JUDGMENT OF THE GENERAL COURT (First Chamber)
29 October 2025 (*)
( EU trade mark – Opposition proceedings – Application for EU figurative mark THERMATEC – Earlier EU figurative mark Termatek – Relative ground for refusal – Likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑611/24,
Homestar sp. z o.o., established in Katowice (Poland), represented by P. Gwoździewicz-Matan, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by E. Lobotková and D. Stoyanova-Valchanova, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
General Sanitary, SLU, established in Cerdanyola del Vallès (Spain),
THE GENERAL COURT (First Chamber),
composed, at the time of the deliberations, of M. Brkan, acting as President, I. Gâlea (Rapporteur) and S.L. Kalėda, 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, Homestar sp. z o.o., seeks the annulment and alteration of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 27 September 2024 (Case R 856/2024-1) (‘the contested decision’).
Background to the dispute
2        On 4 November 2022, 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, following the restriction made in the course of proceedings before EUIPO, Classes 11 and 37 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, for each of those classes, to the following description:
–        Class 11: ‘Heat pumps; heat pumps for energy processing; bath installations; installations for central heating; gas fuelled central heating installations; HVAC systems (heating, ventilation and air conditioning) (except for vehicles); extractor units [ventilation]; air inductor apparatus [ventilation]’;
–        Class 37: ‘HVAC (heating, ventilation and air conditioning) installation, maintenance and repair (except for vehicles)’.
4        On 28 November 2022, General Sanitary, SLU filed a notice of opposition to registration of the mark applied for in respect of all the goods and services referred to in paragraph 3 above.
5        The opposition was based on the earlier EU figurative mark reproduced below:
6        The goods covered by the earlier mark were in Classes 9 and 11, corresponding, for each of those classes, to the following description:
–        Class 9: ‘Resistances, electric; thermostats; heat regulating apparatus’;
–        Class 11: ‘Radiators [heating]; air-conditioning apparatus; air-conditioning installations; fittings for sanitary purposes; sanitary and bathroom installations and plumbing fixtures; water heaters; electric boilers; gas fired water heaters’.
7        The grounds relied on in support of the opposition were those set out in Article 8(1)(a) and (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 26 February 2024, the Opposition Division upheld the opposition on the basis of Article 8(1)(b) of Regulation 2017/1001 in respect of all the goods and services in question.
9        On 23 April 2024, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division.
10      By the contested decision, the Board of Appeal dismissed the appeal. It found that the relevant public displayed a higher than average level of attention, the goods and services concerned being directed at both the professional public and the general public. As regards the comparison of the goods and services in question, the Board of Appeal found that they were identical or at least similar. It found that the signs at issue had a high degree of visual similarity, were phonetically identical and that the degree of conceptual similarity had a limited impact as it rested on common elements with a low degree of distinctiveness. In the light of all of those factors and taking into account the normal degree of distinctiveness of the earlier mark, the Board of Appeal found that there was a likelihood of confusion between the marks at issue, at least for a non-negligible part of the relevant Spanish and Italian public.
Forms of order sought
11      The applicant claims that the Court should:
–        annul the contested decision and refer the case back to EUIPO for reconsideration;
–        alter the contested decision by declaring that there are no relative grounds for refusal of registration of the mark applied for in respect of all the goods and services in Classes 11 and 37 and that that mark should be registered in its entirety;
–        order EUIPO to pay the costs.
12      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 Court’s jurisdiction with regard to the second head of claim
13      As regards the second head of claim, it must be noted that it seeks a declaration from the Court that there are no relative grounds for refusal of registration and that the mark applied for should be registered. In that regard, suffice it to recall that, when exercising judicial review of legality under Article 263 TFEU, the Court has no jurisdiction to issue declaratory or confirmatory judgments (see, to that effect, order of 9 December 2003, Italy v Commission, C‑224/03, not published, EU:C:2003:658, paragraphs 20 and 21, and judgment of 4 February 2009, Omya v Commission, T‑145/06, EU:T:2009:27, paragraph 23). It follows that the second head of claim must be rejected on the ground of lack of jurisdiction.
The evidence submitted for the first time before the Court
14      EUIPO disputes the admissibility of Annex A.6 to the application, which includes a document drawn up by the applicant explaining the technical and functional differences between a heat pump and an air conditioner.
15      In that regard, it must be borne in mind that the purpose of an action brought 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).
16      Therefore, it is not the Court’s function to review the facts in the light of evidence 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 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).
17      In those circumstances, it must be held that Annex A.6 to the application was not submitted by the applicant during the proceedings before EUIPO and is therefore inadmissible.
Substance
18      The applicant relies, in essence, on a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. It complains, in essence, that the Board of Appeal made errors of assessment when comparing the goods and services in question and that it incorrectly found that there was a likelihood of confusion.
