JUDGMENT OF THE GENERAL COURT (Third Chamber)
30 April 2025 (*)
( EU trade mark – Opposition proceedings – Application for the EU figurative mark REAL PHARM – Earlier EU figurative mark real_- – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EU) 2017/1001 )
Case T‑312/24,
Real Pharm Group sp. z o.o., established in Czaplinek (Poland), represented by A.-M. Sobczak, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Nicolás Gómez, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
real GmbH, established in Mönchengladbach (Germany),
THE GENERAL COURT (Third Chamber),
composed of P. Škvařilová-Pelzl (Rapporteur), President, G. Steinfatt and R. Meyer, 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, Real Pharm Group sp. z o.o., seeks the annulment and the alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 24 April 2024 (Case
R 1376/2023-1) (‘the contested decision’).
Background to the dispute
2        On 25 November 2021, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign:
3        The mark applied for covered goods and services in Classes 5 and 35 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 corresponded, for each of those classes, to the following description:
–        Class 5: ‘Dietary supplements and dietetic preparations; dietary and nutritional supplements; protein dietary supplements; mineral dietary supplements; mineral nutritional supplements; calcium supplements; nutritional supplements; albumin dietary supplements; anti-oxidant food supplements; colostrum supplements; food supplements; food supplements; probiotic supplements; herbal supplements; prebiotic supplements; anti-oxidant supplements; liquid nutritional supplements; food supplements in liquid form; food supplements for sportsmen; dietary supplements for humans; dietary supplements for infants; liquid herbal supplements; mineral dietary supplements; food supplements; vitamin supplements; nutritional supplements; vitamin and mineral supplements; medicated food supplements; liquid vitamin supplements; nutritional supplements; food supplements for non-medical purposes; food supplements; food for medically restricted diets; food for babies; dietetic foods adapted for medical purposes; nutritional supplement meal replacement bars for boosting energy; powdered nutritional supplement drink mix; intravenous fluids used for rehydration, nutrition and the delivery of pharmaceutical preparations; dietary and nutritional preparations; vitamins and vitamin preparations; vitamin tablets; vitamin preparations; health food supplements made principally of vitamins; vitamin and mineral preparations; vitamin drinks; vitamin preparations in the nature of food supplements; dietary supplements in powder form’;
–        Class 35: ‘Wholesale services in relation to dietary supplements; retail services in relation to dietary supplements; retailing relating to nutritional supplements; retailing relating to vitamin and mineral supplements; retailing relating to food for medically restricted diets; retailing relating to food supplements; wholesaling relating to nutritional supplements; wholesaling relating to vitamin and mineral supplements; wholesaling relating to food for medically restricted diets; wholesaling relating to food supplements; retail services connected with the sale of clothing and clothing accessories; wholesale services in relation to clothing; retail services in relation to clothing; retail services relating to food; providing consumer product information relating to food or drink products; unmanned retail store services relating to food; retail services relating to food preparation implements; retail services in relation to food cooking equipment; wholesale services in relation to food cooking equipment; retail services relating to sporting goods; wholesale services relating to sporting goods; promotion of sports competitions and events’.
4        On 27 April 2022, real GmbH filed a notice of opposition to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above.
5        The opposition was based on the following earlier figurative mark:
6        The earlier mark covered, inter alia, goods and services in Classes 5 and 35 and corresponded, for each of those classes, to the following description:
–        Class 5: ‘Pharmaceutical and veterinary preparations; dietetic products for medical use, food for babies; mineral food-supplements; food supplements not for medical purposes based on white of egg, fats, fatty acids, with added vitamins, minerals, trace elements, either individually or in combination, included in this class; food supplements not for medical purposes based on carbohydrates, fibre, with the addition of vitamins, minerals and trace elements individually or in combination, included in this class’;
–        Class 35: ‘Advertising; retail services and presentation of goods connected with the sale featuring food; dietetic foods adapted for medical purposes, clothing, brooches (clothing accessories), cooking utensils; sport articles; commercial information and advice for consumers (consumer advice shop); providing consumer product information relating to food or drink products’.
7        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).
8        On 16 June 2023, the Opposition Division upheld the opposition.
9        On 3 July 2023, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
10      The proprietor of the earlier mark did not file any observations in response to the statement setting out the grounds of the appeal within the time limit allowed.
11      On 26 October 2023, the proprietor of the earlier mark informed the Board of Appeal that it was subject to insolvency proceedings. It requested that the proceedings before EUIPO be suspended. The request was rejected on the ground that the conditions for interrupting proceedings referred to in Article 106 of Regulation 2017/1001 were not satisfied.
