JUDGMENT OF THE GENERAL COURT (Third Chamber)
23 March 2022 (*)
(EU trade mark – Opposition proceedings – Application for the EU word mark AION – Earlier national figurative mark ION and earlier word mark IONFARMA – Relative ground for refusal – No similarity of the goods – Article 8(1)(b) of Regulation (EU) 2017/1001)
In Case T‑465/21,
Ionfarma, SL, established in Barcelona (Spain), represented by S. Correa Rodríguez, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by L. Lapinskaite and J. Ivanauskas, acting as Agents,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being:
LG Electronics, Inc., established in Seoul (South Korea),
ACTION brought against the decision of the Fourth Board of Appeal of EUIPO of 25 May 2021 (Case R 2223/2020-4), relating to opposition proceedings between Ionfarma and LG Electronics,
THE GENERAL COURT (Third Chamber),
composed of G. De Baere, President, G. Steinfatt (Rapporteur) and K. Kecsmár, Judges,
Registrar: E. Coulon,
having regard to the application lodged at the Court Registry on 4 August 2021,
having regard to the response lodged at the Court Registry on 28 October 2021,
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
Background to the dispute
1        On 26 April 2018, LG Electronics, Inc., filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to 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).
2        Registration as a mark was sought for the word sign AION.
3        After amendments made on 19 June 2018 and 17 August 2018 and confirmation of the specification of the limitation of the goods on 7 January 2019, the goods in respect of which registration was sought are in Classes 7, 9 and 11 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 correspond, for each of those classes, to the following description:
–        Class 7: ‘Electric clothes washing machines; Automatic dishwashers; Electric vacuum cleaners; Hose for electric vacuum cleaners; Bag for Electric vacuum cleaners; Stick type vacuum cleaners; Robots; Electric rotary blowers; Compressed air pumps; Rotary compressors; Compressors for refrigerators; Spin driers (not heated); Electric mixers for household purposes; Robotic vacuum cleaners; Electric food processors; Steam cleaners for household purposes; Hand-held vacuum cleaners; Electric vacuum cleaners for bedding; Robots for industrial use; Robots for cleaning; Module system for consisting of robotic palletization carriers; Robots for indoor self-driving; Robots for lawn mowers; Human-wearing artificial exoskeleton robot (Robot Power Suit) for industrial use; Lawnmowers [machines]’;
–        Class 9: ‘Smart phones; Television receivers; Monitors for computers; Commercial monitors; Lap Top computers; Convertible computers; Wearable computers; Computers; Sensor; Portable hard disk drives; Apparatus for recording, transmission or reproduction of sound or images; Application software, not in the field of computer gaming; Audio receivers; Colour printers; Tablet computers; Set top boxes; Camera; Wearable smart phones; Computer software for wireless data communications for receiving, processing, transmitting and displaying the information of exercise/body fat/BMI; Portable terminals for personal use for recording/organizing/transmitting/controlling/reviewing the health and health care, and receiving the text, data, image, audio file; Network hubs; Speech recognition apparatus; Interactive terminals; Electronic apparatus for data processing with interactive functions; Scanners; Projectors; Network monitoring cameras namely for surveillance; Digital signage; Car speakers; Universal serial bus hardware drives; MPEG audio layer-5 players; Telephone sets; Wireless Telephone sets; Portable communications apparatus namely handsets, walkie-talkies, satellite telephones and personal digital assistants [PDA]; Television remote controllers; Encoded electronic chip cards for improvement of television image quality; LED Displays; LED display for television; Digital media broadcasting players, namely, digital video and audio players; Headsets for mobile phones; Portable chargers for mobile phone batteries and digital camera batteries; Liquid crystal protective films for smart phone; Smart phone rings; Power supplies for smart phone; Holders for mobile phones; Electronic photo albums; Digital picture frames for displaying digital pictures, video clips and music; Telecommunications apparatus and instruments; Apparatus for recording, transmission or reproduction of sound or images for use in telecommunications; Electric audio and visual apparatus and instruments; Computer application software for televisions, not in the field of computer gaming; Computer application software for personal monitors, not in the field of computer gaming; Computer application software for home appliances; Computer application software for refrigerators; Computer application software for clothes washing machines; Computer application software for vacuum cleaners; Computer application software for dish washers; Computer application software for ovens; Computer application software for microwave ovens; Computer application software for clothes