JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
23 October 2024 (*)
( EU trade mark – Opposition proceedings – International registration designating the European Union – Word mark FRUITOLOGY – Earlier national word mark CENTRO DE FRUTOLOGIA – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EU) 2017/1001 )
In Case T‑523/23,
Sumol + Compal Marcas SA, established in Carnaxide (Portugal), represented by A. de Sampaio, lawyer,
applicant,
v
European Union Intellectual Property Office (EUIPO), represented by D. Gája, acting as Agent,
defendant,
the other party to the proceedings before the Board of Appeal of EUIPO being
Boiron frères, established in Châteauneuf-sur-Isère (France),
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg and I. Dimitrakopoulos (Rapporteur), 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, Sumol + Compal Marcas SA, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 June 2023 (Joined Cases R 797/2022-2 and R 804/2022-2) (‘the contested decision’).
I.      Background to the dispute
2        On 2 November 2020, the other party to the proceedings before EUIPO, Boiron frères, designated the European Union in respect of the international registration of the word mark FRUITOLOGY.
3        The services in respect of which the protection of the mark was sought are in Class 41 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 to the following description: ‘Education in the culinary field, training in the culinary field; entertainment in the culinary field; organization and conducting of colloquiums, conferences, seminars, congresses in the culinary field; organization of exhibitions for cultural or educational purposes in the culinary field; organization and conducting of training workshops in the culinary field; organization of culinary competitions; advice in the field of culinary competitions; cooking classes; cooking competitions; publication of cookery and recipe books’.
4        On 22 March 2021, the applicant filed a notice of opposition to registration of the mark applied for in respect of all the services referred to in paragraph 3 above.
5        The opposition was based on the earlier Portuguese word mark CENTRO DE FRUTOLOGIA, which was filed on 24 May 2017 and registered on 30 August 2017 and covers, inter alia, services in Class 41 corresponding to the following description: ‘Education; teaching (academies); training; organisation of training courses in the field of technology and innovation; arranging and conducting of conferences, congresses, seminars and training workshops; cultural activities’.
6        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (OJ 2017 L 154, p. 1).
7        On 11 March 2022, the Opposition Division partially upheld the opposition in respect of the following services in Class 41 covered by the mark applied for: ‘Education in the culinary field, training in the culinary field; entertainment in the culinary field; organization and conducting of colloquiums, conferences, seminars, congresses in the culinary field; organization of exhibitions for cultural or educational purposes in the culinary field; organization and conducting of training workshops in the culinary field; organization of culinary competitions; advice in the field of culinary competitions; cooking classes; cooking competitions’. By contrast, it rejected the opposition in respect of the services in that class of publication of cookery and recipe books.
8        On 10 May 2022, the other party to the proceedings before EUIPO filed a notice of appeal with EUIPO against the decision of the Opposition Division, in so far as it had partially upheld the opposition.
9        On 11 May 2022, the applicant filed a separate notice of appeal with EUIPO against the decision of the Opposition Division, in so far as it had partially rejected its opposition.
10      By the contested decision, the Board of Appeal, after joining the appeal proceedings referred to in paragraphs 8 and 9 above, dismissed the applicant’s appeal and upheld the appeal of the other party to the proceedings before it by annulling the Opposition Division’s decision and rejecting the opposition in its entirety on the ground that there was, in the present case, no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
II.    Forms of order sought
11      The applicant claims, in essence, that the Court should:
–        annul the contested decision or alter it by annulling the Opposition Division’s decision of 11 March 2022 in so far as it partially rejected the opposition;
–        order EUIPO and the other party to the proceedings before the Board of Appeal of EUIPO to pay the costs.
12      EUIPO contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs in the event that a hearing is convened.
III. Law
13      The applicant relies, in essence, on two pleas in law alleging, first, infringement of Article 95(1) of Regulation 2017/1001, in that the Board of Appeal should have taken into consideration the documents submitted before it in support of the argument relating to the enhanced distinctiveness of the earlier mark acquired through use, and, secondly, infringement of Article 8(1)(b) of that regulation, on account of the incorrect application of the criteria for assessing the similarity of the marks at issue and the likelihood of confusion.
