the Opposition Division’s findings that the goods covered by the mark applied for were either identical or similar to an average degree to the goods covered by the earlier mark.
28      There is no need to call those assessments into question which, moreover, have not been disputed by the applicant.
(c)    The comparison of the signs
29      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
30      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). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, Nestlé v OHIM, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).
31      It is therefore necessary, before comparing the signs at issue visually, phonetically and conceptually, to examine their distinctive and dominant elements.
(1)    The distinctive and dominant elements of the signs at issue
32      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 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).
33      As regards the assessment of whether one or more given components of a composite trade mark is dominant, account must be taken, in particular, of the intrinsic qualities of each of those components by comparing them with those of other components. In addition and accessorily, account may be taken of the relative position of the various components within the arrangement of the composite mark (judgment of 23 October 2002, Matratzen Concord v OHIM – Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 35).
34      In the present case, as regards the earlier sign, the Board of Appeal found, in paragraphs 35, 36 and 40 of the contested decision, that it consisted of the Spanish word elements ‘el’ and ‘leon’ and that it contained a subtle stylisation. It found that the word element ‘el’ was a definite article in Spanish, the equivalent of ‘the’ in English, and that, as such, in so far as it merely indicates the gender and number of the noun it precedes, it had a weak distinctive character. It found that the word element ‘leon’, which means ‘lion’ in Spanish, had no connection with the ‘relevant goods’ and had an average degree of distinctiveness. According to the Board of Appeal, the presence of the element ‘el’ at the beginning of the earlier sign did not prevent the relevant public from perceiving the element in common ‘leon’.
35      As regards the sign applied for, the Board of Appeal found, in paragraphs 37 to 39 of the contested decision, that it consisted of the word element ‘leonhart’. It found that the relevant public was likely to break down that sign into the word elements ‘leon’ and ‘hart’. It noted that the assessments concerning the word element ‘leon’ in paragraph 34 above were valid for the sign applied for. It found that the word element ‘hart’, of German origin and with no equivalent in Spanish, had no meaning for the relevant public and therefore had distinctive character. The Board of Appeal recalled that, according to the case-law, consumers tend to shorten the signs and refer to the part that is easier to pronounce and remember.
36      The applicant submits, in essence, that the stylisation of the earlier sign has distinctive character. In addition, it criticises the Board of Appeal for failing to have regard to the significance of the element ‘hart’ in the sign applied for. Furthermore, it submits that the word element ‘leon’ has a weak distinctive character on account of its use in the sector of the goods at issue.
37      EUIPO disputes the applicant’s arguments. It submits, in essence, that the earlier sign is represented in a subtle stylisation, in which the word elements are easily recognisable and identifiable. Furthermore, it maintains that the relevant public will break down the sign applied for into the elements ‘leon’, which means ‘lion’, and ‘hart’, which has no meaning for the Spanish public, and that the element ‘leon’ occupies a prominent and eye-catching position. In response to the applicant’s arguments relating to the weak distinctive character of the element ‘leon’, EUIPO submits that that word does not convey any meaning in relation to the goods in Classes 30 and 32 and that its use in the names of establishments in the hotel and restaurant sector does not show that it is used as a trade mark for those goods. In any event, it maintains that the applicant has not shown that consumers were exposed to that word as a trade mark for such goods.
38      In the present case, the signs to be compared are, on the one hand, the word sign applied for LEONHART and, on the other hand, the earlier figurative sign reproduced below:
39      In the first place, as regards the earlier sign, it should be noted that the Board of Appeal was right in finding, without being challenged by the applicant, that that sign consisted of the definite article in Spanish ‘el’ (‘the’ in English) and the Spanish word ‘leon’ (‘lion’ in English) which refers to a feline.
40      As regards the word element ‘el’, the Board of Appeal also did not make an error of assessment in finding that, as a definite article, that element would have a lesser impact on the perception of the relevant public, which, moreover, the applicant does not dispute.
41      According to the case-law, definite articles which merely introduce a noun and do not form a particular logical and conceptual unit are of less importance in the assessment of the similarity of two marks (see judgment of 24 June 2014, Hut.com v OHIM – Intersport France (THE HUT), T‑330/12, not published, EU:T:2014:569, paragraph 43 and the case-law cited).
42      As regards the word element ‘leon’, in the light of the case-law cited in paragraph 32 above, the Board of Appeal’s assessment that that element has an average degree of distinctiveness is not vitiated by an error of assessment. The word ‘leon’ has no connection with the goods in Class 32 covered by the earlier mark.