management machines; Computer application software for air purifiers; Computer application software for water purifiers; Digital Versatile Disc players for home theaters; Personal portable devices for recording, organizing, transmitting, manipulating, reviewing and receiving text, data, images and audio files relating to health and wellness; Audio speakers for home theaters; Audio-Video receivers for home theaters; Multimedia projectors for home theaters; Integrated circuits; Electronic toll collection systems; Transponders, namely, electronic terminals equipped in vehicles for electronic commercial transactions; Closed-Circuit Television Cameras; Thermal printers; Laser printers; Ink jet printers; Recorded computer programmes, not in the field of computer gaming; Downloadable computer programs, not in the field of computer gaming; Personal Computer Cameras; Digital voice recorders; Videocassette recorders; Network monitors in the nature of network access server hardware; Computer software for education; Electronic Notepads (E-Note); Interactive electronic white board computers; Downloadable image file containing artwork, text, audio, video, games, and Internet Web links relating to sporting and cultural activities; Electronic downloadable publications in the nature of magazines, newspapers, books, manuals in the field of electronics; Video conference system; Computer monitors for video conference; Cameras for video conference; Speakers for video conference; Three dimensional eyeglasses for television receivers; Car broadcasting tuners; Car cassette players; Modules for photovoltaic power generation; Inverter used in solar power generation; Controlling system for ventilation, heating and air conditioning temperature; Electronics security system for home network; Home automation device; Home network devices; Watches with the function of wireless communications with electronic terminals such as smartphones, tablet computers, PDA, computers; Watchbands with the function of wireless communications with electronic terminals such as smartphones, tablet computers, PDA, computers; Bracelets that communicate data to personal digital assistants, smart phones, tablet computers and personal computers through internet websites and other computer and electronic communication networks; Watches incorporating cameras and MP3 players, and that communicate data to smart phones and PDAs; Wristwatches with the function of mobile communications; Smart watches comprised primarily of a wristwatch also featuring a telephone, software and display screens for viewing, sending and receiving texts, emails, data and information; Wearable digital electronic devices comprised primarily of a wristwatch and also featuring a telephone, software and display screens for viewing, sending and receiving texts, emails, data and information from smart phones, tablet computers and portable computers; Messenger platforms using chatbot (software), not in the field of computer gaming; Interactive software based on artificial intelligence, not in the field of computer gaming; Software as an artificially intelligent personal assistant; Software for recommending goods/services and purchase orders based on artificial intelligence; Software for providing weather information, news, music and entertainment information based on artificial intelligence; Software for location-based services for providing road itineraries, parking information and nearby facility information based on artificial intelligence; Software for providing reservation services based on artificial intelligence; Humanoid robots with artificial intelligence; Humanoid robots with artificial intelligence; Security surveillance robots; Speaker; Voice processing systems; Set-top box having sound recognition properties’;
–        Class 11: ‘Air conditioners; Humidifiers; Electric dehumidifier for household use; Electric ranges; Water purifiers for household purposes; Water ionizers for household purposes; Membrane apparatus in the nature of filters for purifying water; Solar thermal collectors [heating]; Air purifiers; Light Emitting Diode lighting; Gas ranges; Electric kitchen ovens; Apparatus or installations for cooking; Electric refrigerators; Electric clothes dryers; Clothes management machines for drying clothes (electric) for household purpose; Electric clothing management machines having the functions of deodorizing, sterilizing and steaming garments for household purposes; Electric clothes drying machines with sterilization, deodorization and crease-resistant treatment functions for household purposes; Precision filters for water treating; Water desalination plants; Purification installations for sewage; Purification installations for wastewater reclamation and reusing system; Wastewater purifying and treatment apparatus; Filters for wastewater; Water purifiers for industry; Street lamps; Incandescent lamps; Fluorescent lamps; Automobile lights; Ventilators for automobiles; Electric wine cellar for household purposes; Sinks’.
4        The trade mark application was published in European Union Trade Marks Bulletin
No 2018/170 of 7 September 2018.
