JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
15 April 2026 (*)
( EU trade mark – Opposition proceedings – Application for EU word mark Ibumax-Lysin – Earlier Polish word mark ibum – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑410/25,
Vitabalans Oy, established in Hämeenlinna (Finland), represented by P. Eskola, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Lobotková and D. Gája, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Hasco TM sp. z o.o. sp.k., established in Wrocław (Poland),
THE GENERAL COURT (Sixth Chamber),
composed of P. Škvařilová-Pelzl (Rapporteur), President, I. Nõmm and D. Kukovec, 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, Vitabalans Oy, seeks the annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 April 2025 (Case R 1385/2024-1) (‘the contested decision’).
Background to the dispute
2        On 20 October 2022, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the word sign Ibumax-Lysin.
3        The mark applied for covered the product 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, corresponding to the following description: ‘Ibuprofen for use as an oral analgesic’.
4        On 26 January 2023, Hasco TM sp. z o.o. sp.k. filed a notice of opposition to registration of the mark applied for in respect of the product referred to in paragraph 3 above.
5        The opposition was based, in particular, on the earlier Polish word mark ibum, registered on 6 July 2010 and covering goods in Class 5 corresponding to the following description: ‘Pharmaceutical products, chemical preparations for pharmaceutical purposes, chemico-pharmaceutical preparations, suppositories, pharmaceuticals, cachets for pharmaceutical purposes, capsules for medicines, capsules of pharmaceutical cachets, acids for pharmaceutical purposes, medicines to drink, medicines for human purposes, ointments for pharmaceutical purposes, antimigraine drugs, medicinal drinks, pastilles for pharmaceutical purposes, pills for pharmaceutical purposes, analgesics, syrups for pharmaceutical purposes, tablets for pharmaceutical purposes’.
6        The grounds relied on in support of the opposition were, in particular, 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 2 July 2024, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001.
8        On 10 July 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 on the ground that there was a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
Forms of order sought
10      The applicant claims, in essence, that the Court should:
–        annul the contested decision;
–        reject the opposition in its entirety;
–        order EUIPO to pay the costs incurred before the Court and 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.
Law
The admissibility of evidence adduced for the first time before the General Court
12      EUIPO submits that Annexes A.6 to A.8 to the application are inadmissible, because the documents that they contain were submitted for the first time before the General Court.
13      The purpose of actions before the Court under Article 72(2) of Regulation 2017/1001 is to obtain a review of the legality of decisions of the Boards of Appeal. In the context of that regulation, Article 95 thereof requires that that review must be carried out in the light of the factual and legal context of the dispute as it was brought before the Board of Appeal (see judgment of 1 February 2005, SPAG v OHIM – Dann and Backer (HOOLIGAN), T‑57/03, EU:T:2005:29, paragraph 17 and the case-law cited). It follows that the Court may not annul or alter a decision against which an action has been brought on grounds which come into existence subsequent to its adoption (judgments of 11 May 2006, Sunrider v OHIM, C‑416/04 P, EU:C:2006:310, paragraph 55, and of 13 March 2007, OHIM v Kaul, C‑29/05 P, EU:C:2007:162, paragraph 53).
14      Therefore, it is not the Court’s function to review the facts in the light of documents adduced for the first time before it. To allow the examination of such evidence would be contrary to Article 188 of the Rules of Procedure of the General Court, according to which the parties’ submissions may not alter the subject matter of the proceedings before the Board of Appeal. Accordingly, the evidence submitted for the first time before the Court must be declared inadmissible and there is no need to examine it (see, to that effect, judgment of 14 May 2009, Fiorucci v OHIM – Edwin (ELIO FIORUCCI), T‑165/06, EU:T:2009:157, paragraph 22 and the case-law cited).
15      In the present case, as is apparent from EUIPO’s file, the documents contained in Annexes A.6 to A.8 to the application were not submitted by the applicant during the procedure before EUIPO, with the result that they must be rejected as inadmissible.