43      In so far as the applicant claims that that element has a weak distinctive character on account of its use in the beverages sector, it must be observed that, during the administrative procedure, the applicant produced a list of trade marks and retail establishments containing the word ‘leon’.
44      However, it must be stated, first, that demonstrating the existence of a number of registered marks does not mean that those marks are actually used for goods or services and, second, that the limited number of establishments whose trade name includes the word ‘leon’ is not capable of demonstrating the alleged weak distinctive character of that element in relation to the goods and services at issue.
45      As regards the figurative element of the earlier sign, namely the font in which the words ‘el’ and ‘leon’ are represented, it should be noted that, as the applicant claims, it does not correspond to a standard font style. However, it must be stated, as observed by EUIPO, that those words remain clearly recognisable, with the result that the figurative element will be perceived by the relevant public as decorative and that it has only a weak distinctive character.
46      Therefore, it must be held that, in accordance with the case-law cited in paragraph 30 above, the word elements making up the earlier mark dominate the overall impression created by that mark, without, however, the figurative element being negligible.
47      In the second place, as regards the sign applied for, contrary to the assessment in paragraph 48 of the contested decision, it cannot be ruled out that that sign may be perceived by the relevant public as a first name or surname.
48      Admittedly, as EUIPO submits, according to the case-law, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, that consumer will break it down into elements which, for him or her, have a concrete meaning or which resemble words known to him or her (see judgment of 20 September 2017, Jordi Nogues v EUIPO – Grupo Osborne (BADTORO), T‑350/13, EU:T:2017:633, paragraph 35 and the case-law cited).
49      However, as the applicant submits, that will not be the case here. In accordance with the case-law, where words in a foreign language have an equivalent in the language of the relevant public and where a link may be established by that public between those words and their translation into the language concerned, then that public must be held to understand their meaning (see, to that effect and by analogy, judgment of 15 September 2021, Celler Lagravera v EUIPO – Cyclic Beer Farm (Cíclic), T‑673/20, not published, EU:T:2021:591, paragraph 46 and the case-law cited).
50      It is apparent from the evidence submitted by the applicant before EUIPO, in support of the claims that ‘leonhart’ will be understood by the relevant public as a first name or surname, that Leonhart is a derivative of Leonard which has several spelling variants and which may evoke, on the part of the relevant public, a well-known male first name, which, with slight differences, exists in several languages, including Spanish. The spelling variations will not have a decisive impact on the ability of the relevant public to recognise the word ‘leonhart’ as a first name or surname, particularly in view of the fact that EU consumers are accustomed to seeing and recognising words of foreign origin in EU trade marks (see, to that effect and by analogy, judgment of 8 July 2009, Laboratorios Del Dr. Esteve v OHIM – Ester C (ESTER-E), T‑230/07, not published, EU:T:2009:252, paragraph 54).
51      As such, the word ‘leonhart’ does not contain any element capable of being regarded as more distinctive or dominant than others and has, as a whole, an average degree of distinctiveness. In the light of the case-law cited in paragraph 32 above, that word has no connection with the goods in Classes 30 and 32 covered by the mark applied for.
52      It is appropriate to examine, taking into account the foregoing considerations, whether the visual, phonetic and conceptual comparison of the signs at issue carried out by the Board of Appeal is vitiated by errors of assessment.
(2)    The visual, phonetic and conceptual comparison of the signs at issue
(i)    The visual comparison of the signs at issue
53      In paragraphs 42 to 44 of the contested decision, the Board of Appeal noted that the signs at issue coincided in the word element ‘leon’ and differed in the element ‘el’ making up the earlier sign, which had a lesser impact, and in the word element ‘hart’ comprising the sign applied for, which was distinctive and placed at the end of that sign. It added that the stylisation of the earlier sign was basic and minimal and played only a decorative role, with the result that it was not capable of eliminating the visual similarity created by the element in common ‘leon’, which occupied an eye-catching position in both signs and was also their ‘most distinctive’ element. It concluded that there was an average degree of visual similarity between the signs at issue.
54      The applicant submits, in essence, that the stylisation of the earlier sign and the element ‘hart’ in the sign applied for play an important role in the overall impression created by those signs.
55      EUIPO disputes the applicant’s arguments. It maintains, in essence, that the Board of Appeal was right in finding that there was an average degree of visual similarity.