5        On 4 December 2018, the applicant, Ionfarma, SL, filed a notice of opposition, pursuant to Article 46 of Regulation 2017/1001, to registration of the mark applied for in respect of all the goods referred to in paragraph 3 above.
6        The opposition was based on the following earlier rights:
–        the figurative mark registered in Spain under number M3669235, reproduced below, designating goods in Classes 10 and 11 and corresponding, for each of those classes, to the following description:
–        Class 10: ‘Electric heating cushions for medical purposes’;
–        Class 11: ‘Electric heating cushions not for medical purposes’.
–        the word mark IONFARMA registered in Spain under number LM3669242, designating goods in Classes 10 and 11 and corresponding, for each of those classes, to the following description:
–        Class 10: ‘Electric heating cushions for medical purposes’;
–        Class 11: ‘Electric heating cushions not for medical purposes’.
7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation 2017/1001.
8        By decision of 23 September 2020, the Opposition Division rejected the opposition in its entirety.
9        On 23 November 2020, the applicant filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division.
10      By decision of 25 May 2021 (‘the contested decision’), the Fourth Board of Appeal of EUIPO dismissed the applicant’s appeal.
11      In order to arrive at that ruling, the Board of Appeal endorsed the Opposition Division’s reasoning according to which the goods in question referred to in paragraph 3 above were different to the goods designated by the earlier marks. The latter are specific goods which are not included in the list of goods designated by the mark applied for, with the result that they are not identical. Similarly, the Board of Appeal ruled out the similarity of those goods, since there were differences between electric cushions and all the contested goods.
12      In the first place, regarding the goods in Class 7 covered by the mark applied for, the Board of Appeal observed that the Opposition Division had subdivided those goods into two categories, the first including ‘various domestic apparatus or appliances’ and the second being comprised of ‘various industrial apparatus’. First of all, the household appliances have, first, a different intended purpose from that of the electric heating cushions designated by the earlier marks, which may alleviate pain or contribute to better health and well-being, and are, secondly, used in a different manner to electric heating cushions. Next, although they could be produced by the same undertakings, that does not alter the dissimilarity between those goods. It is common knowledge that undertakings manufacture a wide range of goods and apparatus which are then distributed by different companies. As stated by the Opposition Division, the domestic apparatus and appliances referred to could share the same commercial channels as the goods designated by the earlier marks, in the categories of electronics and electrical appliances, but are displayed in separate sections. The industrial apparatus covered by the mark applied for target a professional public in different sectors, but not the sanitary or medical one, and the manufacturing process and distribution channels of those goods are different to those of the goods designated by the earlier marks. Last, the contested domestic or industrial apparatus are not in competition with or complementary to the goods designated by the earlier marks.
13      In the second place, regarding the goods in Class 9 covered by the mark applied for, the Board of Appeal confirmed the division into two categories carried out by the Opposition Division, namely (i) electronic goods for the general public and (ii) electronic goods targeting a specialised public in the field of IT. The intended purpose and method of use of all of the contested goods in Class 9 are different to those of the goods designated by the earlier marks. None of those goods is complementary or in competition.
14      In the third and last place, regarding the goods in Class 11 covered by the mark applied for, the Board of Appeal confirmed the Opposition Division’s finding that those goods could be divided into two categories, one with goods intended for domestic use and the other with goods intended for industrial use. Their nature, intended purpose and method of use are different to those of the goods designated by the earlier marks. Similarly, they are neither complementary nor substitutable. As for the contested goods intended for domestic use, they are targeted, like the goods designated by the earlier marks, at the general public and could be produced by the same undertakings and marketed through the same commercial channels, but in separate sections. Those coincidences are not sufficient to establish a similarity between the contested goods and those designated by the earlier marks.
Forms of order sought
15      The applicant claims, in essence, that the Court should:
–        annul the contested decision and reject the mark applied for in respect of all the goods;
–        order EUIPO to pay the costs.
16      EUIPO contends that the Court should:
–        dismiss the application;
–        order the applicant to pay the costs.
Law
Admissibility of the second part of the applicant’s first head of claim
17      By the second part of its first head of claim, the applicant claims that the Court should reject the application for registration of the mark applied for.
