JUDGMENT OF THE GENERAL COURT (First Chamber)
11 February 2026 (*)
( EU trade mark – Opposition proceedings – Application for the EU figurative mark ProbioDefend – Earlier EU word mark Defendyl – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑209/25,
Nutris We care about you, SL, established in Pinto (Spain), represented by Á. González López-Menchero, V. Valero Piña and D. Armario Poyato, lawyers,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by T. Frydendahl, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being
Medis, farmacevtska družba, d.o.o., established in Ljubljana (Slovenia), represented by N. Zečević, lawyer,
THE GENERAL COURT (First Chamber),
composed of E. Buttigieg, President, M. Kancheva (Rapporteur) and E. Tichy‑Fisslberger, 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, Nutris We care about you, SL, seeks the annulment of the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 29 January 2025 (Case R 1365/2024-5) (‘the contested decision’).
Background to the dispute
2        On 20 October 2022, Pastor Y Canals SA, the applicant’s predecessor-in-title, filed an application for registration of an EU trade mark with EUIPO for the following figurative sign:
3        The mark applied for covered goods in Class 5 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Probiotic supplements; anti-oxidant supplements; extracts of medicinal plants; vitamin preparations, mineral nutritional supplements, nutritional supplements’.
4        On 4 April 2023, the intervener, Medis, farmacevtska družba, d.o.o., filed a notice of opposition to registration of the mark applied for in respect of the goods referred to in paragraph 3 above.
5        The opposition was based on the earlier EU word mark Defendyl and registered under No 9978552 on 23 January 2012, covering, inter alia, goods in Class 5 corresponding to the following description: ‘Dietary and nutritional supplements to strengthen the immune system; dietetic preparations for medical purposes; nutritional preparations for medical use; pharmaceuticals for human medicines; medicinal products, preparations and substances, not included in other classes; nutritional supplements, not included in other classes; nutritional supplements containing extracts of fungi, enriched with vitamins, minerals or trace elements; nutritional supplements made from or containing natural ingredients’.
6        The ground relied on in support of the opposition was that referred to 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 16 May 2024, the Opposition Division upheld the opposition.
8        On 5 July 2024, the applicant’s predecessor-in-title 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, finding that, having regard to the evidence in the file and despite the high level of attention of the relevant non-English-speaking public (Bulgarian, Czech and Hungarian), consisting of medical professionals and the general public, a likelihood of confusion between the marks at issue could not be ruled out on account of the goods at issue in Class 5 being identical, the average visual and phonetic similarity of those marks, the normal degree of distinctiveness of the earlier mark and the reproduction, within the mark applied for, of the only element with distinctive character, namely, ‘defend’, which is also contained within the earlier mark. Consequently, not only could the similarity created by that distinctive element constituting those marks not be offset by the differences created by the other non-distinctive or secondary elements constituting those marks, but the relevant non-English-speaking public might believe that the mark applied for, ProbioDefend, is a sub-brand or a variant of the earlier mark Defendyl, that finding being valid even if the English word ‘defend’ is considered to be weakly distinctive.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        grant the application for registration of EU trade mark No 18778093 in respect of the designated goods in Class 5, namely probiotic supplements; anti-oxidant supplements; extracts of medicinal plants; vitamin preparations, mineral nutritional supplements and nutritional supplements;
–        order EUIPO to pay the costs.
11      EUIPO contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs in the event that an oral hearing is convened.
12      The intervener claims, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
13      The applicant relies on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001 in that the Board of Appeal wrongly concluded that a likelihood of confusion between the marks at issue cannot be ruled out. In that regard, the applicant submits, in essence, that the incorrect identification of the distinctive and dominant elements of those marks distorted the visual and phonetic comparison between those marks and the result of the global assessment of the likelihood of confusion between them.
14      EUIPO, supported by the intervener, disputes the applicant’s arguments.
15      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.
16      According to the case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. 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).
17      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).
18      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).
19      As a preliminary point, it should be noted, as observed by EUIPO, that there is no need to call into question the Board of Appeal’s findings, which, moreover, are not disputed by the applicant, that the relevant public consists of medical professionals and the general public, which have a high level of attention, having regard to the fact that the goods at issue, in Class 5, have an impact on the health of consumers.
20      The same is true as regards the relevant territory and, in particular, the limitation to the Bulgarian, Czech and Hungarian public only, in the light of the case-law cited in paragraph 18 above.
21      Furthermore, even though the applicant stated in its application that the Board of Appeal infringed Article 8(1)(b) of Regulation 2017/1001 by finding that the goods at issue are identical, no argument was put forward with regard to that finding, made in paragraphs 40 to 43 of the contested decision.