56      According to settled case-law, where a figurative mark containing word elements is compared visually with a word mark, the marks are considered to be visually similar if they have in common a significant number of letters in the same position and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different type fonts, in italics or bold, in lower case or upper case, or in colour (see judgment of 11 October 2023, Dr. Rudolf Liebe Nachfolger v EUIPO – BIT Beauty (ayuna LESS IS BEAUTY), T‑490/22, not published, EU:T:2023:616, paragraph 51 and the case-law cited).
57      In the present case, it should be noted that the sign applied for consists of eight letters, namely the letters ‘l’, ‘e’, ‘o’, ‘n’, ‘h’, ‘a’, ‘r’ and ‘t’, and the earlier sign of six, namely the letters ‘e’, ‘l’, ‘l’, ‘e’, ‘o’ and ‘n’. Thus, the signs at issue have four letters in common in the same order, namely the letters ‘l’, ‘e’, ‘o’ and ‘n’.
58      However, it must be stated that the signs at issue differ in the presence of the element ‘el’ at the beginning of the earlier sign, in the stylisation of that sign and in the element ‘hart’ placed at the end of the sign applied for. Furthermore, the element ‘hart’ represents half of the sign applied for. Moreover, the letters in common are not located in the same place in both signs. Those factors reduce the visual similarity between the signs at issue arising from the fact that they share four letters in the same order.
59      In so far as EUIPO submits, in essence, that the consumer will pay greater attention to the word ‘leon’ in that it is placed at the beginning of the sign applied for, it must be borne in mind that, according to the case-law, the consideration that the consumer generally pays greater attention to the beginning of a sign than to its end cannot hold in all cases and does not, in any event, cast doubt on the principle that the assessment of the similarity of marks must take into account the overall impression created by those marks, since the average consumer normally perceives a trade mark as a whole and does not proceed to analyse its various details (see, to that effect, judgments of 10 October 2006, Armacell v OHIM – nmc (ARMAFOAM), T‑172/05, EU:T:2006:300, paragraph 65 and the case-law cited, and of 27 February 2014, Advance Magazine Publishers v OHIM – Nanso Group (TEEN VOGUE), T‑509/12, EU:T:2014:89, paragraph 40 and the case-law cited).
60      Therefore, contrary to the assessment in paragraph 44 of the contested decision, the visual similarity of the signs at issue must be classified as low.
61      It follows that the Board of Appeal made an error of assessment in finding that there was an average degree of visual similarity.
62      However, such an error of assessment would justify the annulment of the contested decision only in so far as it would have any bearing on the outcome of the dispute. Thus, the impact of that error will be assessed in the global assessment of the likelihood of confusion.
(ii) The phonetic comparison of the signs at issue
63      In paragraphs 45 and 46 of the contested decision, the Board of Appeal found that the signs at issue coincided in the pronunciation of two syllables, namely ‘le’ and ‘on’, but differed in the pronunciation of the article ‘el’, which had a lesser impact, and that of the word ‘hart’, placed at the end of the sign applied for. It noted that the differences between the signs at issue were not such as to counteract the identical pronunciation of the word ‘leon’ within them and concluded that there was an average degree of phonetic similarity.
64      The applicant submits that the earlier sign consists of three syllables, that there is a pause between the first and second syllables and that the emphasis is placed on the last syllable. It argues that the sign applied for, also composed of three syllables, has no pause, as the sound ‘h’ does not exist in Spanish and is generally silent. Thus, it claims that the signs at issue have only a low degree of phonetic similarity.
65      EUIPO disputes the applicant’s arguments. It submits that the relevant public will pronounce the element ‘leon’, which is common to the signs at issue, in the same way. It submits that the element ‘el’ of which the earlier sign consists has only a limited impact on the phonetic impression produced by that sign and that the relevant public will focus on the element ‘leon’, on which it will place emphasis. It notes that the overall impression created by the sign applied for is dominated by the word ‘leon’, and that the addition of a weak or unfamiliar syllable at the end of that sign does not sufficiently differentiate the signs at issue phonetically.
66      In the present case, it must be noted that the signs at issue share two syllables which are pronounced identically, namely ‘le’ and ‘on’.
67      However, those signs differ in the syllable ‘el’, present in the first part of the earlier sign, and in the element ‘hart’, at the end of the sign applied for. The pronunciation of the earlier sign therefore begins with the sound produced by the syllable ‘el’, whereas the sign applied for begins with the sound produced by the syllable ‘le’. Moreover, as the applicant submits, the signs at issue do not have the same rhythm, namely ‘el-le-on’ for the earlier sign and ‘le-on-art’ for the sign applied for, since the letter ‘h’ is silent in Spanish. Thus, in the context of an overall phonetic assessment, the additional elements of the signs at issue introduce significant differences in pronunciation.