18      EUIPO disputes the admissibility of that claim.
19      In that regard, it should be noted that that claim can be interpreted in two ways. On the one hand, it may be understood as asking the Court to order EUIPO to reject the application for registration of the mark applied for. However, it has consistently been held that, under Article 72(6) of Regulation 2017/1001, EUIPO is required to take the measures necessary to comply with judgments of the EU Courts. Accordingly, it is not for the Court to issue directions to EUIPO (see judgment of 12 April 2011, Euro-Information v OHIM (EURO AUTOMATIC PAYMENT), T‑28/10, EU:T:2011:158, paragraph 12 and the case-law cited; judgment of 25 November 2020, Kerangus v EUIPO (ΑΠΛΑ!), T‑882/19, not published, EU:T:2020:558, paragraph 24).
20      Furthermore, in so far as that claim may be interpreted as asking the Court to alter the Board of Appeal’s decision within the meaning of Article 72(3) of Regulation 2017/1001, it must be borne in mind that, in the present case, the Board of Appeal did not examine, in the contested decision, whether there was a likelihood of confusion. Even if the Court were to rule that the Board of Appeal had erred in concluding that the goods concerned were not similar, the applicant’s claim would involve the Court assessing whether there was a likelihood of confusion for the first time on the basis of matters on which the Board of Appeal did not adopt a position. According to the case-law, the power of the General Court to alter decisions does not have the effect of conferring on that Court the power to substitute its own reasoning for that of a Board of Appeal or to carry out an assessment on which that Board of Appeal has not yet adopted a position. Exercise of the power to alter decisions must therefore, in principle, be limited to situations in which the Court, after reviewing the assessment made by the Board of Appeal, is in a position to determine, on the basis of the matters of fact and of law as established, what decision the Board of Appeal was required to take (judgment of 5 July 2011, Edwin v OHIM, C‑263/09 P, EU:C:2011:452, paragraph 72).
21      It follows that the second part of the applicant’s first head of claim must be rejected as inadmissible.
Substance
22      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. That plea is, in essence, divided into three parts.
23      Under Article 8(1)(b) of Regulation 2017/1001, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for is not to 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.
24      According to settled 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; judgment of 24 February 2021, Sonova v EUIPO – Digitmarket (B-Direct), T‑61/20, not published, EU:T:2021:101, paragraph 30).
25      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).
26      Consequently, for the purposes of applying Article 8(1)(b) of Regulation 2017/1001, it is still necessary, even where the marks at issue are identical, to adduce evidence of similarity between the goods or services covered by them (see judgment of 13 December 2018, Monster Energy v EUIPO – Bösel (MONSTER DIP), T‑274/17, EU:T:2018:928, paragraph 22 and the case-law cited; see also, to that effect, order of 9 March 2007, Alecansan v OHIM, C‑196/06 P, not published, EU:C:2007:159, paragraph 24).
The first part, alleging error of assessment of the similarity of the goods
27      By the first part, the applicant claims that the goods in Classes 7, 9 and 11 covered by the mark applied for and those in Classes 10 and 11 designated by the earlier marks are similar and/or closely connected.
28      In the first place, regarding the goods in Class 11, the applicant submits that they are similar, since they are displayed in the same sections of department stores and can originate from the same undertakings and have the same distribution channels, with the result that they could give rise to a likelihood of confusion or association on the part of consumers.
29      In the second place, regarding the goods in Classes 7 and 9 covered by the mark applied for, the applicant observes that, in accordance with Article 33(7) of Regulation 2017/1001, the classification of goods and services under the Nice Classification serves purely administrative purposes, with the result that goods and services cannot be regarded as dissimilar on the sole ground that they appear in different classes. Although the purpose of the goods covered by the mark applied for in Class 7 and those designated by the earlier marks may vary, they all fall under the category of household appliances that consumers may expect to be provided by the same undertaking or economically linked undertakings. Those goods are similar since they are sold and distributed via the same trade channels and they are targeted at the same consumers. In addition, it is a frequent practice for the same manufacturers to produce such equipment.