19      EUIPO disputes the applicant’s arguments.
20      Article 8(1)(b) of Regulation 2017/1001 provides that, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for must not be registered if, because of its identity with, or similarity to, the earlier trade mark and the identity or similarity of the goods or services covered by the trade marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier trade mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark.
21      The risk that the public may believe that the goods or services in question come from the same undertaking or from economically linked undertakings constitutes a likelihood of confusion. The likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 32 and the case-law cited).
22      For the 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
23      The Board of Appeal found that the goods and services in question were directed mainly at a professional public, but also at the general public. Accordingly, it found that the level of attention was higher than average, in particular as regards the professional public. It based its assessment on the Italian and Spanish public.
24      The applicant does not dispute those assessments of the Board of Appeal.
The comparison of the goods and services in question
25      In assessing the similarity of the goods and services in question, 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).
26      In the present case, the Board of Appeal found, first, that the goods in Class 11 covered by the mark applied for were at least similar to the goods covered by the earlier mark. It considered that an air-conditioning system was used not only for cooling but also for heating. As regards ‘heat pumps’ and ‘heat pumps for energy processing’, the Board of Appeal stated that they were used to transfer heat energy from a source of heat to a heat sink and that those goods often formed part, or were a feature, of air-conditioning systems. It concluded that those goods were at least similar, since they were aimed at the same relevant public, that they shared the same distribution channels and that they had the same usual origin. Second, the Board of Appeal found that the ‘bath installations’ covered by the mark applied for appeared identically in both lists, that the ‘installations for central heating; gas fuelled central heating installations’ covered by the mark applied for partially coincided with the ‘gas fired water heaters’ covered by the earlier mark and that the ‘HVAC systems (heating, ventilation and air conditioning) (except for vehicles); extractor units [ventilation]; air inductor apparatus [ventilation]’ covered by the mark applied for overlapped with the ‘air-conditioning installations’ covered by the earlier mark and that they were, therefore, identical. Lastly, as regards the services in Class 37 covered by the mark applied for, the Board of Appeal found that they were similar to the goods in Class 11 covered by the earlier mark.
27      First, the applicant complains that the Board of Appeal was wrong to find that the ‘heat pumps’ and ‘heat pumps for energy processing’ in Class 11 were at least similar to air-conditioning apparatus. It submits that the Board of Appeal confined itself to comparing a single technical function, namely the ability to transfer heat, without taking into account the purpose and functional differences between the devices. In that regard, the applicant states that the primary purpose of a heat pump is to heat, using thermal energy from various sources, whereas the purpose of air-conditioning apparatus is to cool, by transferring energy from the air to the air. In addition, selecting a heat pump involves reviewing the product specifications, such as the brand, technical parameters or installation requirements.
28      Second, the applicant disputes the similarity, found by the Board of Appeal, between the services in Class 37 covered by the mark applied for, namely ‘HVAC (heating, ventilation and air conditioning) installation, maintenance and repair (except for vehicles)’ and the air-conditioning apparatus in Class 11 covered by the earlier mark, claiming that they are different in nature, have different purposes and distribution channels and that there is a complete lack of complementarity between them.
29      EUIPO disputes the applicant’s arguments.
30      First, it should be noted that, contrary to what the applicant claims, the Board of Appeal did not confine itself to a comparison of the goods in question solely on the basis of their heat transfer function. The Board of Appeal found, in paragraph 29 of the contested decision, that the goods in question were directed at the same relevant public, shared the same distribution channels and had the same usual origin. Moreover, those findings are not disputed by the applicant.
31      Consequently, the applicant’s argument that the Board of Appeal based its assessment on a single technical function of the goods in question must be rejected.
32      Second, it must be noted, as the Board of Appeal has observed, that heat pumps are used to transfer heat energy from a source of heat to a ‘heat sink’, an element which often forms part of air-conditioning systems. Furthermore, a factor which should be borne in mind and which is not disputed by the applicant is that air-conditioning apparatus is also intended to heat, not merely to cool. Accordingly, the applicant cannot complain that the Board of Appeal made an error of assessment by failing to take into account the different purposes of the goods in question.
33      Third, it is true, as the applicant submits, that selecting a heat pump involves reviewing the product specifications and that, if an error were to be made as to the specific parameters, the heat pump would not be able to fulfil its function. However, that aspect does not fall within the scope of the examination of the similarity of the goods. As follows from the case-law, the attention which the consumer must display when purchasing such a product is not relevant when assessing the similarity of the goods, but must be taken into account when carrying out the global assessment of the likelihood of confusion (see, to that effect and by analogy, judgment of 7 June 2023, Laboratorios Ern v EUIPO – BRM Extremities (BIOPLAN), T‑543/22, not published, EU:T:2023:320, paragraph 41).
