Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (First Chamber)

9 July 2025 ([\*](#Footnote*))

( EU trade mark – Opposition proceedings – International registration designating the European Union – EU figurative mark +a – Earlier EU figurative mark A+ – No likelihood of confusion – Article 8(1)(b) of Regulation (EU) 2017/1001 – Obligation to state reasons – Article 94(1) of Regulation 2017/1001 – Examination of the facts of EUIPO’s own motion – Article 95(1) of Regulation 2017/1001 – Well-known facts – Refusal of the request for oral proceedings before the Board of Appeal – Article 96(1) of Regulation 2017/1001 )

In Case T‑407/24,

**AirPlus International GmbH,** established in Neu-Isenburg (Germany), represented by R. Kunze, lawyer,

applicant,

v

**European Union Intellectual Property Office (EUIPO),** represented by J. Ivanauskas and V. Ruzek, acting as Agents,

defendant,

the other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court, being

**Alpian SA**, established in Geneva (Switzerland), represented by M. Schneider, lawyer,

THE GENERAL COURT (First Chamber),

composed of R. Mastroianni, President, T. Tóth and S.L. Kalėda (Rapporteur), Judges,

Registrar: J. Čuboň, Administrator,

having regard to the written part of the procedure,

further to the hearing on 29 April 2025,

gives the following

**Judgment**

1        By its action under Article 263 TFEU, the applicant, AirPlus International GmbH, seeks the annulment of the decision of the Second Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 23 May 2024 (Case R 1257/2023-2) (‘the contested decision’).

**Background to the dispute**

2        On 19 March 2020, the intervener, Alpian SA, obtained from the International Bureau of the World Intellectual Property Organization (WIPO) the international registration designating the European Union and bearing the number 1528680 in respect of the figurative mark reproduced below:

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)

3        On 7 May 2020, that international registration was notified to EUIPO under the fourth sentence of Article 3(4) of the Protocol relating to the Madrid Agreement concerning the international registration of marks, adopted at Madrid on 27 June 1989 (OJ 2003 L 296, p. 22), as amended on 12 November 2007.

4        The services in respect of which registration was sought are in Class 36 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, corresponding to the following description: ‘Insurance services; financial affairs; monetary affairs; real estate affairs; investment fund management, administration and brokerage; wealth management; philanthropic financial services; life-insurance advice and brokerage; securities trading services.’

5        On 11 September 2020, the applicant filed a notice of opposition to registration of the mark applied for in respect of the services referred to in paragraph 4 above.

6        The opposition was based on the EU figurative mark, registered on 10 October 2016 under number 15944002, designating goods and services in Classes 9, 35, 36, 38 and 42, and reproduced below:

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)

7        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).

8        On 18 April 2023, the Opposition Division rejected the opposition.

9        On 16 June 2023, 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, in essence, when making a global assessment of the likelihood of confusion, that the visual differences between the signs at issue prevailed over their common visual, phonetic and conceptual characteristics arising from the combination of a letter and a symbol, which in itself had a low degree of distinctiveness. It therefore concluded that, in view of the high level of attention of the relevant public, there was no likelihood of confusion, even for identical services.

**Forms of order sought**

11      The applicant claims that the Court should:

–        annul the contested decision;

–        order EUIPO to pay the costs incurred in the proceedings before the General Court, the Board of Appeal and the Opposition Division.

12      At the hearing, the applicant added to the form of order it sought by requesting that the intervener be ordered to pay the costs.

13      EUIPO contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs in the event that an oral hearing is convened.

14      The intervener contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs, including those relating to the proceedings before the Board of Appeal and the Opposition Division.

**Law**

15      In support of its action, the applicant relies, in essence, on three pleas in law, alleging, first, infringement of Article 8(1)(b) of Regulation 2017/1001, second, infringement of Article 94(1) and Article 95(1) of that regulation, of the right to be heard and of the right to a fair trial and, third, infringement of Article 96(1) of that regulation. At the hearing, the applicant argued that the intervener’s response was inadmissible on the ground that it had been lodged out of time, namely on 21 November 2024.