22      Therefore, it is appropriate to apply the case-law according to which, where the goods or services covered by an earlier mark include the goods covered by the trade mark application, as in the present case, those goods or services are considered to be identical (see judgment of 5 February 2020, Globalia Corporación Empresarial v EUIPO – Touring Club Italiano (TC Touring Club), T‑44/19, not published, EU:T:2020:31, paragraph 91 and the case-law cited).
The comparison of the marks at issue
23      The applicant submits, in essence, that, when analysing the distinctive and dominant elements of the marks at issue, the Board of Appeal, first, did not correctly identify the relative weight of the elements constituting those marks and, second, consequently erred in finding, in the visual and phonetic comparison of those marks, that they were similar to an average degree.
24      EUIPO, supported by the intervener, disputes the applicant’s arguments.
25      According to the case-law, two marks are similar where, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects, namely the visual, phonetic and conceptual aspects (see judgment of 17 February 2011, Annco v OHIM – Freche et fils (ANN TAYLOR LOFT), T‑385/09, EU:T:2011:49, paragraph 26 and the case-law cited).
26      It is also apparent from the case-law that 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).
27      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 (judgment of 14 December 2017, N & C Franchise v EUIPO – Eschenbach Optik (OJO sunglasses), T‑792/16, not published, EU:T:2017:908, paragraph 29).
28      Therefore, before examining the comparison of the marks at issue, it is necessary to assess the applicant’s arguments as regards the distinctive and dominant elements of those marks.
The distinctive and dominant elements of the marks at issue
29      By its line of argument, first, the applicant submits that the English word ‘defend’ meaning, in essence, ‘protect someone or something from danger’ and which is common to the marks at issue, is a basic word contained in several dictionaries and well understood by the relevant non-English-speaking general public in the present case, on account of the broad exposure to that word both by means of numerous trade marks containing that word and by reason of its wide use in everyday life (series, films, games and so forth). As regards specifically the professional public, the word ‘defend’ is very similar to the word ‘defence’, which is used in the medical sector and, consequently, the professional part of the relevant public will necessarily understand the word ‘defend’. On the basis of the alleged understanding of that word by the general public and the professional public, the applicant submits that that word is descriptive of the goods at issue and, consequently, that its distinctive character is weak, as has also been established by the case-law. In that regard, the applicant submits that the case-law cited by the Board of Appeal, according to which, in the absence of evidence supporting that argument, that argument must be rejected, does not apply in the present case because it had provided evidence, unlike the factual situation at issue in the case which gave rise to that case-law.
30      Second, the Board of Appeal also found, wrongly, that the figurative element of the mark applied for was descriptive and, consequently, that it was devoid of distinctive character, therefore that element could not call into question the dominant character of the word elements. According to the applicant, the figurative element is, on the contrary, co-dominant. It is not descriptive but, at most, allusive, to the probiotic goods covered by the mark applied for. Consequently, the assessment of the distinctive and dominant elements of the marks at issue was carried out incorrectly by the Board of Appeal, which subsequently distorted the conclusions drawn on that basis.
31      EUIPO, supported by the intervener, disputes the applicant’s arguments.
32      In that connection, it should be recalled that, in determining 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 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, account should be taken, in particular, of the inherent characteristics of the element in question in the light of whether it is descriptive of the goods or services for which the mark has been registered (see judgment of 24 September 2015, Primagaz v OHIM – Reeh (PRIMA KLIMA), T‑195/14, not published, EU:T:2015:681, paragraph 41 and the case-law cited).
33      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).
34      In the present case, the Board of Appeal found that the figurative mark applied for (see paragraph 2 above) consisted of the word elements ‘probio’ and ‘defend’, written in blue letters, the word ‘defend’ being in bold. The figurative element depicting a stomach and an intestine within a shield is placed at the end of the composite word element ‘ProbioDefend’.
35      The Board of Appeal also noted that the earlier word mark consisted of a single word element ‘Defendyl’.
36      As a preliminary point, the Board of Appeal recalled that, even though the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details, the fact remains that, when perceiving a word sign, he or she will identify word elements which, for him or her, suggest a specific meaning or which resemble familiar words. In that connection as regards the mark applied for, the Board of Appeal found that there would be a mental dissection of the word element of that mark into ‘probio’ and ‘defend’, as also suggested by the different graphical representation of those elements and the irregular capitalisation of the element ‘defend’.
37      There is no need to call those assessments into question which, moreover, have not been disputed by the applicant.