34      Fourth, irrespective of the admissibility of the applicant’s arguments, put forward for the first time before the Court, to the effect that the services in Class 37 differ in nature from air-conditioning apparatus in that they are services provided by professionals for the installation, maintenance and repair of air-conditioning apparatus, those arguments must be rejected as unfounded.
35      The mere fact that they are services and that air-conditioning apparatus constitutes goods cannot from the outset rule out that there is some similarity. As recalled in paragraph 25 above, in assessing the similarity of the goods or services in question, all the relevant factors relating to them should be taken into account, including, inter alia, their complementarity.
36      In that regard, it must be noted that, according to settled case-law, complementary goods or services are those between which there is a close connection, in the sense that one is indispensable or important for the use of the other with the result that consumers may think that the same undertaking is responsible for manufacturing those goods or for providing those services (see judgment of 8 June 2022, Deutschtec v EUIPO – Group A (HOLUX), T‑738/20, not published, EU:T:2022:343, paragraph 49 and the case-law cited).
37      As the applicant acknowledges, although the purpose of ‘HVAC … installation, maintenance and repair’ services differs from that of air-conditioning apparatus, they nevertheless make it possible to ensure the proper operation of HVAC systems (heating, ventilation and air conditioning), which are included in ‘air-conditioning apparatus’ in Class 11. Therefore, there is functional complementarity between those services and those goods.
38      Furthermore, as the Board of Appeal correctly found in the contested decision, those goods and services are directed at the same public and may be offered through the same distribution channels. Contrary to what the applicant claims, ‘HVAC … installation, maintenance and repair’ services may also be distributed by the manufacturers of air-conditioning apparatus or by wholesalers and online retailers.
39      Therefore, the Board of Appeal did not make an error of assessment in finding that the ‘HVAC … installation, maintenance and repair’ services in Class 37 were similar to the air-conditioning apparatus in Class 11.
The comparison of the signs at issue
40      The Board of Appeal found that the verbal elements of the signs at issue were the most distinctive elements, unlike the figurative elements, to which no great significance would be attributed given that they have, at most, a low degree of distinctiveness. As regards the elements ‘therma’ and ‘terma’, it found them to have a low degree of distinctiveness due to their allusive character. It also found that the elements ‘tec’ and ‘tek’ had a low degree of distinctiveness, since they would be perceived as referring to the terms ‘tecnologia’ in Italian, and ‘tecnología’ in Spanish, thus describing the properties of the goods and services in question.
41      Next, the Board of Appeal found that the signs at issue were visually similar to a high degree and phonetically identical. As regards the conceptual comparison, the Board of Appeal found that it had a limited impact, since it rested on elements having a low degree of distinctiveness.
42      The applicant argues that the significant visual and phonetic differences should be the main focus of the assessment of the likelihood of confusion. However, it is unable to specify which are the significant visual and phonetic differences and confines itself to that assertion alone. Therefore, it must be held that the applicant’s claims are not substantiated and that the Board of Appeal’s assessments in that regard have not been properly contested.
The likelihood of confusion
43      According to settled case-law of the Court of Justice, the existence of a likelihood of confusion depends on numerous elements, in particular the recognition of the trade mark on the market, the association which can be made with the used or registered sign, and the degree of similarity between the trade mark and the sign and between the goods or services identified. The likelihood of confusion must therefore be appreciated globally, taking into account all the relevant factors of the particular case (see, by analogy, judgment of 12 June 2019, Hansson, C‑705/17, EU:C:2019:481, paragraph 41 and the case-law cited).
44      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 and 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).
45      The Board of Appeal found that there was a likelihood of confusion between the marks at issue. It recalled that the goods and services in question were similar or identical, that the signs at issue were phonetically identical and had a high degree of visual similarity and that the conceptual comparison had a limited impact. It also stated that the earlier mark had a normal degree of distinctiveness, given that the word ‘thermotechnology’ did not exist as such. Furthermore, as regards the low degree of distinctiveness of the common element and of the earlier mark as a whole, it noted that this did not preclude at the outset a finding of a likelihood of confusion and that the phonetic identity and high degree of visual similarity could not be ignored, since the likelihood of confusion could then exist only where there was a complete reproduction of the earlier mark. Consequently, the Board of Appeal concluded that even the high level of attention of the relevant public was insufficient to rule out the possibility that even the professional public might believe that the goods and services in question came from the same undertaking or from economically linked undertakings.
46      The applicant submits, in essence, that, in the case of marks with common elements which have a low degree of distinctiveness, the likelihood of confusion is considerably reduced and it is the significant visual and phonetic differences that should be the main focus when assessing the likelihood of confusion. Thus, in its view, the Board of Appeal erred in finding that even a high level of attention on the part of the relevant public did not eliminate the likelihood of confusion. In that regard, the applicant submits that the process for purchasing heat pumps involves careful decision-making since they are expensive, and that buyers attach greater importance to brands when making high-cost investments. Furthermore, the applicant submits that brand reputation plays a crucial role in building consumer trust and that, consequently, the likelihood of confusion as to the origin of the goods in that category is minimal.