The single plea in law alleging infringement of Article 8(1)(b) of Regulation 2017/1001
16      The applicant submits, in essence, that the Board of Appeal infringed Article 8(1)(b) of Regulation 2017/1001 by finding that there was a likelihood of confusion. In particular, the applicant claims that the Board of Appeal committed errors of assessment as regards the similarity of the goods at issue, the distinctive and dominant elements of the signs at issue, the similarity of those signs and the distinctive character of the earlier mark.
17      EUIPO disputes the applicant’s arguments.
18      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.
19      A likelihood of confusion presupposes both that the two marks 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).
The relevant public and its level of attention
20      In paragraph 19 of the contested decision, the Board of Appeal found in essence that, first, the goods at issue were pharmaceuticals that targeted the public at large as well as professionals in the healthcare sector displaying a high level of attention, and that, secondly, since the earlier mark was a Polish mark, the relevant territory was Poland.
21      That assessment, which, moreover, is not disputed by the parties, must be upheld.
The comparison of the goods
22      In paragraph 21 of the contested decision, the Board of Appeal found that the product covered by the mark applied for, namely ‘ibuprofen for use as an oral analgesic’ was identical to the ‘analgesics’ covered by the earlier mark given that it is contained in the broader category of the goods covered by that mark.
23      The applicant asserts, in essence, that the goods at issue are different in that ‘ibuprofen for use as an oral analgesic’ covered by the mark applied for contains a specification regarding ibuprofen, whereas the ‘analgesics’ covered by the earlier mark can include ibuprofen, but can also include paracetamol, aspirin or naproxen.
24      According to settled case-law, in assessing the similarity of the goods or services concerned, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 23). Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM – Bolaños Sabri (PiraÑAM diseño original Juan Bolaños), T‑443/05, EU:T:2007:219, paragraph 37 and the case-law cited).
25      Furthermore, it should be recalled that where the goods covered by the earlier mark include the goods covered by the trade mark application, those goods are considered to be identical (see judgment of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE), T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited).
26      In the present case, it is sufficient to note that the goods covered by the earlier mark include the product covered by the mark applied for. ‘Ibuprofen for use as an oral analgesic’, covered by the mark applied for, is part of the broader category of ‘pharmaceutical products’ and in particular ‘analgesics’, covered by the earlier mark, with the result that the Board of Appeal was right to find that the goods at issue were identical.
The comparison of the signs
27      It is apparent from the case-law that two marks are similar, within the meaning of Article 8(1)(b) of Regulation 2017/1001, where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (see judgment of 17 December 2009, Notartel v OHIM-SAT.1 (R.U.N.), T‑490/07, not published, EU:T:2009:522, paragraph 47 and the case-law cited).
28      According to settled case-law, 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, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services at issue 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 proceed to analyse 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).
29      It is in the light of those considerations that it is necessary to examine whether the Board of Appeal was right to find, in essence, that there was a low similarity between the signs at issue.
–       The distinctive and dominant elements of the signs at issue
30      In paragraphs 24 to 31 of the contested decision, the Board of Appeal found, in essence, as regards the mark applied for, that the relevant public would break it down into three elements, namely ‘ibu’, ‘max’ and ‘lysin’. According to the Board of Appeal, even though the element ‘ibu’ may be perceived by that public as a reference to ibuprofen, there is nothing, however, to prove that that element is an established abbreviation for ‘ibuprofen’, with the result that it has a low degree of distinctiveness. As for the element ‘max’, the Board of Appeal found that it is perceived by that public as highlighting that the goods at issue have a maximum effect, with the result that it is descriptive and non-distinctive. It found that the word element ‘lysin’ can also be understood by that public, in particular by the professionals, as describing an ingredient of the product covered by the mark applied for. Accordingly, given that the elements ‘max’ and ‘lysin’ are descriptive of the product covered by the mark applied for, the most distinctive element of that mark is the element ‘ibu’, irrespective of its evocative nature.