38      Nor is there any reason to call into question the Board of Appeal’s assessment, which is also not disputed by the applicant, that the word element ‘Probio’ will be understood, throughout the European Union, as the prefix or abbreviated form of the word ‘probiotic’, on account of the similar equivalents in most of the languages of the European Union. In particular, the word ‘probiotic’ is an English word for ‘a substance that promotes the growth of organisms; [especially] a metabolite produced by one microorganism that promotes the growth of other microorganisms’, a food or a pill that contains good bacteria that may keep the person consuming them healthy. It is the stem or radical of some words in EU languages, such as probiotik (ПРОБИОТИК) in Bulgarian, probiotique in French, probiotisch in German, probiotiká (προβιοτικά) in Greek, probiotico in Italian, probiotikas in Lithuanian and probiótico in Spanish. That element is descriptive in relation to ‘probiotic supplements; anti-oxidant supplements; extracts of medicinal plants; vitamin preparations, mineral nutritional supplements, nutritional supplements’ in Class 5, as it merely informs about their probiotic effect.
39      By contrast, in the first place, the applicant disputes the Board of Appeal’s finding that the word ‘defend’, meaning ‘to protect someone or something from attack, injury, or harm’, would not be understood by the relevant non-English-speaking public. It thus disputes the Board of Appeal’s conclusion that none of the three alternative conditions from which it may be presumed that an English word is understood by a non-English-speaking public was satisfied in the present case. The applicant claims, in essence, that the first two alternative conditions are satisfied.
40      In that regard, it is apparent from the case-law that the understanding by a non-English-speaking public of an English word must be proved. That understanding may, however, be presumed provided, inter alia, first, that sufficient knowledge of that language on the part of the relevant public is a well-known fact or, second, that the word at issue is part of basic English vocabulary widely known to the non-English-speaking public or, third, that the word has an equivalent in the native language of the relevant public, enabling that public to establish a link between that word and its translation into the language concerned (see, to that effect, judgment of 18 September 2024, Fidia farmaceutici v EUIPO – Vorwarts Pharma (HYALERA), T‑497/23, not published, EU:T:2024:627, paragraph 40 and the case-law cited).
41      As regards the first alternative condition referred to in paragraph 40 above, the Board of Appeal found that, although the word ‘defend’ would be immediately understood by English-speaking and Spanish-speaking consumers, it would not be understood by the relevant Bulgarian-, Czech- and Hungarian-speaking public.
42      The applicant submits that the Court’s finding that a basic understanding of English by the general public in Scandinavian countries, the Netherlands, Finland or Cyprus is a well-known fact (judgment of 9 December 2010, Earle Beauty v OHIM (NATURALLY ACTIVE), T‑307/09, not published, EU:T:2010:509, paragraphs 26 and 27) also applies to other countries such as Bulgaria, Hungary, Latvia or the Czech Republic, where a significant part of the general public in those countries has, at the very least, a basic knowledge of English which enables it to understand and pronounce basic, everyday English words, such as the word ‘defence’.
43      In that regard, it should be noted that, since English is not the native language of the relevant public and since the knowledge of English by that public is not a well-known fact within the meaning of the case-law cited in paragraph 40 above, given that the Bulgarian, Czech and Hungarian public are taken into account by the Board of Appeal for the purpose of resolving the dispute precisely because of the lack of generally accessible information revealing such knowledge, it is not possible to apply by analogy the case-law cited by the applicant relating to the general public in the Scandinavian countries, the Netherlands, Finland or Cyprus.
44      As regards the second alternative condition referred to in paragraph 40 above, the Board of Appeal found that the word ‘defend’ could not be considered to belong to basic English understood throughout the European Union, since several dictionaries indicate that that word fell within the B1-B2 level of command of English. In that regard, the Board of Appeal concluded that the evidence, submitted by the applicant, relating to the common use of that word did not support the conclusion that it was widely known, since the examples relating to films, series or video games were neither well-known nor related to the goods at issue in Class 5.
45      The applicant disputes those considerations, claiming, in essence, that the presence of that word in four different dictionaries shows that it is commonly used in English, not only to designate, within a national or EU trade mark, goods or services, but also as an element in the titles of films, series and games.
46      In that regard, first, it should be noted at the outset that the number of dictionaries in which a word appears is not in itself such as to indicate that that word in question is widespread or widely used, especially as regards a public which does not speak the language of the word in question.