14      It is appropriate to examine the second plea first.
15      The applicant submits that the Board of Appeal erred in finding that there was, in the present case, no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001. It thus complains, in essence, that the Board of Appeal made a number of errors of assessment regarding the degrees of similarity between the marks at issue and the taking into account of the distinctive and dominant elements of those marks. First, it submits that the word ‘frutologia’ is fanciful and distinctive and that the terms ‘frutologia’ and ‘fruitology’ are dominant. Secondly, it argues that there is an average degree of visual and phonetic similarity between the marks at issue on account of the resemblance between their dominant elements. Thirdly, the applicant complains, in essence, that the Board of Appeal misapplied the principle of interdependence between the similarity of the signs and that of the services covered by the marks at issue.
16      EUIPO disputes the applicant’s arguments. It contends that the terms ‘frutologia’ and ‘fruitology’, the sole source of similarity between the marks at issue, are weakly distinctive with regard to the services covered by those marks. It argues that the invented word ‘frutologia’ is understood by the Portuguese public and that its creation did not require any significant amount of originality, imagination or creativity on the part of the applicant. It submits that those elements are not therefore of particular importance with regard to the comparison of the marks at issue. Furthermore, it contends that the expression ‘centro de’, as regards the earlier mark, constitutes an important difference with regard to the comparison of the signs. EUIPO also takes the view that the inherent distinctiveness of the earlier mark is weak and that the applicant has not in any way proved that that mark had acquired enhanced distinctiveness through use. Consequently, EUIPO takes the view that the global assessment of the likelihood of confusion carried out by the Board of Appeal, taking into account the principle of interdependence, is, in the present case, free from error. It submits that there is thus no likelihood of confusion in the present case.
17      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.
18      For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM – easyGroup IP Licensing (easyHotel), T‑316/07, EU:T:2009:14, paragraph 42 and the case-law cited).
19      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. According to the same case-law, 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).
20      It is in the light of those considerations that it must be assessed whether the Board of Appeal was right in finding that, as regards the services in Class 41 covered by the marks at issue, there was, on the part of the relevant public, no likelihood of confusion within the meaning of Article 8(1)(b) of Regulation 2017/1001.
21      It must be pointed out at the outset that the Board of Appeal found that, first, the relevant public corresponded to the general public and to professional consumers with specific professional knowledge or expertise, which had a level of attention that could vary from average to high, secondly, the relevant territory was that of Portugal and, thirdly, the services at issue in Class 41 were identical or similar. The applicant does not dispute the abovementioned findings of the Board of Appeal.
22      As regards the assessment of the similarity of the marks at issue, which is disputed by the applicant, it must be borne in mind that the global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).
23      Consequently, before dealing with the question of the visual, phonetic and conceptual similarity of the marks at issue, it is necessary to examine the applicant’s complaint regarding the Board of Appeal’s assessment of the distinctive and dominant elements of the earlier mark.
The distinctive and dominant elements of the earlier mark
24      As regards the earlier mark, the Board of Appeal found that the expression ‘centro de’ had a weak distinctive character since it referred to the establishment in which the services covered by that mark were provided. It also found that the term ‘frutologia’ would be associated with the Portuguese word ‘fruta’, which means ‘fruit’ and alluded to the services covered by the earlier mark, which related to cooking, whereas the suffix ‘logia’ was used in Portuguese to refer to a study. Consequently, it concluded that the term ‘frutologia’ in the earlier mark referred, for the relevant Portuguese public, to the study of fruit and was therefore also weakly distinctive.
25      The applicant submits that the expression ‘centro de’ in the earlier mark is less distinctive than the fanciful and dominant term ‘frutologia’, which is an invented word that attracts the relevant public’s attention.
26      EUIPO contends that the words ‘frutologia’ and ‘fruitology’ are the sole sources of similarity between the marks at issue and are weakly distinctive with regard to the services covered by those marks. Furthermore, it argues that, although the word ‘frutologia’ does not exist in Portuguese, its meaning is understood by the Portuguese public and that the process of creating that word did not require any significant amount of originality, imagination or creativity on the part of the applicant.
27      In the first place, it must be borne in mind that, according to settled case-law, for the purposes of assessing the distinctive character of an element of a mark, an assessment must be made of the greater or lesser capacity of that element to identify the goods or services for which the mark was registered as coming from a particular undertaking, and thus to distinguish those goods or services from those of other undertakings. In making that assessment, it is necessary to take into account, in particular, the inherent characteristics of that element and to ask whether it is at all descriptive of the goods or services for which the mark has been registered (see judgment of 22 September 2016, Sun Cali v EUIPO – Abercrombie & Fitch Europe (SUN CALI), T‑512/15, EU:T:2016:527, paragraph 59 and the case-law cited).