68      Therefore, contrary to the assessment in paragraph 46 of the contested decision, the phonetic similarity of the signs at issue must be classified as low.
69      It follows that the Board of Appeal made an error of assessment in finding that there was an average degree of phonetic similarity.
70      However, such an error of assessment would justify the annulment of the contested decision only in so far as it would have any bearing on the outcome of the dispute. Thus, the impact of that error will be assessed in the overall assessment of the likelihood of confusion.
(iii) The conceptual comparison of the signs at issue
71      In paragraphs 47 to 50 of the contested decision, the Board of Appeal endorsed the Opposition Division’s findings that the signs at issue evoked the concept of a lion. It noted that the element ‘hart’ in the sign applied for, of German origin, had no equivalent in Spanish. In addition, it found that it was unlikely that the relevant public would associate the term ‘leonhart’ making up the sign applied for with a first name or a surname. The Board of Appeal found, contrary to the Opposition Division, which had concluded that there was a high degree of conceptual similarity, that the signs at issue were conceptually similar to an average degree.
72      The applicant submits that the relevant public will understand the earlier sign as referring to the concept of a lion. By contrast, it submits that that public will perceive the sign applied for as a whole with distinctive character, devoid of any conceptual content or, failing that, as a first name or surname. The applicant adds that, even if the sign applied for could give rise, on the part of the relevant public, to an association with the concept of a lion because of the presence of the element ‘leon’, the element ‘hart’ neutralises or transforms that association. The applicant submits, in essence, that the signs at issue are conceptually different.
73      EUIPO disputes the applicant’s arguments. It maintains that, within the sign applied for, only the word ‘leon’ conveys a clear meaning for the relevant public, since the word ‘hart’, of German origin, has no equivalent in Spanish. It takes the view that, because of the presence of the element ‘leon’, which is common to the marks at issue, those marks are, in accordance with the case-law, conceptually similar.
74      In the present case, it should be noted that it is common ground between the parties that the earlier sign will be understood by the relevant public as evoking the concept of a lion.
75      As regards the sign applied for, for the reasons set out in paragraph 50 above, it will be understood by the relevant public as a first name or surname. Thus, irrespective of whether a surname or a first name conveys a concept, it must be held, as the applicant submits, that the relevant public is not likely to perceive the mark applied for as a reference to the lion.
76      Therefore, contrary to the assessment in paragraph 50 of the contested decision, the signs at issue are conceptually different.
77      It follows that the Board of Appeal made an error of assessment in finding that there was an average degree of conceptual similarity.
78      However, such an error of assessment would justify the annulment of the contested decision only in so far as it would have any bearing on the outcome of the dispute. Thus, the impact of that error will be assessed in the overall assessment of the likelihood of confusion.
(d)    The distinctive character of the earlier mark
79      In paragraph 53 of the contested decision, the Board of Appeal noted that Heineken España had not claimed enhanced distinctiveness of the earlier mark and based its analysis on the inherent distinctiveness of that mark, which it considered to be normal.
80      In the light of the reasons set out in paragraphs 42 to 44 above, there is no need to call into question those assessments, which, moreover, are not disputed by the applicant.
(e)    The likelihood of confusion
81      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 signs 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 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 19).
82      Thus, in particular, 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, to that effect, judgment of 27 June 2019, Sandrone v EUIPO – J. García Carrión (Luciano Sandrone), T‑268/18, EU:T:2019:452, paragraph 96 and the case-law cited).
83      Furthermore, in accordance with the case-law, the global assessment of the likelihood of confusion implies that the conceptual differences between the signs at issue can counteract phonetic and visual similarities between those two signs, provided that at least one of them has a clear and specific meaning for the relevant public so that that public is capable of grasping it immediately (see judgment of 4 March 2020, EUIPO v
Equivalenza Manufactory, C‑328/18 P, EU:C:2020:156, paragraph 74 and the case-law cited).
84      In paragraphs 54 to 62 of the contested decision, the Board of Appeal found that, in view of the identity or similarity of the goods at issue, the average degree of visual, phonetic and conceptual similarity between the signs at issue and the average level of attention of the relevant public, there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
85      The Board of Appeal added, in essence, first, that the applicant had not succeeded in demonstrating that consumers were accustomed to the use of the word ‘leon’ for the ‘relevant goods’ on the Spanish market and, second, that the previous cases referred to by the applicant were not comparable to the present case.