16      As a preliminary point, as regards the plea of inadmissibility raised by the applicant, it must be noted that, since service of the application on the intervener took place on 24 September 2024, the two-month period referred to in Article 179 of the Rules of Procedure of the General Court, which was extended, pursuant to Article 60 of those rules, on account of distance by a single period of 10 days, expired on 4 December 2024. The response submitted by the intervener on 21 November 2024 is therefore not out of time. The fact, relied on by the applicant, that the application was served on the intervener only at the second attempt is irrelevant in that regard.

17      Next, the Court considers it appropriate to examine the second plea in law first.

***The second plea in law, alleging infringement of** **Article 94****(1) and** **Article 95****(1) of Regulation 2017/1001***

18      The applicant submits, in essence, that the Board of Appeal infringed Article 94(1) and Article 95(1) of Regulation 2017/1001 in so far as, first, it failed to take into account the applicant’s arguments and evidence demonstrating that the real estate services covered by the mark applied for are similar to the financial services covered by the earlier mark. Second, in its view, the Board of Appeal did not provide any evidence in support of its conclusion that, for the services concerned, the visual perception of the signs at issue played a more important role in the assessment of the likelihood of confusion, and did not state the reasons for that conclusion to the requisite legal standard. Third, the Board of Appeal exceeded its power by introducing, on its own initiative, the argument that the combination of the letter ‘a’ and the symbol ‘+’ would be perceived by the relevant public as referring to a credit rating. In addition, the applicant claims it was not given the possibility to submit its comments on those issues.

19      EUIPO and the intervener dispute the applicant’s arguments.

20      Under Article 95(1) of Regulation 2017/1001, in proceedings relating to relative grounds for refusal of registration, EUIPO is restricted in its examination to the facts, evidence and arguments provided by the parties and the relief sought, so that the Board of Appeal may base its decision only on the relative grounds for refusal relied on by the party concerned and on the related facts and evidence presented by the parties.

21      The fact remains that the Board of Appeal is required to decide on all issues which, in the light of the facts, evidence and arguments provided by the parties and the relief sought, are necessary to ensure a correct application of Regulation 2017/1001 and in respect of which it has all the information required in order to be able to take a decision, even if no element of law related to those issues has been relied on by the parties before it (judgment of 18 June 2020, *Primart* v *EUIPO*, C‑702/18 P, EU:C:2020:489, paragraph 41; see, also, judgment of 19 October 2022, *Greenwich Polo Club* v *EUIPO* – *Lifestyle Equities (GREENWICH POLO CLUB)*, T‑437/21, not published, EU:T:2022:643, paragraph 22 and the case-law cited).

22      Furthermore, the Board of Appeal is entitled, where appropriate, to supplement the factual evidence adduced by the parties for the purposes of its examination of whether there is a likelihood of confusion. Indeed, the restriction of the factual basis of the examination by the Board of Appeal, as referred to in paragraph 21 above and provided for in Article 27(2) of Commission Delegated Regulation (EU) 2018/625 of 5 March 2018 supplementing Regulation 2017/1001 and repealing Delegated Regulation (EU) 2017/1430 (OJ 2018 L 104, p. 1), does not preclude it from taking into consideration, in addition to the facts expressly put forward by the parties to the opposition proceedings, facts which are well known, that is, which are likely to be known by anyone or which may be learnt from generally accessible sources (judgment of 22 June 2004, *Ruiz-Picasso and Others* v *OHIM – DaimlerChrysler (PICARO)*, T‑185/02, EU:T:2004:189, paragraph 29).

23      In the context of opposition proceedings based on Article 8(1)(b) of Regulation 2017/1001, the assessment of the similarity of the goods or services in question and of the signs at issue is necessary to ensure the correct application of that regulation, with the result that the adjudicating bodies of EUIPO are required to make those assessments, if necessary of their own motion. As those assessments do not presuppose any matter of fact which is for the parties to establish and do not require the parties to provide facts, arguments or evidence tending to establish the existence of those similarities, EUIPO alone is able to detect and assess the existence thereof having regard to the earlier mark on which the opposition is based (see, to that effect, judgment of 18 June 2020, *Primart* v *EUIPO*, C‑702/18 P, EU:C:2020:489, paragraph 43).