28      Furthermore, the allusiveness of an element of a mark, like the descriptiveness or laudatory nature of such an element, is capable of affecting its inherent distinctive character. The ability of enabling the consumer to distinguish immediately and with certainty the goods or services covered by a mark, in so far as it contains such an element, from the goods or services of other undertakings is reduced in all the above scenarios (judgment of 23 May 2019, Dentsply De Trey v EUIPO – IDS (AQUAPRINT), T‑312/18, not published, EU:T:2019:358, paragraph 50).
29      In the present case, as has been pointed out in paragraphs 2 and 5 above, the two marks at issue are word marks. It must thus be stated that, although the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details, the fact remains that, when perceiving a word sign, he or she will break it down into word elements which, for him or her, have a specific meaning or which resemble words known to him or her (see, to that effect, judgment of 6 October 2004, Vitakraft-Werke Wührmann v OHIM – Krafft (VITAKRAFT), T‑356/02, EU:T:2004:292, paragraph 51).
30      As regards the earlier mark, it must be pointed out, first, as the Board of Appeal did in paragraphs 42, 43 and 45 of the contested decision, that the expression ‘centro de’ refers to the establishment in which the services in question are provided and is therefore weakly distinctive, a finding which is not, moreover, disputed by the applicant. Secondly, the term ‘fruto’ in the word ‘frutologia’ means ‘fruit’. Thirdly, the suffix ‘logia’ in the same word refers to study, to knowledge and to science. However, as the services at issue include, inter alia, education, training, and the organisation of conferences, congresses, seminars and training workshops, it must be held that that suffix alludes to those services. It follows that, as the Board of Appeal found in paragraph 45 of its contested decision, the term ‘frutologia’ will be understood by the relevant public as the study or knowledge of fruit, a finding which is not, moreover, disputed by the applicant. However, the word ‘frutologia’ does not exist as such in Portuguese. It constitutes an invented term, which is fanciful, and that makes it more distinctive than the expression ‘centro de’, which is located at the beginning of the earlier mark. Consequently, even though the term ‘frutologia’ alludes to the services at issue, the applicant is right in pointing out that that word is the one within the earlier mark which attracts the attention of the relevant public.
31      In the second place, according to the case-law, word marks consist entirely of letters, words or associations of words, which are written in printed characters in a normal font, without any specific graphic element (see, to that effect, judgment of 7 March 2019, Laverana v EUIPO – Agroecopark (VERA GREEN), T‑106/18, not published, EU:T:2019:143, paragraph 56 and the case-law cited). Such marks do not therefore, in principle, have a dominant element because, by nature, none of their constituent elements has a particular graphic or stylistic aspect which is capable of conferring such a dominant nature on it (see, to that effect, judgment of 2 March 2022, UGA Nutraceuticals v EUIPO – Vitae Health Innovation (VITADHA), T‑149/21, not published, EU:T:2022:103, paragraph 79 and the case-law cited).
32      That applies in the present case, since the marks at issue are word marks. It follows that, contrary to the applicant’s claims, the word ‘frutologia’ cannot be held to be the dominant element in the earlier mark. The Board of Appeal was therefore right in not identifying any dominant element in that mark.
The visual similarity
33      The Board of Appeal observed that the signs coincided in the sequence of letters ‘f’, ‘r’, ‘u’ and ‘t’, ‘o’, ‘l’, ‘o’, ‘g’, but differed in the presence of the additional terms ‘centro de’ in the earlier sign and of the letter ‘i’ in the sign applied for and in the ending of the terms ‘frutologia’ and ‘fruitology’, namely ‘ia’ as regards the earlier sign and ‘y’ as regards the sign applied for. However, it noted that, in the present case, the elements which were similar in the two signs, namely ‘frutologia’ and ‘fruitology’, were weakly distinctive, which considerably lessened the similarity between them. Consequently, it found that, although the earlier mark contained other elements which were weakly distinctive and not reproduced in the mark applied for, namely the terms ‘centro de’, which are placed at the beginning of the earlier sign, they would nonetheless be noticed by the relevant public, which would attach greater importance to the terms which constitute the beginning of the sign. The Board of Appeal concluded that the visual similarity of the marks at issue was low in degree and was based on weak elements.