86      The applicant submits that the Board of Appeal made errors of assessment by failing to take into account the figurative element of the earlier mark, the significance of the element ‘hart’ within the mark applied for and the coexistence on the market of marks containing the element ‘leon’ covering the goods at issue.
87      EUIPO disputes the applicant’s arguments. It submits that the applicant merely reiterates its arguments, with the result that they must also be rejected in the context of the global assessment of the likelihood of confusion. According to EUIPO, the Board of Appeal carried out a global assessment, taking into account all the relevant factors of the particular case. It claims that the applicant has not established that the Board of Appeal made an error of assessment in finding that there was a likelihood of confusion.
88      In the present case, taking into account the assessments set out in paragraphs 60, 68 and 76 above, it must be held that, despite the identity or similarity of the goods covered by the marks at issue and the normal inherent distinctiveness of the earlier mark, the Board of Appeal erred in finding that there was a likelihood of confusion.
89      The average level of attention of the relevant public, the visual and phonetic differences between the signs at issue resulting in particular from their structure, rhythm and intonation, and the fact that those signs are conceptually different are sufficient to rule out any likelihood of confusion on the part of the relevant public, despite the low degree of visual and phonetic similarity.
90      In any event, it is sufficient to note that, contrary to what EUIPO maintains, first, it is apparent from paragraph 74 above that the earlier sign has a clear and specific meaning and will be immediately understood by the relevant public as evoking the concept of a lion and, second, for the reasons set out in paragraph 50 above, the sign applied for will be understood by the relevant public as a first name or surname. It follows that, in accordance with the case-law cited in paragraph 83 above, the conceptual difference between the signs at issue neutralises their slight visual and phonetic similarities.
91      It follows from all the foregoing that the Board of Appeal erred in finding that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
92      Accordingly, the applicant’s single plea in law must be upheld and, consequently, the contested decision must be annulled, without there being any need to examine the other arguments put forward by the applicant.
B.      The application for alteration
93      By the second part of the first head of claim, the applicant requests the Court to reject the opposition. It should be noted that, by that part of the first head of claim, the applicant asks the Court, in essence, to adopt the decision which, according to the applicant, the Board of Appeal should have taken. Consequently, the second part of the applicant’s first head of claim must be interpreted as asking the Court to exercise its power to alter decisions, as provided for in Article 72(3) of Regulation 2017/1001 (see, to that effect, judgment of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraph 84).
94      In that regard, it is apparent from Article 72(3) of Regulation 2017/1001 that, as regards actions brought against decisions of the Boards of Appeal, ‘the General Court shall have jurisdiction to annul or to alter the contested decision’.
95      According to the case-law, if the Court’s power to alter decisions does not have the effect of conferring on it the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position, the exercise of that power must be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).
96      In the present case, it must be pointed out that, in the contested decision, the Board of Appeal adopted a position on whether there was a likelihood of confusion between the marks at issue, with the result that the Court has the power to alter that decision in that regard.
97      As is apparent from paragraph 88 above, the Board of Appeal was required to find that there was no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
98      In those circumstances, it is appropriate, by altering the contested decision, to uphold the appeal that the applicant brought before the Board of Appeal.
IV.    Costs
99      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.
100    In the present case, since EUIPO has been unsuccessful, it must be ordered to pay the costs incurred in the proceedings before the Court, in accordance with the form of order sought by the applicant.
101    As regards the applicant’s request that EUIPO also be ordered to pay the costs incurred by the applicant in the proceedings before the Opposition Division and before the Board of Appeal, it should be borne in mind that, under Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are regarded as recoverable costs. However, that does not apply to costs incurred for the purposes of the proceedings before the Opposition Division (see, to that effect, judgment of 16 May 2017, Airhole Facemasks v EUIPO – sindustrysurf (AIR HOLE FACE MASKS YOU IDIOT), T‑107/16, EU:T:2017:335, paragraph 53). Therefore, as EUIPO submits, the applicant’s request that EUIPO be ordered to pay the costs of the administrative proceedings before EUIPO can be upheld only as regards the costs necessarily incurred by the applicant for the purposes of the proceedings before the Board of Appeal.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Annuls the decision of the Fourth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 12 May 2025 (Case R 2434/2024-4);
2.      Upholds the appeal brought by Instanta sp. z o.o. before the Board of Appeal;
3.      Orders EUIPO to pay the costs, including those incurred before the Board of Appeal.
Gâlea
Costeira
Ricziová
Delivered in open court in Luxembourg on 15 April 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.