24      In the present case, in the first place, as regards the Board of Appeal’s assessment concerning the comparison between financial services and real estate services, it should be noted that, as is apparent from paragraphs 36 to 39 of the contested decision, it took into consideration both the arguments and evidence put forward by the applicant and those submitted by the intervener. At the end of its assessment of that aspect of the dispute, carried out in accordance with Article 95(1) of Regulation 2017/1001, the Board of Appeal found that real estate services differed from financial services.

25      The fact that the applicant does not share the conclusions which the Board of Appeal drew from the examination of the facts relied on by the parties is a substantive issue which cannot be invoked in the context of the examination of a plea alleging infringement of Article 95 of Regulation 2017/1001 (see, to that effect, judgments of 30 May 2013, *DHL International* v *OHIM* – *Service Point Solutions (SERVICEPOINT)*, T‑218/10, not published, EU:T:2013:281, paragraph 66, and of 7 June 2023, *Medex* v *EUIPO* – *Stein (medex)*, T‑419/22, not published, EU:T:2023:318, paragraph 22).

26      In the second place, as regards the applicant’s argument that the Board of Appeal did not provide any evidence in support of its conclusion that, for financial services, the visual perception of the signs at issue played a more important role in the assessment of the likelihood of confusion, it must be observed that the applicant argued, before the Board of Appeal, that consumers often communicated with financial services providers by telephone; that was disputed by the intervener. It was therefore within the limits of its powers of examination, as governed inter alia by Article 27(2) of Regulation 2018/625, that the Board of Appeal examined the perception of the signs at issue by consumers, in the light of practices on the market for services in the financial sector, taking into consideration both the facts relied on by the parties and well-known facts.

27      In that regard, the fact, relied on by the Board of Appeal in the contested decision, that the choice of banking and financial services is generally made visually, on the basis of an written offer or an offer presented on the internet, must be regarded as a well-known fact within the meaning of the case-law cited in paragraph 22 above (see, to that effect, judgments of 13 July 2012, *Caixa Geral de Depósitos* v *OHIM* – *Caixa d’Estalvis i Pensions de Barcelona (‘la Caixa’)*, T‑255/09, not published, EU:T:2012:383, paragraph 79; of 12 June 2019, *EOS Deutscher Inkasso-Dienst* v *EUIPO* – *IOS Finance EFC (IOS FINANCE)*, T‑583/17, not published, EU:T:2019:403, paragraphs 103 and 104; and of 12 July 2023, *mBank* v *EUIPO* – *European Merchant Bank (EMBANK European Merchant Bank)*, T‑261/22, not published, EU:T:2023:396, paragraph 138). Accordingly, first, the bodies of EUIPO were not required to establish, in their decisions, the accuracy of such a fact and, second, the applicant was entitled to produce documents before the Court to contest its accuracy (see, to that effect, judgment of 10 June 2020, *Louis Vuitton Malletier* v *EUIPO* – *Wisniewski (Representation of a chequerboard pattern),*  T‑105/19, not published, EU:T:2020:258, paragraph 30 and the case-law cited).

28      Against that background, the applicant cannot criticise the Board of Appeal for failing to provide evidence as to its finding, in paragraph 93 of the contested decision, that the choice of banking and financial services was generally made visually. In addition, it must be noted, as observed by EUIPO, that it was for the applicant to prove its claims that the services in question were, to a very large extent, marketed and provided orally.

29      In the third place, as regards the Board of Appeal’s finding, in paragraph 61 of the contested decision, that the combination of the letter ‘a’ and the symbol ‘+’ would be perceived by the relevant public as a reference to a credit rating, it should be noted, as submitted by EUIPO and the intervener, that that finding is a well-known fact within the meaning of the case-law cited in paragraph 22 above. In that regard, it follows from settled case-law that, first, the bodies of EUIPO may base their decisions on well-known facts which have not been relied on before them, without having to establish the accuracy of those facts (see judgment of 10 September 2019, *Oakley* v *EUIPO* – *Xuebo Ye (Representation of a discontinuous ellipse)*, T‑744/18, not published, EU:T:2019:568, paragraphs 57 and 58 and the case-law cited), and, second, an applicant against whom EUIPO relies on such well-known facts may challenge in detail their accuracy before the General Court (see, to that effect, judgments of 22 June 2006, *Storck* v *OHIM*, C‑25/05 P, EU:C:2006:422, paragraphs 50 to 52, and of 10 September 2019, *Representation of a discontinuous ellipse*, T‑744/18, not published, EU:T:2019:568, paragraph 63). It should be noted that the applicant has merely challenged the assessment set out in paragraph 61 of the contested decision, without, however, providing any evidence in support of that challenge.