34      The applicant submits that, since the main and distinctive element of the earlier mark, namely ‘frutologia’, contains eight of the ten letters which constitute the mark applied for, FRUITOLOGY, placed in the same positions, the marks at issue are visually similar to an average degree.
35      EUIPO takes the view that undue weight should not be given to the similarity between the elements ‘frutologia’ and ‘fruitology’, which are weakly distinctive. Furthermore, it states that the initial part of the mark normally has a greater impact than the final part of that mark, inter alia from a visual standpoint. It submits that, in the present case, the words ‘centro de’, although they are weakly distinctive as regards the earlier mark, constitute an important point of visual difference.
36      It is apparent from the case-law relating to word marks that what matters in the assessment of the visual similarity between such marks is the presence, in each of them, of several letters in the same order (see, to that effect, judgment of 25 March 2009, Kaul v OHIM – Bayer (ARCOL), T‑402/07, EU:T:2009:85, paragraph 83).
37      First of all, in the present case, it must be pointed out that it is common ground between the parties that the marks at issue coincide in the sequences of letters ‘f’, ‘r’, ‘u’ and ‘t’, ‘o’, ‘l’, ‘o’, ‘g’, which are contained in the term ‘frutologia’, as regards the earlier mark, and in the term ‘fruitology’, as regards the mark applied for. Furthermore, as the Board of Appeal found, those two terms differ in their endings, namely ‘ia’, as regards the earlier mark, and ‘y’, as regards the mark applied for, and in the presence of an additional letter in the mark applied for, namely an ‘i’. However, the Board of Appeal was right in not attaching any importance to those differences, the first of which concerns the letters at the ends of the signs at issue (‘ia’ and ‘y’), which are preceded by the same group of letters (‘tolog’), and the second of which relates to a single letter (‘i’), which is surrounded by the same groups of letters (‘fru’ and ‘tolog’).
38      Furthermore, it must be stated, as observed by the Board of Appeal, that the earlier mark contains two additional words, namely the expression ‘centro de’, which is placed at the beginning of that mark.
39      However, the word ‘frutologia’ is more distinctive than the expression ‘centro de’ and consequently constitutes the element in that mark which attracts the attention of consumers more (see paragraph 30 above). In addition, that word ‘frutologia’ coincides to a great extent with the term ‘fruitology’ (in eight out of ten letters, in the same order), which constitutes the mark applied for, whereas the visual differences between those two words are of only minor importance.
40      It follows from the foregoing that, contrary to the Board of Appeal’s findings in that regard, the marks at issue are visually similar to an average degree.
The phonetic similarity
41      The Board of Appeal observed that the marks at issue coincided in the pronunciation of the groups of letters ‘frutologi’, as regards the earlier mark, and ‘fruitology’, as regards the mark applied for. However, according to the Board of Appeal, they were not very distinctive elements, which had a limited effect on the perception of the relevant public. It added that there were differences between the marks at issue in so far as the earlier mark contained additional elements, namely, first, the letter ‘a’ at the end of the word ‘frutologia’ and, secondly, the presence of the expression ‘centro de’. It found that, as that expression would be pronounced first and had no counterpart in the sign applied for, it reduced the phonetic similarity between the marks at issue. Consequently, the Board of Appeal concluded that the marks at issue were phonetically similar to a low degree.
42      The applicant submits that, as the main and distinctive element of the earlier mark, ‘frutologia’, contains eight out of ten letters which are identical to those in the mark applied for, FRUITOLOGY, and are placed in the same positions, the marks at issue are phonetically similar to an average degree.
43      EUIPO takes the view that undue weight should not be given to the similarity between the elements ‘frutologia’ and ‘fruitology’, which are weakly distinctive. Furthermore, it states that the initial part of the mark normally has a greater impact than the final part of that mark, inter alia from a phonetic standpoint. It submits that, in the present case, the words ‘centro de’, although they are weakly distinctive as regards the earlier mark, constitute an important point of phonetic difference.