12      By the contested decision, the Board of Appeal dismissed the appeal on the ground that there was a likelihood of confusion based both on the identity or similarity of the goods and services at issue and on the similarity of the signs at issue.
Forms of order sought
13      The applicant claims that the Court should:
–        annul the contested decision;
–        alter the contested decision by declaring the appeal well founded and the opposition unfounded in its entirety;
–        order EUIPO to pay the costs.
14      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
15      The applicant relies, in essence, on two pleas in law, the first alleging infringement of Article 8(1)(b) of Regulation 2017/1001 and the second alleging that the Board of Appeal erred in rejecting the request for suspension of the proceedings submitted by the proprietor of the earlier mark.
The first plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001
16      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.
17      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 33 and the case-law cited).
18      For the purposes 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).
The relevant public and its level of attention
19      In the present case, the Board of Appeal found that it was appropriate to examine the likelihood of confusion within the territory of the European Union and from the point of view of the English-speaking public. The Board of Appeal’s findings, which appear to be correct in the light of the evidence in the case file and which, moreover, are not disputed by the parties, must be upheld.
20      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).
21      In that regard, the Board of Appeal found that, depending on the goods and services in question, the level of attention of the relevant public was average or high. The Board of Appeal’s findings, which appear to be correct in the light of the evidence in the case file and which, moreover, are not disputed by the parties, must be upheld.
The comparison of the goods and services
22      In assessing the similarity of the goods and services at issue, all the relevant factors relating to those goods and services should be taken into account. Those factors include, inter alia, their nature, their intended purpose and their method of use and whether they are in competition with each other or are complementary. Other factors may also be taken into account such as the distribution channels of the goods concerned (see judgment of 14 May 2013, Sanco v OHIM – Marsalman (Representation of a chicken), T‑249/11, EU:T:2013:238, paragraph 21 and the case-law cited).
23      In the contested decision, the Board of Appeal found
that the goods and services at issue were identical or similar.
24      The applicant submits that the mark applied for covers precisely defined goods and services, namely dietary supplements and services in connection with the sale of those supplements. According to the applicant, the earlier mark covers, on the contrary, a very wide range of goods and services.
25      The applicant adds that it is widely known that the earlier mark is used to designate a network of hypermarkets, in particular in the food sector. According to the applicant, it is relevant to take into account the fact that the proprietor of the earlier mark only provides services for a hypermarket chain selling food and industrial products. Since the goods and services covered by the mark applied for are not sold in supermarkets and department stores, they correspond, according to the applicant, to a specific group of consumers, who will not associate the earlier mark with dietary supplements and services in connection with the sale of those supplements.
26      The applicant also states that, in view of the insolvency proceedings to which the proprietor of the earlier mark is subject, that mark is no longer used for the goods and services at issue.
27      In that regard, in the first place, it should be noted that where the goods and services covered by the earlier mark include the goods and services covered by the mark applied for, those goods and services are considered to be identical. The same is true where the goods and services covered by the earlier mark are included in a more general category covered by the mark applied for (see, to that effect, judgment of 8 July 2020, Scorify v EUIPO – Scor (SCORIFY), T‑328/19, not published, EU:T:2020:311, paragraph 49).
28      Consequently, as EUIPO correctly states, the argument that the goods and services covered by the earlier mark are worded in a very general manner, whereas the goods and services covered by the mark applied for are defined narrowly, does not call into question the Board of Appeal’s finding as to the identity or similarity of the goods and services at issue, since the goods and services covered by the mark applied for include those covered by the earlier mark.
29      In the second place, it should be borne in mind that, as regards the applicant’s argument relating to the use of the earlier mark, in the context of opposition proceedings, EUIPO may only take account of the list of goods and services applied for as it appears in the trade mark application concerned subject only to any amendments thereto (see, to that effect, judgment of 22 March 2007, Saint-Gobain Pam v OHIM – Propamsa (PAM PLUVIAL), T‑364/05, EU:T:2007:96, paragraph 89).
30      As particular marketing strategies for goods and services covered by the marks can vary over time and depend on the wishes of the proprietors of those marks, the prospective assessment of the likelihood of confusion between two marks cannot be dependent on marketing intentions, whether implemented or not, which are by their very nature subjective for the proprietors of the marks (judgments of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59, and of 9 September 2008, Honda Motor Europe v OHIM – Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 63).
31      The use which the proprietor of the earlier mark has made or is making of that mark is therefore irrelevant in that context.