30      Lastly, in so far as the applicant’s arguments could be interpreted as alleging a failure to state reasons for the contested decision, it must be held that the Board of Appeal stated, to the requisite legal standard, the reasons for that decision, enabling the applicant to understand the reasons for the dismissal of its appeal and the Court to review the legality of that decision. Furthermore, since the Board of Appeal was not required to establish, in its decision, the accuracy of the well-known fact relied on, the applicant cannot validly claim that the grounds are inadequate in that regard.

31      The second plea must therefore be rejected as unfounded.

***The first plea in law, alleging infringement of** **Article 8****(1)(b) of Regulation** **2****017/1001***

32      In support of its first plea, alleging infringement of Article 8(1)(b) of Regulation 2017/1001, the applicant disputes the Board of Appeal’s conclusion that, in the context of the global assessment of the likelihood of confusion, the visual differences between the signs at issue supported the conclusion that, despite their phonetic similarities, there was no likelihood of confusion. According to the applicant, the identity and high degree of similarity of the services in question and the confirmation of a phonetic and conceptual similarity between the signs at issue and the existence of a visual similarity between those signs should have been sufficient to reach the conclusion that there was a likelihood of confusion.

33      EUIPO and the intervener dispute the applicant’s arguments.

34      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. Furthermore, under Article 8(2)(a)(ii) of Regulation 2017/1001, ‘earlier trade marks’ means trade marks registered in a Member State with a date of application for registration which is earlier than the date of application for registration of the EU trade mark.

35      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 at issue and the 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).

36      In the context of the application of 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).

37      In addition, it should be recalled that the global assessment of the likelihood of confusion, in relation to the visual, phonetic or conceptual similarity of the signs at issue, must be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant components. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In that regard, the average consumer normally perceives a mark as a whole and does not proceed to analyse 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).

38      Assessment of the similarity between two marks cannot be limited to taking just one component of a composite trade mark and comparing it with another mark. Rather, the comparison must be made by examining each of the marks at issue as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite trade mark may not, in certain circumstances, be dominated by one or more of its components (see judgment of 12 June 2007, *OHIM* v *Shaker*, C‑334/05 P, EU:C:2007:333, paragraph 41 and the case-law cited). It is only if all the other components of the mark are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, *OHIM* v *Shaker*, C‑334/05 P, EU:C:2007:333, paragraph 42). That could be the case, in particular, where that component is capable on its own of dominating the image of that mark which members of the relevant public retain, with the result that all the other components are negligible in the overall impression created by that mark (judgment of 20 September 2007, *Nestlé* v *OHIM*, C‑193/06 P, not published, EU:C:2007:539, paragraph 43).

*The relevant public*

39      As a preliminary point, it should be noted that the Board of Appeal found that the services in question were aimed at the general public and at business customers with specific professional knowledge or expertise. Furthermore, it found, in paragraph 46 of the contested decision, that, due to the specific nature of those services, the level of attention of the relevant public was ‘quite high’ for the specialised services that were capable of having significant financial consequences for their users. In paragraph 47 of the contested decision, the Board of Appeal found that the relevant public had a ‘high level of attention’.

40      Those findings, which are not called into question by the applicant, must be upheld. As regards the contradiction, alleged by the applicant, between the words used in paragraphs 46 and 47 of the contested decision, it is sufficient to note, as EUIPO stated at the hearing, that both sets of words refer, in essence, and without contradiction, to a ‘high’ degree of attention.

41      In addition, the applicant claims, without further clarification, that the Board of Appeal did not take into account the fact that the level of attention varied in the different Member States of the European Union in so far as the level of education and language skills within professional circles also varied. Since it is an unsubstantiated assertion, that argument must be rejected.

*The comparison of the services in question*

42      The Board of Appeal found that ‘insurance services; financial affairs; monetary affairs; investment fund management, administration and brokerage; wealth management; philanthropic financial services; life insurance advice and brokerage; securities trading services’ covered by the mark applied for were identical or similar to the services covered by the earlier mark. By contrast, it found that the real estate services covered by the mark applied for differed from the financial services covered by the earlier mark.