44      First of all, it must be pointed out, as observed by the Board of Appeal, that, from a phonetic standpoint, the pronunciation of the groups of letters ‘frutologi’, as regards the earlier mark, and ‘fruitology’, as regards the mark applied for, is very similar and that that similarity is only marginally altered by the presence of the additional letter ‘a’ at the end of the word ‘frutologia’.
45      The marks at issue also differ in the presence of the expression ‘centro de’ as regards the earlier mark, an expression which is not present in the mark applied for. However, that expression is less distinctive than the term ‘frutologia’ in the earlier mark (see paragraph 30 above).
46      In the light of the foregoing, it must be held that, contrary to what the Board of Appeal found in paragraph 63 of the contested decision, there is an average degree of phonetic similarity between the marks at issue.
The conceptual similarity
47      The Board of Appeal found that both of the marks at issue referred to the idea of the study of fruit for the relevant public and that they were therefore weakly distinctive. The Board of Appeal thus concluded that the marks at issue, taken as a whole, were conceptually similar to a low degree.
48      The applicant submits that most of the consumers will understand the terms ‘frutologia’ and ‘fruitology’ as being related to fruit. In this respect, it argues that the term ‘fruitology’ is a possible English translation of the invented term ‘frutologia’, which is defined as an art, a science or an ideology relating to fruit of a certain origin, variety or quality. Consequently, the applicant takes the view that the marks at issue are conceptually similar to an average degree.
49      EUIPO takes the view that undue weight should not be given to the similarity between the elements ‘frutologia’ and ‘fruitology’, which are weakly distinctive. Furthermore, it submits that, in the present case, the words ‘centro de’, although they are weakly distinctive as regards the earlier mark, constitute an important point of conceptual difference.
50      First of all, it must be pointed out that it is common ground between the parties, as noted in paragraphs 47 and 48 above, that the marks at issue both refer to the idea of the study and knowledge of fruit, since the earlier mark includes the word ‘frutologia’ and the mark applied for consists of the word ‘fruitology’.
51       Furthermore, the word ‘frutologia’ is more distinctive than the expression ‘centro de’ in the earlier mark (see paragraph 30 above). Consequently, as the Board of Appeal correctly found, that expression has only a limited impact on the conceptual similarity between the marks at issue. That expression, by referring to the establishment in which the services concerned are provided, relates to the concept of the study and knowledge of fruit.
52      In view of the foregoing, regardless of the weak distinctive character of the marks at issue, it must be held, contrary to the Board of Appeal’s findings in that regard, that those marks are conceptually similar to at least an average degree.
53      In the light of all of the foregoing considerations, the applicant’s argument that the marks at issue are visually, phonetically and conceptually similar to an average degree must be upheld.
The global assessment of the likelihood of confusion
54      The Board of Appeal found that, despite the coincidences between the marks at issue, which were based on weakly distinctive elements, the differences, in particular the visual differences, had a greater impact in the global assessment of the likelihood of confusion. It pointed out that the expression ‘centro de’, which is placed at the beginning of the earlier sign, differentiated those marks sufficiently. Consequently, in accordance with, first, the principle of interdependence between the relevant factors to be taken into consideration in the assessment of the similarity of the marks at issue, and, in particular, between the similarity of the trade marks and that of the goods or services at issue and, secondly, the principle that weakly distinctive elements are usually incapable of identifying the commercial origin of goods and services, the Board of Appeal concluded that there was no likelihood of confusion.
55      The applicant submits, in essence, that the Board of Appeal did not correctly apply the principle of interdependence between the similarity of the marks and that of the goods or services covered, according to which it had to take into account the relationships between the various factors involved in the assessment of the likelihood of confusion from the perspective of the relevant public and its perception of the marks at issue. The applicant also sees no difference between the terms ‘frutologia’ and ‘fruitology’ and, consequently, takes the view that the Board of Appeal erred in finding to the contrary and in stating that the differences between the marks at issue had a greater impact in the global assessment of the likelihood of confusion. However, the applicant acknowledges that the earlier mark contains the expression ‘centro de’ at the beginning and that, usually, the beginning of a sign attracts the attention of consumers more. Nevertheless, it takes the view that that is not a fixed rule and that its application depends on the facts of the case. The applicant thus concludes that there is a likelihood of confusion.