32      Furthermore, the comparison of the goods and services required by Article 8(1)(b) of Regulation 2017/1001 must relate to the description, as it appears in the registration document, of the goods and services covered by the earlier mark and not to the goods and services for which that mark is actually used unless, following a request for proof of genuine use of the earlier mark, in accordance with Article 47(2) of that regulation, such proof is furnished only in respect of some of the goods or services for which the earlier mark is registered (see, to that effect, judgment of 13 December 2012, Natura Selection v OHIM – Ménard (natura), T‑461/11, not published, EU:T:2012:693, paragraph 31 and the case-law cited).
33      It must be pointed out that genuine use of the earlier mark, within the meaning of Article 47(2) of Regulation 2017/1001, is not disputed by the applicant in the present case. Consequently, the applicant’s argument in support of the present complaint, since it concerns the particular marketing strategies of the goods and services covered by the marks at issue, is not relevant and must therefore be rejected.
34      Even if the applicant’s complaint could be regarded as seeking to dispute the genuine use of the earlier mark, it should be noted that that use was not disputed before the Board of Appeal. Under Article 188 of the Rules of Procedure of the General Court, entitled ‘Subject matter of the proceedings before the General Court’, the pleadings lodged by the parties in proceedings before the General Court may not change the subject matter of the proceedings before the Board of Appeal. Consequently, any challenge relating to genuine use should, in any event, be rejected as inadmissible (see, to that effect, judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraphs 43 to 46).
35      In the third place, as regards the applicant’s argument that, since the goods and services covered by the mark applied for are not sold in supermarkets and department stores, they correspond to a specific group of consumers, it must be borne in mind that the applicant has not disputed the Board of Appeal’s definition of the relevant public (see paragraph 19 above). Consequently, that argument must be rejected. The same is true of the applicant’s reliance on the clarifications provided by the EUIPO Guidelines on the difference between the goods and services, given that the signs at issue cover both goods and services.
36      Accordingly, the Board of Appeal was right to find that those goods and services at issue were identical or similar.
The comparison of the signs
37      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).
38      With regard to the assessment of the dominant character of one or more given components of a composite trade mark, 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).
39      Lastly, where a trade mark is composed of word and figurative elements, the former are, in principle, more distinctive than the latter, since the average consumer will more easily refer to the goods or services at issue by citing the name of the trade mark than by describing its figurative element (see, to that effect, judgment of 28 September 2022, Copal Tree Brands v EUIPO – Sumol + Compal Marcas (COPAL TREE), T‑572/21, not published, EU:T:2022:594, paragraph 31 and the case-law cited).
–       The distinctive and dominant character of the elements comprising the signs at issue
40      It should be noted that the signs at issue are figurative. The mark applied for consists of the words ‘real’ and ‘pharm’, represented in stylised black upper-case letters, placed in an elliptical shape, whereas the earlier mark consists of the word ‘real’ written in red lower-case letters, followed by two dashes represented in blue.
41      First, the element ‘real’ is dominant both for the mark applied for and for the earlier mark. As regards the mark applied for, that element appears in the first line and in characters that are admittedly stylised, but larger than those used for the element ‘pharm’. As regards the earlier mark, the element ‘real’ is dominant in view of its relative size compared with the only other element contained in that mark, which is, moreover, purely figurative and therefore less perceptible to the average consumer (see paragraph 39 above).
42      Although the applicant submits that the element ‘real’ is not distinctive, since it is associated with ‘truthfulness, reality, actuality, concreteness, authenticity or materiality’, the Board of Appeal was right to find that that element had no meaning in connection with the goods and services at issue. Therefore, that element has an average degree of distinctiveness.
43      That conclusion does not contradict the findings made by the Court in the judgments of 30 November 2017, Hanso Holding v EUIPO (REAL) (T‑798/16, not published, EU:T:2017:854, paragraph 24), and of 20 September 2019, Multifit v EUIPO (real nature) (T‑458/18, not published, EU:T:2019:634, paragraph 25), in which the Court upheld decisions of the Board of Appeal refusing, on the basis, inter alia, of their descriptive and therefore non-distinctive character, registration of a figurative sign including the word element ‘real’ and of the word sign real nature, respectively.