30      In the third place, regarding the ‘Computer application software for home appliances; Computer application software for refrigerators; Computer application software for clothes washing machines; Computer application software for vacuum cleaners; Computer application software for dish washers; Computer application software for ovens; Computer application software for microwave ovens; Computer application software for clothes management machines; Computer application software for air purifiers; Computer application software for water purifiers; Modules for photovoltaic power generation; Inverter used in solar power generation; Controlling system for ventilation, heating and air conditioning temperature; Electronics security system for home network; Home automation device; Home network devices’ in Class 9 designated by the mark applied for, the applicant submits that those goods are usually complementary and are used to programme or control the goods covered by the earlier marks. Accordingly, those goods could be found in the same specialised shops or sold together as a complex product. Similarly, they may be produced by the same undertakings or related undertakings, since their design and development involve quite similar technologies, materials and expertise, with the result that it is not uncommon, on that market, that the goods covered by the mark applied for and those designated by the earlier marks are made by the same manufacturer. It is likely that they share the same origin, that is to say, that they are manufactured by the same companies. Moreover, they share the same distribution channels. As a result, consumers might believe that those goods originate from the same undertaking or economically linked undertakings. An undertaking active on the market in the provision of the goods in question might use sub-brands, and it is therefore conceivable that consumers may regard the goods designated by the marks at issue as being two different types of goods, which nevertheless originate from the same undertaking or a linked undertaking.
31      EUIPO disputes the applicant’s arguments. According to EUIPO, the applicant has not put forward any arguments that would call into question the Board of Appeal’s conclusion regarding the dissimilarity of the goods designated by the marks at issue.
32      According to settled case-law, in assessing the similarity of the goods or services at issue, all the relevant factors relating to those goods or services should be taken into account. Those factors include, in particular, their nature, their intended purpose, 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).
33      In the present case, in the first place, regarding the goods in Class 7 covered by the mark applied for, the applicant did not put forward any argument to establish the similarity of the goods intended for industrial use and the goods covered by the earlier marks, as the application refers only to the goods which the Board of Appeal considers to be household appliances.
34      Regarding the goods covered by the mark applied for belonging to the category of household appliances in Class 7, EUIPO rightly noted that the purpose of those goods was to assist in everyday housekeeping tasks. By contrast, the purpose of the electric heating cushions covered by the earlier marks is to heat different parts of the body.
35      Last, EUIPO also correctly emphasised that the fact that the goods covered by the marks at issue are targeted at the same consumers is not sufficient to establish their similarity. The fact that the end consumers of the goods are identical cannot be regarded as a significant factor in assessing the similarity between the goods (see judgment of 20 September 2012, HerkuPlast Kubern v OHIM – How (eco-pack), T‑445/10, not published, EU:T:2012:454, paragraph 23 and the case-law cited; judgment of 4 June 2013, i-content v OHIM – Decathlon (BETWIN), T‑514/11, EU:T:2013:291, paragraph 34 (not published)), particularly where those goods are targeted at the general public.
36      In the second place, regarding the goods in Class 9 covered by the mark applied for, the applicant argues that some of those goods are used to programme or control the goods covered by the earlier marks and may, as a result, be sold together or manufactured by the same undertakings or linked undertakings.
37      In so far as the applicant alleges, in essence, that that software is complementary to the goods covered by the earlier marks, it must be recalled that, according to settled case-law, goods or services which are complementary are those where there is a close connection between them, in the sense that one is indispensable or important for the use of the other in such a way that consumers may think that the responsibility for the production of those goods, or provision of those services, lies with the same undertaking (see judgment of 12 March 2020, Sumol + Compal Marcas v EUIPO – Heretat Mont-Rubi (SUM011), T‑296/19, not published, EU:T:2020:93, paragraphs 41 and 42 and the case-law cited).
38      As EUIPO correctly observed, the software in Class 9 is created for specific appliances that are different to the electric heating cushions covered by the earlier marks. None of the software covered by the mark applied for is intended for electric heating cushions. The applicant has not explained, much less proved, that that software is closely connected to the goods covered by the earlier marks such as to warrant them being regarded as complementary to those goods.