56      EUIPO takes the view that the Board of Appeal correctly applied the principles relating to the comparison of trade marks and took into account that the marks at issue coincide only in a weakly distinctive element and differ in the initial element of the earlier mark. It argues that there is therefore only a low degree of similarity between them. Furthermore, it contends that the principle of interdependence applies to the comparison of all the factors relevant to the global assessment of the likelihood of confusion and thus the fact that, in the present case, the distinctive character of the earlier mark is inherently weak and the fact that the marks at issue come from different languages do not call into question the lack of a likelihood of confusion. In addition, EUIPO takes into account that, first, the principle that the level of likelihood of confusion is proportional to the distinctive character of the earlier mark and, secondly, the principle that, where the marks at issue coincide in a weakly distinctive element, the global assessment of the likelihood of confusion does not, in general, lead to a finding that such a likelihood of confusion exists. Consequently, EUIPO takes the view that the applicant has not shown, in the present case, that the Board of Appeal erred in its assessment of the likelihood of confusion.
57      First of all, it must be borne in mind that, according to the 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 (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). Moreover, in view of the interdependence between the factors to be taken into account, the existence of a likelihood of confusion cannot be ruled out where the distinctive character of the earlier mark is weak (see, to that effect, judgment of 5 March 2020, Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v EUIPO, C‑766/18 P, EU:C:2020:170, paragraph 70 and the case-law cited).
58      Furthermore, where the relevant public consists of two categories of consumers, the public with the lower level of attention must be taken into consideration in order to assess the likelihood of confusion (see, to that effect, judgment of 15 July 2011, Ergo Versicherungsgruppe v OHIM – Société de développement et de recherche industrielle (ERGO), T‑220/09, not published, EU:T:2011:392, paragraph 21).
59      In the present case, as the relevant public’s level of attention varies from average to high, as has been stated in paragraph 21 above, it is necessary, for the purposes of assessing the likelihood of confusion between the marks at issue, to take into consideration the average level of attention of that public.
60      Furthermore, it is apparent from the foregoing, first, that the services at issue are identical or similar (see also paragraph 21 above) and, secondly, that the signs at issue are visually, phonetically and conceptually similar to an average degree (see paragraph 53 above).
61      Consequently, it must be held, in the context of a global assessment, that there is a likelihood of confusion for a non-negligible part of the relevant public which has an average level of attention, even in a situation where, as found by the Board of Appeal, the earlier mark has only a weak distinctive character. In the light of the identity or similarity of the services in question, the great deal of similarity between the invented words ‘frutologia’ and ‘fruitology’ outweighs the differences between the signs at issue and, in particular, the presence of the expression ‘centro de’ at the beginning of the earlier mark, which is less distinctive than the word ‘frutologia’, with the result that a non-negligible part of the relevant public may be led to think that the services at issue offered under those marks have the same origin or that the mark applied for constitutes a variant of the earlier mark.
62      In the light of the foregoing, the applicant’s second plea must be upheld. Consequently, it is necessary, without there being any need to examine the first plea in the application, to uphold the claim for alteration of the contested decision and thus to annul the decision of the Opposition Division in so far as it had partially rejected the opposition.
IV.    Costs
63      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. In the present case, the applicant has claimed that EUIPO and the other party to the proceedings before EUIPO should be ordered to pay the costs.
64      Under Article 173(1) of the Rules of Procedure, the other party to the proceedings before the Board of Appeal may participate, as intervener, in the proceedings before the General Court by responding to the application in the manner and within the time limit prescribed. Thus, if that party has failed to respond to the application in the manner and within the time limit prescribed, it cannot be considered to be a party with regard to the proceedings before the Court and cannot therefore, pursuant to Article 134(1) of the Rules of Procedure, be ordered to pay the costs.
65      In the present case, the other party to the proceedings before EUIPO has not become an intervener before the Court. Consequently, the applicant’s claim that that other party should be ordered to pay the costs must be rejected.
66      Since EUIPO has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Alters the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 9 June 2023 (Joined Cases R 797/2022-2 and R 804/2022-2) to the effect that the decision of the Opposition Division of EUIPO of 11 March 2022 is partially annulled in so far as it had partially rejected the opposition;
2.      Orders EUIPO to pay the costs.
Kowalik-Bańczyk
Buttigieg
Dimitrakopoulos
Delivered in open court in Luxembourg on 23 October 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.