47      Second, as regards the examples of use of the word ‘defend’ in the titles of certain films, series or games, it must be stated that those examples have no connection with the goods in Class 5 or with the medical and paramedical fields. In accordance with the case-law, understanding of a word by a non-English-speaking public may be presumed only where the word in question is commonly used in relation to the goods or services concerned, with the result that the relevant public is capable of discerning their meaning on account of its frequent exposure to that word (see, to that effect, judgments of 18 January 2023, YAplus DBA Yoga Alliance v EUIPO – Vidyanand (YOGA ALLIANCE INDIA INTERNATIONAL), T‑443/21, not published, EU:T:2023:7, paragraph 75, and of 22 January 2025, Fly Persia and Barmodeh v EUIPO – Dubai Aviation (flyPersia), T‑30/23, not published, EU:T:2025:54, paragraphs 31 and 32). Similarly, no evidence has been adduced as to the well-known nature of the examples given by the applicant, such as ‘Defenders’, ‘Defending Jacob, ‘Defend The Kingdom’, in order to be able to infer that the relevant non-English-speaking public is aware of the word ‘defend’ in the present case. Furthermore, as observed by EUIPO, it should be noted that there is no information regarding the marketing of those films, games or series in the territories relevant to the present case, namely those of Bulgaria, the Czech Republic and Hungary.
48      As regards the third alternative condition referred to in paragraph 40 above, there is no need to call into question the Board of Appeal’s assessment, which, moreover, is not disputed by the applicant, that the translation of the word ‘defend’ in Bulgarian, Czech and Hungarian is very far removed from the words in those languages, respectively, ‘защитавам’, ‘bránit/hájit’ and ‘megóv’, with the result that it cannot be found that there is a link between that word and its translation in the language concerned.
49      Therefore, it is apparent from the foregoing that the Board of Appeal correctly concluded that none of the three alternative conditions from which it may be presumed that the word ‘defend’ will be understood by the relevant Bulgarian, Czech and Hungarian public, referred to in paragraph 40 above, was satisfied in the present case.
50      Thus, it is necessary to examine whether the Board of Appeal was right in finding that the evidence adduced by the applicant did not make it possible to establish that understanding.
51      First, as regards the evidence relating to the use of the word ‘defend’ in a multitude of national trade marks and EU trade marks, it must be held, as the Board of Appeal found, that, in accordance with the case-law, in order to prove that the relevant public has actually been exposed to a word in a foreign language in the territory in which that public is established, the production of a mere list of registered marks in that territory is not sufficient, since that list, in itself, cannot prove actual use of the marks referred to therein (see, to that effect, judgment of 17 February 2017, Batmore Capital v EUIPO – Univers Poche (POCKETBOOK),  T‑596/15, not published, EU:T:2017:103, paragraphs 83 and 84 and the case-law cited). Even though the word ‘defend’ can be identified on the examples of trade marks adduced by the applicant, no information is available on the actual use of those marks in the Bulgarian, Czech and Hungarian territories, that is to say, on the actual exposure of the relevant Bulgarian, Czech and Hungarian public to those marks and, indirectly, to that word.
52      Moreover, it should be noted, as observed by EUIPO, that the relevance of that evidence is limited, it being understood that, moreover, the classification of each of the marks referred to on that list as a national trade mark or as an EU trade mark is not specified. That evidence must therefore be disregarded.
53      Second, the applicant also disputes the Board of Appeal’s assessments by which it disregarded the evidence intended to demonstrate the wide exposure of the relevant Bulgarian, Czech and Hungarian public to the word ‘defend’, consisting of screenshots of the applicant’s goods bearing the words ‘defend’ or ‘defence’ and sold on Bulgarian, Czech and Latvian (but not Hungarian) websites. The Board of Appeal rejected that evidence, having regard to the fact that no information had been provided on the number of visitors to those websites or on the volume of sales, which did not make it possible to assess the extent of the relevant public’s exposure to the word ‘defend’. The applicant submits in that regard that ‘[EUIPO’s] ex officio examination is restricted to well-known facts … which excludes facts of a highly technical nature’, such as the extent to which websites are visited or the volume of sales. Thus, the applicant disputes the Board of Appeal’s finding that those screenshots do not demonstrate that a non-negligible part of the Bulgarian-, Czech- and Hungarian-speaking public (and even the Latvian public) was exposed to the word ‘defend’ as a reference to ‘protection against illness or harm’ and, therefore, that it will perceive that word as devoid of distinctive character with regard to the goods at issue. According to the applicant, that evidence should not be disregarded, as decided by the Board of Appeal, because it shows that the relevant non-English-speaking public in question has been exposed, in a well-known manner, to widespread use of the word ‘defend’ for goods in Class 5, with the result that that public is accustomed to trade marks containing that word.