43      The applicant disputes the latter finding, stating that financial institutions present real estate offers in their windows and at their counters. In support of that argument, the applicant attaches, for the first time before the Court, in Annex 5 to the application, photographs of real estate offers in windows of several German retail banking agencies and, respectively, information on those banks.

44      In that regard, it should be recalled that, in the context of the assessment of the similarity of the goods or services concerned, all the relevant features of the relationship between 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 (judgments of 11 May 2006, *Sunrider* v *OHIM*, C‑416/04 P, EU:C:2006:310, paragraph 85, and of 18 December 2008, *Les Éditions Albert René* v *OHIM*, C‑16/06 P, EU:C:2008:739, paragraph 65).

45      As the Board of Appeal rightly found in paragraph 37 of the contested decision, financial services do not have the same nature, the same intended purpose or the same method of use as real estate services. Whereas financial services are provided by financial institutions for the purposes of managing their clients’ funds and consist of, inter alia, the holding of deposited funds, the remittance of funds, the granting of loans or the performance of various financial operations, real estate services are services connected with a property, namely, in particular, the lease, the purchase, the sale or the management of such a property. Real estate services are not, in principle, provided on the same premises as financial services (see, to that effect, judgments of 11 July 2013, *Metropolis Inmobiliarias y Restauraciones* v *OHIM* – *MIP Metro (METRO)*, T‑197/12, not published, EU:T:2013:375, paragraphs 42 to 45, and of 17 September 2015, *Bankia* v *OHIM* – *Banco ActivoBank (Portugal) (Bankia)*, T‑323/14, not published, EU:T:2015:642, paragraphs 35 and 36).

46      In that regard, without it being necessary to rule on the admissibility of Annex 5 to the application, it should be noted that the examples submitted by the applicant, both in view of their content and their limited number, are not such as to invalidate the Board of Appeal’s finding that the real estate services carried out by the financial institutions were provided by separate branches, with the result that the financial activities were separate from any real estate activities.

47      It follows that the Board of Appeal did not make an error of assessment in finding that the real estate services covered by the mark applied for differed from the financial services covered by the applicant’s earlier mark.

*The comparison of the signs at issue*

48      The Board of Appeal found, in paragraphs 72 to 74 of the contested decision, that the signs at issue had, at most, a low degree of visual similarity, that phonetically they were either highly similar or identical and that, although they conveyed a concept, it is identical in both signs.

49      The applicant does not dispute the Board of Appeal’s assessment concerning the phonetic similarity of the signs at issue; by contrast, the applicant submits that those signs are visually similar to at least an average degree.

50      In that regard, it must be noted that, although the signs at issue contain the same letter ‘a’ and the symbol ‘+’, their representation and combination is very different. In the earlier mark, the grey stylised capital letter ‘A’ and the symbol ‘+’ in lighter grey are intertwined with a different overlapping shade of grey, whereas, in the mark applied for, the symbol ‘+’ and the lower-case letter ‘a’ in a white standard font on a black background are clearly separated. Thus the differences in representation are, visually, clearly perceptible.

51      That is particularly so where, as in the present case, there are very short elements, with the result that the relevant public is more able to perceive such differences easily (see, to that effect, judgment of 23 February 2022, *Ancor Group* v *EUIPO* – *Cody’s Drinks International (CODE-X)*, T‑198/21, EU:T:2022:83, paragraph 31 and the case-law cited).

52      In those circumstances, it must therefore be concluded that, on the basis of an overall impression, the signs at issue can be regarded as having, at most, only a low degree of visual similarity.

53      As regards the applicant’s argument that the Board of Appeal should have come to the conclusion that the signs at issue were conceptually identical, since they refer to the same letter of the alphabet, it should be noted that that argument of the applicant does not call into question the Board of Appeal’s finding that the signs at issue share a common concept referring either to a credit rating or to a superior quality, that concept having a low degree of distinctiveness in the field of financial services (paragraph 74 of the contested decision).

*The distinctiveness of the earlier mark*

54      The Board of Appeal found, in paragraph 83 of the contested decision, that the earlier mark had a relatively low degree of distinctiveness.