44      As regards the judgment of 30 November 2017, REAL (T‑798/16, not published, EU:T:2017:854), the goods covered were foodstuffs and not dietary supplements, which had a significant impact on the descriptive character of the sign. In that regard, the Court noted, in paragraph 24 of that judgment, that the word element ‘real’ of the mark applied for in that case, meaning ‘not artificial or simulated, genuine’, directly and immediately informed the relevant public that the goods concerned, which were foodstuffs and foods mainly intended for human consumption, were solely composed of the product itself and did not contain any artificial additives or supplements or had not been prepared or treated in any way. There is no such direct and specific link with the goods and services at issue in the present case.
45      As regards the judgment of 20 September 2019, real nature (T‑458/18, not published, EU:T:2019:634), the goods concerned included dietary supplements, as is the case here, but the contested sign was real nature. The word ‘nature’ played an important role in the assessment leading to the finding that that sign was descriptive. The Court stated, in paragraph 25 of that judgment, that it followed from the clear meaning of the expression ‘real nature’ that the sign described the characteristics of genuinely natural products, namely products containing exclusively natural ingredients or materials. Such a direct link cannot be made in the present case.
46      Second, the Board of Appeal was right to state in the contested decision that the second element of the mark applied for, ‘pharm’, would be perceived as a reference to pharmacy or pharmacists, that it would be understood as alluding to the fact that the goods and services offered are provided by a pharmacy and that, consequently, that element had a weak distinctive character.
–       The visual similarity of the signs at issue
47      The Board of Appeal found in the contested decision that the graphic differences between the signs at issue and the presence of the element ‘pharm’ only in the mark applied for could not outweigh the visual similarity resulting from the use in those two signs of an identical distinctive element, namely ‘real’. It found that the signs at issue were visually similar to an average degree.
48      The applicant submits that the signs at issue are in no way similar, given their differences in colour and stylisation and the presence of the element ‘pharm’ only in the mark applied for.
49      In that regard, it should be borne in mind that the element ‘real’, which is common to the two signs at issue, is both dominant and has an average degree of distinctiveness, whereas the element ‘pharm’, present only in the mark applied for, is not a dominant element and, moreover, has a weak distinctive character.
50      The Board of Appeal was therefore right to find that there was an average degree of visual similarity between the signs at issue, despite the difference in colours between them and the increased stylisation of the earlier mark.
–       The phonetic similarity of the signs at issue
51      The applicant submits that the presence of the word ‘pharm’ only in the mark applied for offsets the phonetic similarity of the signs at issue resulting from the pronunciation of the common word ‘real’.
52      The Board of Appeal, in the contested decision, correctly found that the signs at issue coincided in the sounds produced when pronouncing the element ‘real’, which was present at the beginning of both signs. It also correctly found that the only figurative elements of the two signs would not be pronounced and could not therefore influence the phonetic comparison of those signs.
53      As regards the second point on which the Board of Appeal based its analysis, namely the fact that the purely figurative elements of the two signs would not be pronounced and could not influence the phonetic comparison of those signs, it must be borne in mind that, in the strict sense, the phonetic reproduction of a composite trade mark corresponds to that of all its word elements, regardless of their specific graphic features, which fall more within the analysis of the sign on a visual level. Therefore, for the purposes of the phonetic comparison, it is not necessary to take into account the figurative elements of the signs at issue, which will not be pronounced by the relevant public (see, to that effect, judgment of 29 March 2023, Machková v EUIPO – Aceites Almenara (ALMARA SOAP), T‑436/22, not published, EU:T:2023:167, paragraph 84 and the case-law cited).
54      However, in view of the presence of the word ‘pharm’ solely in the mark applied for, it must be held that the Board of Appeal erred in finding that there was a high degree of phonetic similarity between the signs at issue. Instead, on the basis of the considerations set out in paragraphs 52 and 53 above, it must be concluded that there is an average degree of similarity. In that regard, even though the two words of the mark applied for will be pronounced by the relevant public, the presence of the word ‘pharm’ solely in the mark applied for cannot, contrary to what the applicant claims, have the effect of offsetting the phonetic similarity of the signs at issue resulting from the pronunciation of the common word ‘real’.
–       The conceptual similarity of the signs at issue
55      The Board of Appeal found that there was at least an average degree of similarity between the signs at issue, given the presence in both signs of the word ‘real’.
56      The applicant submits that the expression ‘real pharm’, taken as a whole, refers, for consumers, to a particular sector of goods and services, whereas the word ‘real’ refers to the exclusively commercial nature of unspecified goods.
57      In that regard, it should be borne in mind that, unlike the element ‘pharm’, which is weakly distinctive with regard to the goods and services at issue (see paragraph 46 above), the element ‘real’, which has no meaning in connection with those goods and services, has an average degree of distinctiveness (see paragraph 42 above). In view of that difference, it is the element ‘real’ which will primarily be taken into account by the relevant public.