31      As regards the earlier mark, the Board of Appeal noted that that mark was composed of the word ‘ibum’ and that, while the relevant public could indeed recognise the initial letters ‘ibu’ as a reference to ibuprofen, it has, however, no reason to disregard those letters in the overall impression of the earlier mark given that, together with the final letter ‘m’, they form a short word which is perceived as a whole.
32      The applicant claims, in essence, that the common element ‘ibu’ is a widely used general abbreviation for ibuprofen, as demonstrated by Annexes A.5 to A.7 to the application, with the result that it is purely descriptive and does not enjoy any degree of distinctiveness. Furthermore, the applicant argues that the elements ‘ibumax’ and ‘lysin’ in the mark applied for are dominant, while the element ‘lysin’ is distinctive.
33      It should be recalled that, according to the case-law, word marks consist entirely of letters, words or associations of words which are written in printed characters in a normal font without any specific graphic element. Such marks therefore do not have a dominant element since, by their nature, none of the constituent elements has a particular graphic or stylistic aspect which is capable of giving it such a character (see judgment of 2 March 2022, UGA Nutraceuticals v EUIPO – Vitae Health Innovation (VITADHA), T‑149/21, not published, EU:T:2022:103, paragraph 79 and the case-law cited).
34      Accordingly, since the marks at issue are word marks, none of the signs at issue contains dominant elements, contrary to what the applicant claims in relation to the elements ‘ibumax’ and ‘lysin’ in the mark applied for.
35      As regards the inherent distinctive character of the constituent elements of the signs at issue, it should be recalled that, although the average consumer normally perceives a mark as a whole and does not analyse its various details, the fact remains that, when perceiving a word sign, the average consumer will break it down into word elements which, for him or her, suggest a concrete and immediately understandable meaning or which resemble words known to him or her (see judgment of 1 February 2023, NFL Properties Europe v EUIPO – Groupe Duval (DUUUVAL), T‑671/21, not published, EU:T:2023:33, paragraph 57 and the case-law cited).
36      For the purpose of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 21 December 2021, Dr. Spiller v EUIPO – Rausch (Alpenrausch Dr. Spiller), T‑6/20, not published, EU:T:2021:920, paragraph 99 and the case-law cited).
37      According to settled case-law, a term with a clear meaning is considered to be descriptive only if there is a sufficiently direct and specific relationship between that term and the goods and services at issue to enable the public concerned immediately to perceive, without further thought, a description of the goods and services at issue or one of their characteristics (see judgment of 24 February 2016, Tayto Group v OHIM – MIP Metro (REAL HAND COOKED), T‑816/14, not published, EU:T:2016:93, paragraph 63 and the case-law cited).
38      First, it should be noted that the element ‘ibu’, which appears in the first part of the signs at issue, can be understood by the relevant public as alluding to ‘ibuprofen’ in relation to the goods covered by the marks at issue, since they are the initial letters of the generic name of the active substance ‘ibuprofen’, which is a well-known analgesic referred to by the near-identical Polish term ‘ibuprofen’, as is apparent from EUIPO’s file. That is all the more true given that references to the sphere of application and to active ingredients of products are typical in the field of pharmacology (see, to that effect, judgment of 14 July 2011, Winzer Pharma v OHIM – Alcon (OFTAL CUSI), T‑160/09, not published, EU:T:2011:379, paragraph 80).
39      Accordingly, although the Board of Appeal was indeed right to note, in paragraph 25 of the contested decision, that the relevant public would recognise the element ‘ibu’ in the mark applied for, in accordance with the case-law referred to in paragraph 35 above, it nevertheless committed an error of assessment by failing to apply that consideration to the earlier mark given that it stated, in paragraph 31 of that decision, that the mark applied for consisted solely of the element ‘ibum’, and that the relevant public will also be able to recognise the element ‘ibu’ in the earlier mark, with the result that they will break it down into two elements ‘ibu’ and ‘m’. Contrary to what EUIPO argues, the fact that the relevant public recognises the element ‘ibu’ in the earlier mark does not mean that that mark will not be perceived as a whole, in accordance with the case-law cited in paragraph 35 above.