55      The applicant disputes that finding, arguing that the Board of Appeal wrongly treated the earlier mark as a mark ‘composed of a single letter’.

56      In that regard, it should be noted that the Board of Appeal expressly acknowledged that the earlier mark did not consist of a single capital letter ‘A’, but also contained the symbol ‘+’. However, it rightly stated that the latter was laudatory and devoid of any distinctiveness and that the capital letter ‘A’, as such, had a minimum degree of distinctiveness.

57      It is true that, according to the case-law, where a sign consists of a highly stylised letter or is accompanied by other relatively elaborate figurative elements, that sign may be recognised as having normal or average distinctive character (see judgment of 9 November 2022, *L’Oréal* v *EUIPO* – *Heinze (K K WATER)*, T‑610/21, not published, EU:T:2022:700, paragraph 56 and the case-law cited).

58      However, in the present case, it should be noted that, as the Board of Appeal found, the capital letter ‘A’ and the symbol ‘+’ are only very slightly stylised. Consequently, the distinctiveness of the earlier mark lies in the combination and the overlapping position of those two slightly stylised elements. Consequently, the Board of Appeal’s finding that the earlier mark had a relatively low degree of distinctiveness is free from any error of assessment.

*The likelihood of confusion*

59      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 lesser degree of similarity between those goods or services may be offset by a greater 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).

60      Nonetheless, the application of the principle of interdependence is not intended to apply mechanically. Thus, whilst it is true that, by virtue of the principle of interdependence, a lesser degree of similarity between the goods or services covered may be offset by a greater degree of similarity between the marks at issue, conversely there is nothing to prevent a finding that, in view of the circumstances of a particular case, there is no likelihood of confusion, even where identical goods are involved and there is a weak degree of similarity between the marks at issue (see, to that effect, judgment of 27 June 2019, *Sandrone* v *EUIPO* – *J. García Carrión (Luciano Sandrone)*, T‑268/18, EU:T:2019:452, paragraphs 95 and 96 and the case-law cited).

61      Furthermore, it follows from settled case-law that, in the context of the global assessment of the likelihood of confusion, the visual, phonetic or conceptual aspects of the signs at issue do not always have the same weight and it is appropriate to examine the objective conditions under which the marks may be present on the market (judgment of 6 October 2004, *New Look* v *OHIM* – *Naulover (NLSPORT, NLJEANS, NLACTIVE and NLCollection)*, T‑117/03 to T‑119/03 and T‑171/03, EU:T:2004:293, paragraph 49; see, also, judgment of 13 July 2012, *‘la Caixa’*, T‑255/09, not published, EU:T:2012:383, paragraph 78 and the case-law cited).

62      Furthermore, where the earlier trade mark and the sign whose registration is sought coincide in the light of 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, to that effect, judgment of 18 June 2020, *Primart* v *OHIM*, C‑702/18 P, EU:C:2020:489, paragraph 53 and the case-law cited).

63      In the present case, as regards, first, the level of attention of the relevant public, it should be noted that, as follows from paragraph 40 above, that level is high. As regards, in particular, the financial services in Class 36, it follows from the case-law that the level of attention of the specialised public and of the general public for financial services is high, since those services are liable to have a direct impact on the economic and financial assets of consumers, they generally involve substantial sums of money and they may have a significant financial consequences (see judgment of 2 March 2022, *Banco de Investimento Global* v *EUIPO* – *Banco BIC Português (EUROBIC)*, T‑125/21, not published, EU:T:2022:102, paragraph 66 and the case-law cited).

64      Second, as regards financial services, the applicant has not called into question the Board of Appeal’s finding that the choice of a financial institution was generally made visually, namely on paper and on prospectuses. In that regard, the applicant merely submits that the Board of Appeal attached too much importance to the visual aspect of the marks at issue.

65      Under the case-law cited in paragraph 27 above, the Court has already held that, for financial services in Class 36, the visual aspect of the signs concerned predominated, since the relevant public perceived those signs on business signs, written documents and prospectuses, when choosing a financial institution for its services and for the accompanying goods. In such a context, the visual aspect of the marks at issue, and thus also the perception of graphic elements, in addition to word elements, was more important than the phonetic aspect of those marks. Furthermore, it should be noted that, as the Board of Appeal found, the same is true of insurance services, which are similar.