54      In that regard, as has been pointed out in paragraphs 51 and 52 above, actual use of a mark on the market cannot be presumed. The same is true of the exposure of the relevant public to a word in a foreign language through its presence in trade marks actually used in the territory in which that public is established. Accordingly, the applicant is not justified in claiming that visits to websites or the volume of sales are irrelevant for the purpose of analysing whether, in fact, a non-negligible part of the relevant public was exposed to goods the designation of which contained the word ‘defend’ as a reference to ‘protection against illness or harm’ and, therefore, whether that part of the public will perceive that word as devoid of distinctive character with regard to the goods at issue (judgment of 18 September 2024, HYALERA, T‑497/23, not published, EU:T:2024:627, paragraph 58).
55      Third, as regards the case-law and the decisions of the Board of Appeal on the basis of which the applicant relies on the existence of an established finding that the word ‘defend’ is descriptive for the goods in Class 5, it is sufficient to note that, in none of the cases cited by the applicant, the relevant public is identical to the non-English-speaking, Bulgarian, Czech and Hungarian public, which is relevant in the present case. Consequently, no analogy can be drawn between the case-law relied on by the applicant and the present case.
56      It follows from the foregoing that the applicant has not established that the Board of Appeal made an error of assessment in finding that the word element ‘defend’, which is common to the signs at issue, had no meaning for at least a non-negligible part of the relevant Bulgarian-, Czech- and Hungarian-speaking public as regards the goods at issue and that it therefore had a normal degree of distinctiveness.
57      That conclusion is not called into question by the applicant’s argument that, for the professional part of the relevant public, the word ‘defend’ is, in essence, necessarily descriptive, it being understood that that part of the relevant public will know the words ‘defence’ or ‘defensive’ as medical terms and will immediately associate them with the word ‘defend’.
58      In that regard, it should be borne in mind that, in addition to the three alternative conditions referred to in paragraph 40 above, there is a fourth alternative condition, according to which understanding of a word by a non-English-speaking public may be presumed, in the case of a professional public, where the use of English, as in the present case, is common or usual in the sector in question (judgment of 6 April 2022, Mandelay v EUIPO – Qx World (QUEST 9), T‑516/20, not published, EU:T:2022:227, paragraph 47) or where the word forms part of the language of medical science, as in the present case, namely English (judgment of 8 July 2004, Telepharmacy Solutions v OHIM (TELEPHARMACY SOLUTIONS), T‑289/02, EU:T:2004:227, paragraph 37).
59      In the present case, while it is true that the Board of Appeal did not expressly take into consideration the understanding of the word at issue by the professional part of the relevant public, it nevertheless concluded, in paragraph 61 of the contested decision, that the common word element ‘defend’ had no meaning for at least a non-negligible part of the relevant public. In that sense, the applicant is justified in claiming that that word will be understood ‘by the English part of the public and a minor part of the non-English-speaking part of the public’. However, that argument does not contradict the Board of Appeal’s findings that that word will not be understood by a non-negligible part of the relevant non-English-speaking public. Therefore, the Board of Appeal did not make an error of assessment capable of calling into question the reasoning or solution set out in the contested decision, since the Board of Appeal’s assessments were correctly based on the non-negligible part of the relevant public which does not understand the word ‘defend’, with the exception of the professional part of that public. In the latter regard, it should be borne in mind that, according to the case-law, a finding that there is a likelihood of confusion for a non-negligible part of the relevant public is sufficient to uphold an opposition brought against an application for registration (see judgment of 7 June 2023, Brooks England v EUIPO – Brooks Sports (BROOKS ENGLAND), T‑63/22, not published, EU:T:2023:312, paragraph 76 and the case-law cited).
60      As regards the relative weight of the figurative element of the mark applied for, the Board of Appeal found that the font used in the mark applied for was standard and did not in any way alter the perception or understanding of the word elements, with the result that that font had no impact on the distinctive character of that mark. There is no reason to call into question that assessment, which, moreover, is not disputed by the applicant.
61      By contrast, in the second place, the applicant disputes the assessment that the figurative element representing a stomach and an intestine within a shield is descriptive of the intended purpose of the goods at issue. According to the applicant, that element is not descriptive but, at most, allusive of certain probiotic goods covered by the mark applied for. Consequently, the inherent distinctiveness of that element is normal. Therefore, the figurative element is co-dominant and, at the same time, enables the marks at issue to be distinguished.
62      In that regard, it should be borne in mind, as a preliminary point, that, according to the case-law, where a figurative mark is composed of word and figurative elements, the former are, in principle, more distinctive than the latter, because the average consumer will more easily refer to the goods in question by quoting their name than by describing the figurative element of the mark (judgment of 14 July 2005, Wassen International v OHIM – Stroschein Gesundkost (SELENIUM-ACE), T‑312/03, EU:T:2005:289, paragraph 37).