40      Next, contrary to what the applicant claims, the two public sources cited in Annex A.5 to the application are not capable in themselves of demonstrating that the relevant public will immediately perceive, and without further thought, the term ‘ibu’ as a description of the term ‘ibuprofen’. As EUIPO noted, the excerpt from the website ‘www.drugs.com’ relates solely to the fact that the name of the mark ‘ibu’ has been discontinued in the United States, whereas the excerpt from the website ‘acronymfinder.com’ is a database in English and lists 36 alternative meanings for the term ‘ibu’. As for Annexes A.6 and A.7 to the application, they have been rejected as inadmissible (see paragraph 15 above).
41      Accordingly, since the relevant public recognises the element ‘ibu’ in the initial part of the signs at issue as alluding to the active substance of the goods at issue, the Board of Appeal was right to find that it will not be perceived as being directly descriptive, but as having a low degree of distinctiveness (see, to that effect and by analogy, judgment of 20 September 2018, Kwizda Holding v EUIPO – Dermapharm (UROAKUT), T‑266/17, EU:T:2018:569, paragraphs 42 and 43).
42      Secondly, as regards the element ‘max’ comprising the mark applied for, it should be noted, as the Board of Appeal did, that that element is a common abbreviation for the term ‘maximum’, which will be directly understood by the Polish relevant public as highlighting that the goods at issue have a maximum level of performance and efficiency (see, to that effect, judgment of 28 October 2010, Farmeco v OHIM – Allergan (BOTUMAX), T‑131/09, not published, EU:T:2010:458, paragraph 44 and the case-law cited), with the result that the Board of Appeal was right to find that the element ‘max’ of that mark was descriptive and lacking distinctive character.
43      Thirdly, as regards the element ‘lysin’ in the mark applied for, it should be observed, as the Board of Appeal did, that that element refers in English to an ‘amino acid’ which is likely to be known and understood by the relevant public, in particular by professionals in the health sector, since the term ‘lysin’ is very similar to the equivalent Polish term ‘lyzina’ and it is well-known that combining lysine and ibuprofen results in lysine salt of ibuprofen, with the result that that element describes an ingredient of the product covered by that mark, which the applicant has not called into question. It follows that the Board of Appeal was right to find that that element was descriptive and lacking distinctive character.
–       The visual and phonetic similarity
44      In paragraphs 32 and 33 of the contested decision, the Board of Appeal found, in essence, that the signs at issue were visually and phonetically similar to a low degree, noting, first of all, that they coincided in their initial letters ‘ibum’, to which consumers normally pay more attention, but which evoked the nature and intended purpose of the goods at issue. Next, it found that those signs differed in the sequence of letters ‘ax’ and the element ‘lysin’ contained in the mark applied for, and in their structure given that the earlier mark consisted of a single word, whereas the mark applied for was composed of two words joined by a hyphen. In that connection, the Board of Appeal noted that, irrespective of their descriptive nature, the additional elements of the mark applied for would not be overlooked since they contribute to a difference in length and structure.
45      First, the applicant complains, in essence, that the Board of Appeal found a weak visual similarity between the signs at issue by focusing solely on their common initial letters ‘ibum’ and ignoring the additional elements of the mark applied for.
46      In that connection, contrary to what the applicant argues, it is clear from paragraph 44 above that, in order to conclude that there was a weak visual similarity between the signs at issue, the Board of Appeal did not rely solely on the initial letters ‘ibum’ of the signs at issue, but also took the additional elements of the mark applied for into account, namely the sequence of letters ‘ax’ and the element ‘lysin’, and the resulting difference in the length and structure of those signs.
47      Secondly, in so far as the applicant submits that the pronunciation of the mark applied for should concentrate equally on the elements ‘ibumax’ and ‘lysin’ inasmuch as they are dominant, it was noted in paragraph 34 above that none of the signs contain a dominant element since they are word marks.