58      The idea or image conveyed by the signs at issue is that of goods and services that actually exist. Even though the mark applied for is more precise, in that it also refers to goods or services in connection with pharmacy, it mainly refers, like the earlier mark, to the concept of ‘reality’.
59      Therefore, it must be held, as the Board of Appeal correctly did, that there is an average degree of conceptual similarity between the two signs at issue.
The distinctiveness of the earlier mark
60      In the contested decision, the Board of Appeal found that the earlier mark, as a whole, had no meaning for the relevant public with regard to the goods and services at issue and that, therefore, the inherent distinctiveness of that mark had to be regarded as ‘normal’, that is to say, average. The Board of Appeal’s findings, which appear to be correct in the light of the evidence in the case file and which, moreover, are not disputed by the parties, must be upheld.
The likelihood of confusion
61      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).
62      The Board of Appeal found that there was a likelihood of confusion in view of the identity or similarity of the goods and services at issue and the similarity of the signs at issue, including for the goods and services at issue in respect of which the level of attention of the relevant public was high.
63      The applicant claims that there is no similarity between the signs at issue, pointing out that that is one of the cumulative conditions necessary for a finding of a likelihood of confusion and submits that, in view of that lack of similarity between the signs at issue, there is no likelihood of confusion, in particular for those goods and services for which the level of attention of the relevant public is high.
64      However, as is apparent from the considerations set out in paragraphs 50, 54 and 59 above, the applicant is not justified in claiming that the signs at issue are dissimilar. On the contrary, in view of the element ‘real’ common to those signs, there is, first, an average degree of visual similarity, second, an average degree of phonetic similarity and, third, an average degree of conceptual similarity.
65      Lastly, it has also been concluded that the earlier mark had an average degree of distinctiveness (see paragraph 60 above).
66      In the light of the foregoing considerations and taking into account the identity or similarity of the goods and services at issue (see paragraph 36 above), it must be held that the Board of Appeal was fully entitled to conclude in the present case that there was a likelihood of confusion, including in respect of the goods and services at issue for which the level of attention of the public is the highest.
67      Furthermore, the applicant also relies on the lack of use of the earlier mark, in view of the insolvency proceedings to which the proprietor of that mark is subject, but without disputing the genuine use of that mark. Moreover, even if it were to dispute that use, that argument would have to be rejected, as has been pointed out in paragraph 34 above.
68      It follows from all the foregoing that the applicant’s first plea in law must be rejected.
The second plea in law, alleging that the Board of Appeal erred in rejecting the request for suspension of the proceedings submitted by the proprietor of the earlier mark
69      In support of the second plea in law, the applicant submits that the Board of Appeal erred in rejecting the request for suspension of the proceedings submitted by the proprietor of the earlier mark and based on the insolvency proceedings to which it was subject by finding that the existence of those insolvency proceedings did not constitute a ground for suspension. The applicant submits, inter alia, that the ongoing insolvency proceedings and the situation of the proprietor of the earlier mark are relevant to the question of the use of that mark. It also refers to a lack of use of that mark, in view of those insolvency proceedings.
70      Without there being any need to rule on the admissibility of the present plea, even though, first, the error relied on in support of the claim for annulment of the contested decision concerns a separate measure, although taken during the proceedings leading to the adoption of that decision, but which has no connection with the grounds for that decision and, second, that error is relied on by a party to the proceedings before the Board of Appeal other than that which submitted the request at issue, it should be noted that the applicant is merely, in essence, relying on the lack of use of the earlier mark by the proprietor of that mark, in view of the insolvency proceedings to which it is subject, without explaining how that circumstance could have justified both an interruption of the proceedings before the Board of Appeal and a suspension of those proceedings. The applicant’s second plea must therefore be rejected. Furthermore, even if the applicant were to dispute genuine use of the earlier mark, such an argument would have to be rejected, as has been pointed out in paragraph 34 above.
71      It follows from all of the foregoing that the second plea in law relied on by the applicant must be rejected. Since neither of the pleas in law put forward by the applicant in support of the
form of order sought by it, either for the annulment or the alteration of the contested decision, are well founded, the action must be dismissed in its entirety.
Costs
72      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.
73      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 held, each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Real Pharm Group sp. z o.o. and the European Union Intellectual Property Office (EUIPO) to each bear their own costs.
Škvařilová-Pelzl
Steinfatt
Meyer
Delivered in open court in Luxembourg on 30 April 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.