63      It also follows from the case-law that the figurative elements of a figurative mark are not necessarily the dominant components of that mark (judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS), T‑247/12, EU:T:2014:258, paragraph 36), since the assessment of dominant character depends, in particular, on an assessment of the intrinsic qualities of each component making up the sign by comparing them with those of the other components making up the same sign (judgment of 6 April 2022, Moio v EUIPO – Paul Hartmann (moio.care), T‑276/21, not published, EU:T:2022:221, paragraph 66). 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, T‑6/01, EU:T:2002:261, paragraph 35).
64      In the present case, the figurative element representing a stomach and an intestine within a shield merely indicates to the relevant non-English-speaking public that the probiotics will act on those organs, while the shield implies that that action will protect those organs. The figurative element is the same size as the letters of the preceding composite word element and in colours that are hardly distinguishable from those characterising that word element. Similarly, its position at the end of the composite word element does not suggest a desire to draw the consumers’ attention to the figurative element in particular, but rather to the composite word element preceding it.
65      Thus, even if, as the applicant submits, the figurative element constitutes a metaphor of the journey of a probiotic in the human body, it must be held that, in order to classify an element, whether figurative or word, as descriptive, it is sufficient that in at least one of its possible meanings, the element at issue designates a characteristic of the goods or services at issue. That is the case here, since, in the context of the goods at issue, the figurative element designates not only the organs on which the goods covered by the mark applied for will act and therefore the intended purpose of the goods in question, but also the fact that those goods will have a protective effect on those organs.
66      Therefore, in the light of the foregoing, it must be held that the Board of Appeal correctly classified the figurative element of the mark applied for as descriptive for the relevant non-English-speaking public.
67      It follows from all of the foregoing that the applicant’s arguments relating to the understanding of the word ‘defend’ and the co-dominant position of the figurative element of the mark applied for must be rejected as unfounded, since the Board of Appeal correctly identified the element ‘Probio’ and the figurative element of the mark applied for as being descriptive, as well as the element ‘defend’ as being distinctive within the marks at issue for a non-negligible part of the relevant non-English-speaking public.
The visual, phonetic and conceptual comparison of the marks at issue
68      The applicant submits, in essence, that the marks at issue ‘ProbioDefend’ and ‘Defendyl’ have in common, visually and phonetically, only the letters ‘D’, ‘E’, ‘F’, ‘E’, ‘N’ and ‘D’ and their sounds, whereas they differ in their beginnings and endings and in the figurative element of the mark applied for. According to the applicant, the first and last syllables of the marks at issue are very different (‘pro’/‘def’ and ‘fend’/‘dyl’) and create a very strong rhythm and sound enabling those marks to be distinguished. Similarly, according to the applicant, where the marks at issue have in common, as in the present case, a descriptive and weakly distinctive element, namely ‘defend’, the assessment of the likelihood of confusion must focus on the impact of the other different elements of which they consist. Consequently, the applicant submits that, having regard to the weak or non-existent distinctive character of the common element ‘defend’, to the differences between the syllables at the beginning and the end, and to the strong differences in the structures of the marks at issue, the degree of visual and phonetic similarity is low, or even non-existent.
69      EUIPO, supported by the intervener, disputes the applicant’s line of argument.
70      In the contested decision, the Board of Appeal found that the marks at issue were visually and phonetically similar to an average degree, whereas, conceptually, they were different. Visually and phonetically, it found that those marks coincided in the spelling and sound of the sole distinctive element ‘defend’, whereas those marks differed in the descriptive and non-distinctive word element ‘Probio’ of the mark applied for and the ending ‘yl’ of the earlier mark. Visually, the marks at issue also differed in the figurative element and the font of the mark applied for, which were devoid of distinctive character. Conceptually, the Board of Appeal found that, since the earlier mark had no meaning for the relevant Bulgarian, Czech and Hungarian public, it had to be considered that there were differences between the marks at issue, the mark applied for having, by contrast, a semantic content relating to probiotics by means of the element ‘Probio’ (see paragraph 38 above).
71      In the first place, as regards the visual and phonetic similarities of the signs at issue, it should be borne in mind that, according to the case-law, where a figurative mark containing word elements is compared visually to a word mark, the marks are held to be visually similar if they have a significant number of letters in the same position in common and if the word element of the figurative sign is not highly stylised, notwithstanding the graphic representation of the letters in different fonts, in italics or in bold, in lower case or in upper case, or in colour (see, to that effect, judgment of 9 September 2019, SLL Service v EUIPO – Elfa International (LUMIN8), T‑680/18, not published, EU:T:2019:565, paragraph 32 and the case-law cited). Thus, in the present case, the marks at issue have six identical letters placed in the same order, ‘D’, ‘E’, ‘F’, ‘E’, ‘N’ and ‘D’, and eight different letters, namely the initial word element ‘Probio’ of the mark applied for and the ending ‘yl’ of the earlier mark.