48      Thirdly, in so far as the applicant claims that the signs at issue differ visually and phonetically, it should be pointed out that the earlier mark is entirely contained in the mark applied for, which, according to settled case-law, is an indication that the two signs are similar (see, to that effect, judgment of 23 March 2022, Vetpharma Animal Health v EUIPO – Deltavit (DELTATIC), T‑146/21, not published, EU:T:2022:159, paragraph 105 and the case-law cited).
49      Furthermore, according to case-law, the consumer is deemed generally to pay greater attention to the beginning of a mark than to its end, as the first part of a mark normally has a greater impact, both visually and phonetically, than the final part (see judgment of 9 September 2019, SLL Service v EUIPO – Elfa International (LUMIN8), T‑680/18, not published, EU:T:2019:565, paragraph 35 and the case-law cited). Although that argument does not hold in all cases (see, to that effect, judgment of 21 December 2021, Alpenrausch Dr. Spiller, T‑6/20, not published, EU:T:2021:920, paragraph 136 and the case-law cited), the fact remains that, in the present case, the element ‘ibu’ at the beginning of the mark applied for has a higher distinctive character than its elements ‘max’ and ‘lysin’, since those elements are descriptive and lacking distinctive character (see paragraphs 42 and 43 above). It follows that, despite the visual and phonetic differences arising from the length and number of syllables of the signs at issue, the relevant public will be more inclined to pay attention to the beginning of the mark applied for and, accordingly, to perceive a low degree of visual and phonetic similarity to the earlier mark, which is entirely contained at the beginning of the mark applied for.
50      In those circumstances, the Board of Appeal was right to find that there was a low degree of visual and phonetic similarity between the signs at issue.
–       The conceptual similarity
51      In paragraph 44 of the contested decision, the Board of Appeal found, in essence, that the signs at issue were conceptually similar to a low degree.
52      The applicant submits that the earlier mark refers directly to ibuprofen, whereas the mark applied for comprises the element ‘max’ and the element ‘lysin’ which exclude any conceptual similarity, since the relevant public is capable of distinguishing ibuprofen products from those also containing lysine as an ingredient.
53      In that connection, it should be stated that, even if the relevant public perceives a mark as a whole, the fact remains that it is very likely that that public recognises the initial letters ‘ibu’ of the earlier mark as alluding to ibuprofen (see paragraphs 38 and 40 above).
54      Furthermore, as regards the mark applied for, the relevant public will also understand the element ‘ibu’ as alluding to ibuprofen, whereas it will understand the element ‘max’ as meaning ‘maximum’ and the element ‘lysin’ as referring to an amino acid.
55      It should therefore be stated that, even if the signs at issue differ conceptually in the meanings of the descriptive elements ‘max’ and ‘lysin’ of the mark applied for, they remain similar to a low degree due to the meaning conveyed by their common element ‘ibu’ (see, to that effect, judgment of 20 September 2018, UROAKUT, T‑266/17, EU:T:2018:569, paragraphs 67 to 69).
The distinctive character of the earlier mark
56      In paragraphs 35 to 40 of the contested decision, the Board of Appeal noted, in essence, that there was no need to determine the exact degree of the inherent distinctiveness of the earlier mark, given that the evidence furnished by the intervener demonstrated that that mark enjoyed a high degree of recognition among the relevant public for ‘analgesics’ at the filing date of the mark applied for. Accordingly, the Board of Appeal found that, even assuming that the inherent distinctiveness of the earlier mark is very low, as claimed by the applicant, the view had to be taken that it was high as a result of its long-standing use and high degree of recognition among that public.
57      The applicant submits, in essence, first, that the earlier mark is composed of a commonly used abbreviation for ibuprofen, to which the letter ‘m’ has been added, with the result that that mark is descriptive and cannot therefore be considered, on the basis of that fact alone, as having acquired sufficient distinctiveness. That is all the more so given that there are 42 marks registered in EUIPO’s database which have names beginning with ‘ibu’ for goods in Class 5. Secondly, the applicant claims that the evidence provided by the intervener relates only to the Polish territory, which is not sufficient to demonstrate that the earlier mark acquired distinctiveness within the European Union. Furthermore, the applicant argues that the research report of 29 July 2022 (Annex 4) is not relevant since it relates to the mark Ibumax and not to Ibumax-Lysin. Lastly, it submits that the evidence dates back to several years before the relevant date, rendering it obsolete.
