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The background to the dispute and the decision at issue are set out in paragraphs 1 to 15 of the judgment under appeal, as follows: ‘1. On 7 October 2013, the interveners, Mr … Prantner and Mr … Giersch filed an application for registration of an EU trade mark with [EUIPO] under Regulation [No 207/2009]. 2. Registration as a mark was sought for the following figurative sign: 3. The goods and services in respect of which registration was sought are in Classes 16, 39 and 43 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 16: “Printed matter; photographs; stationery; wrapping materials; printed publications; books; handbooks [manuals]; pamphlets; newsletters; albums; newspapers; magazines and periodicals; tickets; vouchers; coupons and travel documents; passes; tags and labels; posters; postcards; calendars; diaries; instructional material”; – Class 39: “Transport; travel arrangement; travel information; provision of car parking facilities; transportation of goods, passengers and travellers by air, land, sea and rail; airline and shipping services; airport check-in services; arranging of transportation for passengers, goods and trips by land and sea; airline services; baggage handling services; cargo handling and freight services; arranging, operating and providing facilities for cruises, tours, excursions and vacations; aircraft chartering; rental and hire of aircraft, cars and boats; taxi services; bus services; chauffeuring; coach services; train services; airport transfer services; airport parking services; aircraft parking services; escorting of travellers; travel agency services; advisory, consultancy and information services relating to all the aforesaid services; providing information regarding transportation services; providing travel information online; travel booking via computer databases or the Internet”; – Class 43: “Services for providing food and drink, temporary accommodation; restaurant and bar services; food and drink catering; provision of holiday accommodation; booking and reservation services for restaurants and holiday accommodation; hotels and/or restaurants; reservations in connection with running hotels.” 4. The EU trade mark application was published in the European Union Trade Marks Bulletin No 225/2013 of 26 November 2013. 5. On 26 February 2014, the applicant, FTI Touristik …, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of the goods and services referred to in paragraph 3 above. 6. The opposition was based on the following earlier EU figurative mark: designating the following goods and services in Classes 16, 39, 41 and 43, and corresponding, for each of these classes, to the following description: – Class 16: “Printed matter, in particular catalogues, prospectuses, information material; office requisites (other than furniture); instructional and teaching material, included in class 16; globes, atlases; paper, cardboard and goods made from these materials (included in class 16); stationery; plastic materials for packaging, including plastic bags, included in class 16, sleeves of plastic, in particular for travel documents”; – Class 39: “Transport, including the organising and rental of transport; travel planning, arranging, booking and organising, including the aforesaid services using electronic devices; tourist services; sightseeing (tourism), escorting of travellers; transportation and travel information, including the aforesaid services using electronic devices”; – Class 41: “Education; providing of training; hostess services and entertainment; sporting and cultural activities; providing recreation facilities; publication of printed matter and electronic media relating thereto (including CD-ROMs and CD-Is); rental of films, recorded videos, cinematographic, radio, television apparatus, sports equipment; arranging and conducting of conferences, congresses, symposiums, meetings and seminars”; – Class 43: “Accommodation reservations; accommodation services; providing of food and drink and temporary accommodation; services for providing food and drink and temporary accommodation in hotels and restaurants, including the organising of tourist homes and holiday homes.” 7. The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009 (now Article 8(1)(b) of Regulation 2017/1001). 8. On 3 February 2015, the Opposition Division upheld the opposition and rejected the trade mark application in respect of all the goods and services in question. 9. On 26 February 2015, the interveners filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009 (now Articles 66 to 71 of Regulation 2017/1001), against the decision of the Opposition Division. 10. By [the decision at issue], the Fifth Board of Appeal of EUIPO annulled the decision of the Opposition Division. 11. It noted, first, in paragraph 19 of the [decision at issue], that the goods and services in question were intended for both the public at large and a specialist public, and that it was appropriate to concern oneself with the public which has the lowest level of attention, namely the public at large with an average level of attention. It then took the view, in paragraph 20 of the [decision at issue], that the relevant territory for the purpose of assessing the likelihood of confusion was the whole European Union, before stating that the opposition was to be upheld even if there was a likelihood of confusion in one Member State only. 12. With regard to the comparison of goods and services, the [Fifth] Board of Appeal [of EUIPO] approved, in paragraph 25 of the [decision at issue], the conclusion, undisputed before it, of the Opposition Division, as set out in paragraph 24 of the [decision at issue], that the goods and services in question were in part identical and in part similar. It thus found that the goods, in Class 16, covered by the mark applied for and the goods, also in Class 16, covered by the earlier mark were identical. Similarly, it concluded that the services in Class 39, covered by the mark applied for, and those also in Class 39, covered by the earlier mark, were identical, except the services relating to the “provision of car parking facilities; airport parking services; aircraft parking services” which were found to be similar to the “Transport” service of the earlier mark. Lastly, it took the view that all the services in Class 43 of the mark applied for were identical to those of Class 43 also of the earlier mark, except the “booking and reservation services for restaurants and holiday accommodation” which bear similarity to the “providing of food and drink and temporary accommodation” of the earlier mark. 13. The [Fifth] Board of Appeal [of EUIPO] also proceeded to examine the signs at issue and found, in paragraph 32 of the [decision at issue], that they were not visually similar. Phonetically, it found, in essence, in paragraphs 33 and 34 of the [decision at issue], that for the public that did not know the English term “fly”, the signs at issue bore no similarity. For consumers that did know the English word “fly”, there was a phonetic similarity provided that the mark applied for was associated with the word “fly”. However, this seemed rather unlikely since, first, there was a great difference between the letter “y” and the stylised heart in the mark applied for and, secondly, it was unusual to replace the letter “y” with a heart symbol. Conceptually, it found, in essence, in paragraphs 35 and 36 of the [decision at issue], that, for the public that did not know the English term “fly”, the signs at issue bore no similarity. For consumers that did know and understand the English word “fly”, there was a conceptual similarity provided that the word “fly” was identified in the mark applied for. However, this seemed unlikely for the same reasons as those set out in the context of the assessment of the phonetic similarity. 14. The [Fifth] Board of Appeal [of EUIPO] found, in paragraph 40 of the [decision at issue], that the earlier mark had an average inherent distinctive character for the non-English-speaking consumers and a weak inherent distinctive character for the English-speaking public. 15. With regard to the assessment of the likelihood of confusion between the signs at issue, the [Fifth] Board of Appeal [of EUIPO] concluded, in paragraph 47 of the [decision at issue], that there was no such likelihood. It noted, in that respect, in paragraph 46 of the [decision at issue], that, due to the purely descriptive nature of the common element, the phonetic, conceptual and especially visual differences between the signs were sufficient to rule out with certainty a likelihood of confusion, including for identical goods and services.’