72      Similarly, as regards the visual and phonetic comparison, it must be borne in mind that, according to the case-law, the greater or lesser degree of distinctiveness of the elements common to the mark applied for and an earlier mark is one of the relevant factors in assessing the similarity of those signs (see judgment of 26 March 2015, Royal County of Berkshire Polo Club v OHIM – Lifestyle Equities (Royal County of Berkshire POLO CLUB), T‑581/13, not published, EU:T:2015:192, paragraph 41 and the case-law cited).
73      Furthermore, it should be noted that the descriptive, non-distinctive or weakly distinctive elements of a composite trade mark generally have less weight in the analysis of the similarity between the signs than the elements of greater distinctiveness, which are also more able to dominate the overall impression created by that mark (see, to that effect, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 53 and the case-law cited).
74      As has been stated in paragraph 67 above, the element ‘defend’ within the marks at issue is the only element which has inherent distinctive character for a non-negligible part of the relevant non-English-speaking public, unlike the word element ‘Probio’ and the figurative element of the mark applied for, which are descriptive and devoid of distinctive character. Consequently, those marks coincide visually and phonetically in respect of an element with an average degree of distinctiveness, whereas they differ visually and phonetically in respect of descriptive word and figurative elements which are devoid of distinctive character in relation to the goods at issue, as well as in respect of the ending ‘yl’ of the earlier mark.
75      Furthermore, contrary to what the applicant claims, there is no absolute rule that signs must be regarded as different if an identical group of letters is preceded by different letters (see, to that effect and by analogy, judgment of 18 December 2008, Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 92). Thus, the fact that the beginning of the mark applied for differs from that of the earlier mark because of the presence of the descriptive word element ‘Probio’ is not in itself sufficient to conclude that there is no visual and phonetic similarity, since the marks have in common the sole distinctive element of which they consist, namely ‘defend’, the distinctive character of which is average.
76      Therefore, in the light of the foregoing, the Board of Appeal correctly found that, in the present case, the signs at issue were visually and phonetically similar to an average degree.
77      In the second place, as regards the conceptual similarity of the signs at issue, there is no need to call into question the Board of Appeal’s assessment, which, moreover, is not disputed by the applicant, that there are differences between those signs, since the earlier mark has no semantic content for the relevant non-English-speaking public, unlike the mark applied for.
78      Consequently, the applicant’s arguments must be rejected as unfounded and it must be concluded that the Board of Appeal correctly found that the marks at issue were visually and phonetically similar to an average degree, whereas there are conceptual differences between those marks.
The distinctive character of the earlier mark
79      The applicant submits, in essence, that the word element ‘DEFENDYL’ constituting the earlier word mark is devoid of distinctive character for the relevant public as regards the goods at issue. That claim by the applicant is based essentially on its line of argument relating to the understanding of the word ‘defend’ by the relevant non-English-speaking public, which has been rejected in paragraphs 42 to 59 above. In addition, the applicant submits that the suffix ‘dyl’ is one of the international non-proprietary names of pharmaceutical substances, used to create the name of the substituted compound using the name of the parent compound and, in that sense, that that suffix is devoid of distinctive character for the professional part of the relevant public.
80      EUIPO, supported by the intervener, disputes the applicant’s arguments.
81      In the present case, the Board of Appeal found, in paragraph 75 of the contested decision, that the inherent distinctive character of the earlier mark was average, given that it does not convey any semantic meaning for the relevant non-English-speaking public and, therefore, has no connection with the goods at issue in Class 5.
82      In that regard, as has been pointed out in paragraph 79 above, an essential part of the applicant’s line of argument has already been rejected, in paragraphs 42 to 59 above, in the light of the lack of tangible evidence showing that the relevant non-English-speaking public understands the English word ‘defend’, with the exception of the professional part of that public. That finding must therefore also be upheld with regard to the determination of the inherent distinctive character of the earlier mark.
83      As regards the applicant’s line of argument relating to the suffix ‘dyl’, it must be stated that that line of argument concerns only the professional part of the relevant public, with the result that the conclusion drawn in paragraph 75 of the contested decision (see paragraph 81 above), remains valid for a non-negligible part of the relevant public which does not understand the word ‘defend’ (see paragraph 59 above).