58      In the first place, it should be recalled that, in accordance with the case-law cited in paragraph 28 above, the earlier mark will be perceived by the relevant public as a whole and not as being composed only of the element ‘ibu’, with the result that the applicant’s argument that that mark is descriptive and cannot be considered, on the basis of that fact alone, as having acquired distinctiveness, cannot succeed. For that reason, the applicant’s argument alleging the existence of a certain number of trade mark registrations that begin with the element ‘ibu’ and cover goods in Class 5, which, in any event, do not necessarily reflect the situation on the market and do not allow the relevant public’s perception of the earlier mark to be established, must also be rejected (see, to that effect, judgment of 10 December 2025, Cin Valentine v EUIPO – Daw (VAL - - - ACRYL), T‑518/24, not published, EU:T:2025:1097, paragraph 30 and the case-law cited).
59      In the second place, it should be recalled that the more distinctive the earlier mark, the greater the likelihood of confusion will be. Accordingly, marks with a highly distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, judgments of 11 November 1997, SABEL, C‑251/95, EU:C:1997:528, paragraph 24; of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 18; and of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 20).
60      According to the case-law, the existence of a higher than normal level of distinctiveness as a result of the public’s recognition of a mark on the market necessarily presupposes that at least a significant part of the relevant public is familiar with it, but not necessarily that it has a reputation within the meaning of Article 8(5) of Regulation 2017/1001. It is not possible to state in general terms, for example by referring to specific percentages relating to the degree of recognition attained by the mark within the relevant section of the public, that a mark has a highly distinctive character. Nevertheless, it must be acknowledged that there is a certain interdependence between the public’s recognition of a mark and its distinctive character in that the more the mark is recognised by the target public, the more the distinctive character of that mark is strengthened. In order to assess whether a mark has a highly distinctive character as a result of the public’s recognition of it, all the relevant facts of the case must be taken into consideration, in particular the market share held by the mark; how intensive, geographically widespread and long-standing use of the mark has been; the amount invested by the undertaking in promoting the mark; the proportion of the relevant section of the public which, because of the mark, identifies the goods or services as originating from a particular undertaking; and statements from chambers of commerce and industry or other trade and professional associations (see judgment of 17 October 2019, E.I. Papadopoulos v EUIPO – Europastry (fripan VIENNOISERIE CAPRICE Pur Beurre), T‑628/18, not published, EU:T:2019:750, paragraph 63 and the case-law cited).
61      In order to have an unusually high degree of distinctiveness as a result of the public’s potential recognition of it, an earlier mark must, in any event, be familiar to the public on the filing date of the trade mark application or, as the case may be, on the priority date relied on in support of that application (see judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT), T‑277/04, EU:T:2006:202, paragraph 38 and the case-law cited), namely, in the present case, 20 October 2022.
62      Furthermore, according to the case-law, documents earlier than the filing date of the application cannot be denied evidential value if they enable conclusions to be drawn with regard to the situation as it was on that date (see, to that effect and by analogy, judgment of 16 March 2022, Laboratorios Ern v EUIPO – Nordesta (APIAL), T‑315/21, not published, EU:T:2022:141, paragraph 50). Nevertheless, it is not in principle inconceivable that a document compiled some time before or after the filing date of the application could contain useful indications, although it is clear that its evidential value is likely to vary depending on whether the period covered is close to or distant from the filing date or priority date of the trade mark application at issue (see, to that effect, judgment of 12 July 2006, VITACOAT, T‑277/04, EU:T:2006:202, paragraph 38 and the case-law cited).
63      First, it should be pointed out that the vast majority of evidence relates to Poland, which is the relevant territory, as was noted in paragraph 20 above. Accordingly, contrary to what the applicant argues, the intervener was not required to demonstrate that the earlier mark had acquired sufficient distinctiveness in the European Union, only that it had done so in Poland.