47      EUIPO disputes the applicant’s arguments.
48      First, the applicant’s argument, to the effect that the likelihood of confusion is reduced in the case of marks consisting of elements with a low degree of distinctiveness and that the visual and phonetic differences should be the main focus of the global assessment of the likelihood of confusion, must be rejected.
49      In accordance with the case-law cited in paragraph 44 above, the likelihood of confusion must be assessed globally, taking into account all the factors relevant to the circumstances of the case, thus ensuring that predominance is not given to certain factors.
50      In addition, it is true that it has already been held that, where the earlier trade mark and the sign whose registration is sought coincide in an element that is weakly distinctive with regard to the goods or services at issue, the global assessment of the likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001 does not often lead to a finding that such likelihood exists (see judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 53 and the case-law cited).
51      However, the global assessment of the likelihood of confusion must take into account all factors relevant to the circumstances of the case, with the result that a finding that there is no likelihood of confusion cannot, because of the interdependence of the relevant factors in that regard, be ruled out in advance and in any event (see judgment of 18 June 2020, Primart v EUIPO, C‑702/18 P, EU:C:2020:489, paragraph 55 and the case-law cited).
52      In the present case, it must be recalled that the Board of Appeal found that the signs at issue were visually similar to a high degree and phonetically identical, assessments which, moreover, have not been called into question by the applicant (see paragraph 42 above). Therefore, the applicant is not in a position to demonstrate which are the significant visual and phonetic differences.
53      It is true that the signs at issue coincide in elements that have a low degree of distinctiveness (see paragraph 40 above) for the purposes of the case-law cited in paragraph 50 above. Nevertheless, in the light of all the factors relevant to the present case, it cannot be asserted that the visual differences, which are not sufficiently striking or significant to enable the relevant public to distinguish clearly the marks at issue, allow for all likelihood of confusion to be ruled out. Thus, it must be held, as EUIPO has stated, that the low degree of distinctiveness of the elements of the signs at issue or of the earlier mark does not eliminate a likelihood of confusion, because of the striking similarities between the marks.
54      Second, the applicant submits that the cost involved in heat pumps is higher than that for air-conditioning systems, both in terms of purchase price and installation cost, and that buyers will pay particular attention to brands, taking into account not only the technical parameters of the products, but also the reputation of the manufacturers and the quality associated with them. Therefore, in the applicant’s view, a high level of attention significantly reduces the likelihood of confusion.
55      In that regard, it must be noted that it is true that the level of attention of the relevant public is an element which has to be taken into consideration in assessing whether there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. However, it cannot be accepted that there are cases in which, owing to the level of attention displayed by the relevant public, any likelihood of confusion and therefore any possibility of applying that provision can, a priori, be ruled out (see judgment of 13 March 2018, Kiosked v EUIPO – VRT (K), T‑824/16, EU:T:2018:133, paragraph 72 and the case-law cited).
56      It must also be stated that what is concerned is the level of attention which the relevant public will display when examining the commercial origin of the goods or services at issue. The fact that the public in question will pay more attention to the identity of the producer or provider of the goods or services which it wishes to purchase does not, however, mean that it will examine the mark before it in the smallest detail or that it will compare it in minute detail to another mark. Even with regard to a public with a high level of attention, the fact remains that the average consumer only rarely has the chance to compare the various marks directly and must therefore rely on their imperfect recollection of them (see judgment of 21 November 2013, Equinix (Germany) v OHIM – Acotel (ancotel.), T‑443/12, not published, EU:T:2013:605, paragraph 54 and the case-law cited).
57      In the present case, although, as the applicant submits, a high level of attention is capable of reducing the likelihood of confusion, that fact alone cannot rule out the finding that there is such a likelihood, in the light of all of the relevant factors of the present case, consisting, inter alia, of the phonetic identity and strong visual similarity of the signs at issue and the identity or similarity of the goods and services in question.
58      Lastly, in the absence of any evidence to substantiate the argument that the mark applied for has acquired a certain reputation, the applicant cannot validly rely on such a reputation.
59      In the light of all the foregoing considerations, since the single plea in law relied on by the applicant in support of its claims must be rejected, the action must be dismissed in its entirety.
Costs
60      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.
61      In the present case, even though the applicant has been unsuccessful, EUIPO applied for the applicant to be ordered to pay the costs only in the event of the parties being summoned to attend an oral hearing. Since such a hearing has not been held in the present case, it is appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Homestar sp. z o.o. and the European Union Intellectual Property Office (EUIPO) each to bear their own costs.
Brkan
Gâlea
Kalėda
Delivered in open court in Luxembourg on 29 October 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.