84      Therefore, the applicant’s line of argument must be rejected as unfounded and it must be held that the Board of Appeal, in the contested decision, correctly found that the earlier mark had an average degree of inherent distinctiveness for a non-negligible part of the relevant public which does not understand the word ‘defend’, namely the Bulgarian, Czech and Hungarian general public.
The likelihood of confusion
85      The applicant submits, in essence, that there is no likelihood of confusion between the marks at issue. According to the applicant, if the Board of Appeal had taken into account all the circumstances of the case, it would not have failed, as in the present case, to carry out a full global assessment. The Board of Appeal should have taken into account the lack of distinctive character of the earlier mark, the knowledge of the relevant English-speaking or non-English-speaking public of the meaning of the word ‘defend’, and the characteristics of the marks at issue and, in particular, ‘[the] important visual, phonetic and conceptual, differences between them’. According to the applicant, those differences eliminate any likelihood of confusion.
86      EUIPO, supported by the intervener, disputes the applicant’s arguments.
87      According to settled case-law, 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 (judgment of 29 September 1998, Canon, C‑39/97, EU:C:1998:442, paragraph 17; see also judgment of 15 March 2007, T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 35 and the case-law cited).
88      It is also apparent from the case-law that the average consumer only rarely has the chance to make a direct comparison between the different signs but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (see judgment of 26 April 2007, Alcon v OHIM, C‑412/05 P, EU:C:2007:252, paragraph 60 and the case-law cited). That finding has also been confirmed with regard to a public with a high level of attention (see judgment of 6 November 2024, CFA Institute v EUIPO – Global Chartered Controller Institute (CCA CHARTERED CONTROLLER ANALYST CERTIFICATE), T‑561/22, not published, EU:T:2024:777, paragraph 176 and the case-law cited).
89      In the contested decision, the Board of Appeal found that the goods at issue were identical, that the earlier mark had an average degree of inherent distinctiveness and that, for the relevant public with a high level of attention and consisting of professionals and the Bulgarian, Czech and Hungarian general public, the marks at issue had an average degree of visual and phonetic similarity and were conceptually different, given that the distinctive element ‘defend’, common to those marks, had no meaning. The Board of Appeal also noted that the distinctive element ‘defend’, which constitutes six of the eight letters of the earlier mark, was reproduced within the mark applied for. Therefore, the Board of Appeal concluded that a likelihood of confusion could not be ruled out, given that the most distinctive element of the mark applied for was entirely reproduced in the earlier mark, corresponding to six of its eight letters, and that the differences between the signs were limited to non-distinctive or secondary elements. Similarly, according to the Board of Appeal, it is perfectly conceivable that the mark applied for could be perceived by the relevant public as a sub-brand or a variant of the earlier mark, created for a new line of goods in Class 5 and related to nutritional supplements.
90      In the present case, it should be noted that the applicant’s arguments seeking to challenge the global assessment of the likelihood of confusion carried out by the Board of Appeal are the same as those which it submitted against the Board of Appeal’s assessments relating to the identification of the distinctive and dominant elements within the marks at issue, the similarity of the signs at issue and the distinctive character of the earlier mark. It should be borne in mind that those arguments have already been rejected and that the submission of the same arguments as regards the global assessment of the likelihood of confusion cannot succeed either.
91      In the light of the fact that the goods are identical, that the marks at issue are visually and phonetically similar to an average degree, and despite their conceptual dissimilarity, since the single word element of the earlier mark is reproduced almost entirely in the mark applied for, and the distinctiveness of the earlier mark is average, a likelihood of confusion, within the meaning of Article 8(1)(b) of Regulation 2017/1001, cannot be ruled out, even for the public with a high level of attention. According to the case-law, consumers only very rarely have the chance to compare the different marks and must place their trust in the imperfect memory they have of them, even if they pay heightened attention (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer, C‑342/97, EU:C:1999:323, paragraph 26).
92      Accordingly, the applicant’s line of argument must be rejected as unfounded.
93      In the light of all the foregoing considerations, since the single plea in law relied on by the applicant in support of the form of order sought by it must be rejected, the action must be dismissed in its entirety.
Costs
94      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.
95      Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the intervener, in accordance with the form of order sought by the intervener. By contrast, since EUIPO has applied for the applicant to be ordered to pay the costs only in the event that a hearing is held, EUIPO must, in the absence of a hearing, be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Nutris We care about you, SL to bear, in addition to its own costs, those incurred by Medis, farmacevtska družba, d.o.o.;
3.      Orders the European Union Intellectual Property Office (EUIPO) to bear its own costs.
Buttigieg
Kancheva
Tichy-Fisslberger
Delivered in open court in Luxembourg on 11 February 2026.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.