64      Secondly, it should be pointed out, as the Board of Appeal did, that the evidence proves an intensive and long-standing use of the earlier mark for ‘analgesics’ from 2009 to 2023. In particular, as the Board of Appeal noted, the figures displayed in Annexes 6 and 10 to the opposition show that more than four million units of goods under the mark ibum were marketed each year from 2011 to 2018 and from 2021 to 2023. Furthermore, the written statement of the intervener’s marketing director (Annex 9 to the opposition), according to which the intervener made significant investments in the promotion of that mark during the period from 2017 to 2023, is corroborated, in particular, by the advertisements for that mark in Polish magazines and advertising videos broadcast in Polish on the website YouTube (Annexes 7 and 8 to the opposition), and by the report entitled ‘Research of awareness of painkillers and their advertisements’ of January 2009 (Annex 11 to the opposition), which indicates that, following an advertisement campaign, the awareness of the mark at issue among Polish consumers increased from 32.3% in February 2008 to 50% in January 2009.
65      Thirdly, the various market research reports dated 2009, 2012, 2016, 2018 and 2022 (Annexes 4 and 11 to 14 to the opposition) and the numerous awards received for the earlier mark during the period from 2015 to 2018 as a ‘super brand’ in Poland (Annex 10 to the opposition) indicate that that mark is widely known by the relevant public for the goods it covers. That is also confirmed by the decision of the Urząd Patentowy RP (Polish Patent Office) of 6 December 2016 (Annex 2 to the opposition).
66      Fourthly, contrary to what the applicant argues, the fact that certain evidence dates back to before the relevant date does not mean that it is irrelevant. It should be recalled that the duration of the use of the earlier mark and the intensity of that use are among the factors which, according to the case-law cited in paragraph 61 above, must be taken into account in assessing the distinctive character acquired through use of the earlier mark. As stated in paragraph 65 above, that evidence demonstrated an intensive and long-standing use of the earlier mark for the goods it covers until 2023. Similarly, in accordance with the case-law cited in paragraph 62 above, and as noted in paragraph 65 above, the evidence dated from 2009 to 2018 (Annexes 2 and 10 to 14 to the opposition) shows a high level of recognition of the earlier mark for the goods it covers by Polish consumers, while the rate of recognition of 79% of the mark at issue reported in the market study dated July 2022 (Annex 4 to the opposition) confirms that that was still the case on a date very close to the date relevant to the present case.
67      Fifthly, it is irrelevant that the market study of July 2022 (Annex 4 to the opposition) also related to the rate of recognition of the mark ibumax and not to the mark ibumax-lysin, since only the earlier mark should be taken into account in order to show that it acquired distinctiveness through use.
68      It therefore follows from the foregoing considerations that the Board of Appeal was right to find that the evidence, taken as a whole, demonstrated a high degree of distinctiveness of the earlier mark, in view of its long-standing use and of the high degree of recognition of that mark among the relevant public for the goods it covers.
The global assessment of the likelihood of confusion
69      A global assessment of the likelihood of confusion implies some interdependence between the relevant factors and, in particular, a similarity between the signs and between the goods or services covered. Accordingly, a lesser degree of similarity between those goods or services may be offset by a greater degree of similarity between the signs, 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).
70      It is also settled case-law that the degree of distinctiveness of the earlier mark, which determines the extent of the protection conferred by it, is one of the relevant factors in the present case. Where the distinctiveness of the earlier mark is significant, such a circumstance is likely to increase the likelihood of confusion. That being so, the existence of a likelihood of confusion is not precluded where the distinctiveness of the earlier mark is weak (see judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 70 and the case-law cited).
71      In paragraphs 44 and 45 of the contested decision, the Board of Appeal found, in essence, that, taking into account the identity of the goods at issue, the low visual, phonetic and conceptual similarity of the signs at issue, and the high degree of distinctiveness through the use of the earlier mark, there was a likelihood of confusion, despite the high level of attention of the relevant public. Furthermore, the Board of Appeal noted that the applicant had not provided sufficient proof to demonstrate the peaceful coexistence of the marks at issue.