66      Furthermore, since the signs at issue are short, it should be noted that the differences between the marks at issue will not escape the relevant public’s attention (see, to that effect, judgment of 4 May 2018, *El Corte Inglés* v *EUIPO* – *WE Brand (EW)*, T‑241/16, not published, EU:T:2018:255, paragraph 54).

67      Third, as stated in paragraph 58 above, the earlier mark has a low degree of inherent distinctiveness.

68      Fourth, it follows from the case-law that such a mark enjoys less extensive protection and that, therefore, the likelihood of confusion is, in such a case, lower (see, to that effect, judgment of 5 March 2020, *Exploitatiemaatschappij De Berghaaf* v *EUIPO* – *Brigade Electronics Group (CORNEREYE)*, T‑688/18, not published, EU:T:2020:80, paragraph 38 and the case-law cited).

69      Thus, the relevant factors referred to in paragraphs 63 to 68 above, considered as a whole, do not support a conclusion in the present case that there is a likelihood of confusion.

70      Consequently, it must be held that the Board of Appeal was right to find that there was no likelihood of confusion in the present case.

71      Accordingly, the first plea must be rejected as unfounded, without it being necessary to rule on the admissibility of Annexes A.1 to A.3 to the intervener’s response, that admissibility having been disputed by the applicant.

***The third plea in law, alleging infringement of Article 96(1) of Regulation 2017/1001***

72      The applicant submits that the Board of Appeal wrongly refused its request for oral proceedings, which would have allowed the applicant to address, in detail, the facts and arguments in the current proceedings and to refute the assertions made for the first time in the contested decision.

73      EUIPO and the intervener dispute the applicant’s arguments.

74      It follows both from the wording of Article 96(1) of Regulation 2017/1001 and from the case-law that that the Board of Appeal has discretion as to whether, where a party requests that oral proceedings be organised, they are really necessary (order of 14 March 2011, *Ravensburger* v *OHIM*, C‑370/10 P, not published, EU:C:2011:149, paragraph 77, and judgment of 16 July 2014, *Langguth Erben* v *OHIM* (*Shape of an alcoholic beverage bottle)*, T‑66/13, not published, EU:T:2014:681, paragraph 88).

75      In the present case, it must be stated that, although the applicant complains that the Board of Appeal did not organise oral proceedings, the applicant has not indicated any circumstance which prevented it from making an effective statement of its position in the written procedure before EUIPO and has not demonstrated how oral proceedings were necessary in the present case.

76      The third plea must therefore be rejected as unfounded.

77      Since none of the pleas put forward by the applicant in support of its claims is well founded, the action must be dismissed in its entirety.

**Costs**

78      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. Since a hearing has taken place and the applicant has been unsuccessful, it must be ordered to pay the costs relating to the proceedings before the Court, in accordance with the forms of order sought by EUIPO and the intervener.

79      In addition, the intervener has submitted that the applicant should also be ordered to pay the costs relating to the proceedings before the Opposition Division and the Board of Appeal. In that regard, it must be noted that, under Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. However, that does not apply to the costs incurred in the proceedings before the Opposition Division. Accordingly, the intervener’s claim that the applicant should be ordered to pay the costs relating to the proceedings before the Opposition Division, which are not recoverable costs, is inadmissible. As regards the intervener’s claim that the applicant should be ordered to pay the costs of the proceedings before the Board of Appeal, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, it is the operative part of the contested decision which continues to determine the costs in question (see, to that effect, judgment of 13 December 2023, *Good Services* v *EUIPO* – *ITV Studios Global Distribution (EL ROSCO)*, T‑381/22, not published, EU:T:2023:799, paragraph 60 and the case-law cited).

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders AirPlus International GmbH to pay the costs.**

|  |  |  |
| --- | --- | --- |
| Mastroianni | Tóth | Kalėda |

Delivered in open court in Luxembourg on 9 July 2025.

|  |  |  |
| --- | --- | --- |
| V. Di Bucci |  | S. Papasavvas |

|  |  |  |
| --- | --- | --- |
| Registrar |  | President |

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[\*](#Footref*)      Language of the case: English.

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