39      In the third place, regarding the goods in Class 11 covered by the mark applied for, the applicant, in essence, merely refers to the extracts in Annex 8 to the application in order to show that those goods are displayed in the same sections of department stores. However, it does not put forward any argument to challenge the Board of Appeal’s finding in paragraph 16 of the contested decision that those goods – which can be divided into two categories, namely (i) goods for domestic use, such as humidifiers and water purifiers, and (ii) goods for industrial use, such as water desalination plants and street lamps – differ in their nature, intended purpose and method of use from the goods covered by the earlier marks.
40      In the fourth place, the applicant submits that the goods covered by the marks at issue are similar on the ground that they are sold and distributed via the same distribution channels. However, the evidence adduced in support of that argument, to which it refers in relation to the goods in Classes 7 and 11 covered by the mark applied for, does not bear out that argument. The extracts of the websites of the department stores El Corte Inglés, Miró and Ramon Soler submitted by the applicant show only electric heating cushions, that is to say, the goods covered by the earlier marks. Moreover, the applicant cannot find support in the fact that the goods covered by the earlier marks are displayed, on the respective sites of those shops, in the ‘electrical goods’, ‘air conditioning’ and ‘heating’ sections, given that that fact alone is not sufficient to establish that the goods being compared are displayed in the same sections of the shops. On the contrary, the evidence adduced by the applicant shows that department stores, which sell a wide variety of goods, establish several subcategories of ‘electrical goods’ or ‘heating’ goods, which shows that those broad categories contain such different goods that it is appropriate to classify them in several subcategories, in order to enable consumers to find what they intend to purchase.
41      In addition, according to the case-law, the fact that those goods are sold via the same distribution channels may, admittedly, constitute a factor of similarity, but only provided that those channels are not non-specialist sales channels such as supermarkets or department stores, where very different kinds of goods may be found, so that consumers cannot automatically believe that they have the same origin (see, to that effect, judgment of 30 June 2021, Makk v EUIPO – Ubati Luxury Cosmetics (PANTA RHEI), T‑501/20, not published, EU:T:2021:402, paragraph 52 and the case-law cited). In the present case, the department stores to which the applicant refers, namely El Corte Inglés, Miró and Ramon Soler, are non-specialist sales channels offering such a wide variety of goods that consumers cannot believe that they have the same origin.
42      Furthermore, the applicant has omitted to support its claim that it is a frequent practice for the same manufacturers to produce the goods covered by the marks at issue.
43      Last, the applicant’s argument that the fact that the goods covered by the marks at issue are in different Nice Classification classes is not sufficient for a finding that those goods are not similar is ineffective. The Board of Appeal did not base its decision on that finding; rather, after having assessed the criteria relating to the comparison of the goods designated by the marks at issue, it merely stated as a closing remark that the conclusion at which it had arrived was borne out by that fact.
44      Having regard to the foregoing considerations, the Board of Appeal did not err in finding that the goods covered by the marks at issue were not similar for the purposes of Article 8(1)(b) of Regulation 2017/1001.
The second and third parts, relating to the comparison of the marks at issue and the existence of a likelihood of confusion
45      By the second and third parts, the applicant submits, in essence, that the marks at issue are highly similar and that there is a likelihood of confusion.
46      EUIPO disputes the admissibility of the arguments raised by the applicant relating to the comparison of the signs at issue and the existence of a likelihood of confusion.
47      Since it has been found that the Board of Appeal was right to conclude that the goods covered by the marks at issue were different, the Board of Appeal was not required to examine whether those marks were similar in the context of its analysis of the opposition based on Article 8(1)(b) of Regulation 2017/1001. It is apparent from the case-law cited in paragraphs 25 and 26 above that the lack of similarity of the goods in question precludes any likelihood of confusion within the meaning of Article 8(1)(b) of that regulation (see, to that effect, judgment of 13 December 2018, MONSTER DIP, T‑274/17, EU:T:2018:928, paragraph 48).
48      It follows that the second and third parts of the single plea must be rejected as ineffective.
49      Having regard to the foregoing, the single plea must be rejected and the action in its entirety must be dismissed.
Costs
50      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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by EUIPO.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Ionfarma, SL to pay the costs.
De Baere
Steinfatt
Kecsmár
Delivered in open court in Luxembourg on 23 March 2022.
E. Coulon
S. Papasavvas
Registrar
President
*      Language of the case: English.