72      The applicant submits, in essence, that there is no likelihood of confusion. In particular, the applicant notes that the goods have been offered in coexistence with those of the intervener since 2011 and that the intervener has not brought any action against the registration or the actual use of the ibumax mark on the Polish market, as shown by Annex A.8 to the application. Furthermore, the applicant claims to hold a marketing authorisation for its goods under the mark ibumax-lysin, which requires that their name may not be confused with that of another pharmaceutical product.
73      In the present case, in view of the identity of the goods at issue, the low visual, phonetic and conceptual similarity of the signs at issue, and the high degree of distinctiveness of the earlier mark, it must be held that the Board of Appeal was right to find that there was a likelihood of confusion, even though the level of attention of the relevant public is high. In particular, it should be noted that, having regard, inter alia, to the identity of the goods at issue, it cannot be ruled out that consumers – even those with a high level of attention – may consider the mark applied for to be a variant of the earlier mark or the goods covered by the mark applied for to correspond to a line of goods marketed by the proprietor of the earlier mark (see, to that effect, judgment of 10 March 2016, LG Developpement v OHIM – Bayerische Motoren Werke (MINICARGO), T‑160/15, not published, EU:T:2016:137, paragraph 58).
74      Furthermore, it is true that the possibility cannot be ruled out that the coexistence of two marks on a particular market might, together with other elements, contribute to diminishing the likelihood of confusion between those marks on the part of the relevant public (judgments of 3 September 2009, Aceites del Sur-Coosur v Koipe, C‑498/07 P, EU:C:2009:503, paragraph 82, and of 30 June 2015, La Rioja Alta v OHIM – Aldi Einkauf (VIÑA ALBERDI), T‑489/13, EU:T:2015:446, paragraph 70). However, the possibility that the coexistence of the marks on the market could reduce the likelihood of confusion found to exist can arise only if, at the very least, during the proceedings before EUIPO, the party relying on the coexistence duly demonstrated, even if only by means of a body of consistent evidence, that that coexistence is based, first, on the lack of any likelihood of confusion on the part of the relevant public and, second, on actual use that was sufficiently long-standing for it to be able to influence the perception of the relevant consumer (see judgment of 20 March 2024, EFFAS v EUIPO – CFA Institute (CEFA Certified European Financial Analyst), T‑213/23, not published, EU:T:2024:189, paragraph 63 and the case-law cited).
75      During the proceedings before EUIPO, the applicant did not present any evidence to demonstrate the peaceful coexistence between the marks at issue. As for the statement by the chairman of the applicant’s board of directors (Annex A.8 to the application) aimed at proving that coexistence, that has been rejected as inadmissible (see paragraph 15 above). In any event, the absence of any likelihood of confusion cannot be inferred from the mere fact that the intervener did not, at an earlier stage, oppose the registration or actual use of the mark applied for (see, to that effect and by analogy, judgment of 12 July 2019, Ogrodnik v EUIPO – Aviário Tropical (Tropical), T‑276/17, not published, EU:T:2019:525, paragraph 84 and the case-law cited).
76      Similarly, the fact that the applicant obtained a marketing authorisation for its goods under the mark applied for is irrelevant in the present case, since any such authorisation has no bearing on the assessment of the likelihood of confusion in connection with the application of Regulation 2017/1001 (see, to that effect, judgment of 22 September 2005, Alcon v OHIM – Biofarma (TRAVATAN), T‑130/03, EU:T:2005:337, paragraph 79).
77      It follows that the Board of Appeal was right to find that the applicant had not demonstrated the peaceful coexistence of the marks at issue.
78      Having regard to all the foregoing considerations, the single plea in law must be rejected and, consequently, the action dismissed in its entirety.
Costs
79      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.
80      In the present case, although the applicant has been unsuccessful, EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is convened. Since no hearing was convened, it is appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Vitabalans Oy and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.
Škvařilová-Pelzl
Nõmm
Kukovec
Delivered in open court in Luxembourg on 15 April 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.