CELEX: 62003TJ0117
Language: en
Date: 2004-10-06
Title: Judgment of the General Court (Second Chamber) of 6 October 2004.#New Look Ltd v European Union Intellectual Property Office.#Joined Cases T-117/03 to T-119/03 and T-171/03.

Joined Cases T-117/03 to T-119/03 and T-171/03
      New Look Ltd
      v
      Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
      (Community trade mark – Opposition proceedings – Earlier Community figurative mark comprising the letter combination ‘NL’ – Applications for Community figurative marks comprising the terms ‘NLSPORT’, ‘NLJEANS’, ‘NLACTIVE’ and ‘NLCollection’ – Relative ground for refusal – Likelihood of confusion – Similarity of the signs – Article 8(1)(b) of Regulation (EC) No 40/94)
      Judgment of the Court of First Instance (Second Chamber), 6 October 2004 
      Summary of the Judgment
      1.     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition
            by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Mark applied
            for constituted by a complex mark – Perception by the public of descriptive elements as distinctive and dominant elements
            – None – Earlier mark constituted by a Community trade mark – Refusal of registration where there is a relative ground for
            refusal, even limited to part of the Community
      (Council Regulation No 40/94, Art. 8(1)(b))
      2.     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition
            by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood
            of confusion with the earlier mark – Public’s level of attentiveness – Statement by applicant for trade mark that there is
            a particularly high level in a given sector – Burden of proof 
      (Council Regulation No 40/94, Art. 8(1)(b))
      3.     Community trade mark – Definition and acquisition of the Community trade mark – Signs capable of constituting a mark – Signs
            composed of a letter or letter combination – Relative grounds for refusal – Opposition by the proprietor of an earlier identical
            or similar mark registered for identical or similar goods or services – Likelihood of confusion with the earlier mark – Criteria
            for assessment 
      (Council Regulation No 40/94, Art. 8(1)(b))
      4.     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition
            by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood
            of confusion with the earlier mark – Weighing of the elements of similarity or difference between the signs – Account to be
            taken of the inherent qualities of the signs or the conditions under which goods or services are marketed – Clothing sector
      (Council Regulation No 40/94, Art. 8(1)(b))
      5.     Community trade mark – Definition and acquisition of the Community trade mark – Relative grounds for refusal – Opposition
            by the proprietor of an earlier identical or similar mark registered for identical or similar goods or services – Likelihood
            of confusion with the earlier mark – Figurative marks ‘NLSPORT’, ‘NLJEANS’, ‘NLACTIVE’, ‘NLCollection’ and figurative mark
            ‘NL’
      (Council Regulation No 40/94, Art. 8(1)(b))
      1.     When assessing the similarity of a complex mark with an earlier mark, for the purposes of Article 8(1)(b) of Regulation No
         40/94 on the Community trade mark, it should be noted that the public will not generally consider a descriptive element forming
         part of a complex mark as the distinctive and dominant element of the overall impression conveyed by that mark. Where opposition
         is based on the existence of a Community mark, it is sufficient in that regard for the purposes of a possible refusal of registration
         that the descriptive nature of such an element be perceived in a part of the Community’s territory. Although Article 8 of
         Regulation No 40/94 does not contain a provision similar to Article 7(2) of that regulation, it follows from the principle
         of the unitary character of the Community trade mark set down in Article 1(2) of that regulation that registration must be
         refused even if a relative ground for refusal obtains in only part of the Community.
      
      (see para. 34)
      2.     Whilst it is true, when assessing a likelihood of confusion for the purposes of Article 8(1)(b) of Regulation No 40/94 on
         the Community trade mark, that the average consumer’s level of attention may vary according to the category of goods or services
         in question, it is not sufficient for a trade mark applicant simply to assert that in a particular sector the consumer is
         particularly attentive to trade marks without supporting that claim with facts or evidence.
      
      (see para. 43)
      3.     It is clear from the wording of Article 4 of Regulation No 40/94 on the Community trade mark that the legislature expressly
         included signs composed of a letter or letter combination in the list of examples of signs which may constitute a Community
         trade mark, subject to any absolute or relative grounds for refusal upon which opposition to registration may be based. 
      
      In that regard, Articles 7 and 8 of Regulation No 40/94 concerning refusal of registration do not lay down specific rules
         for signs composed of a letter combination not forming a word. It follows that the global assessment of the likelihood of
         confusion between such signs pursuant to Article 8(1)(b) of that regulation in principle follows the same rules as that in
         respect of word signs comprising a word, a name or an invented term.
      
      (see paras 47-48)
      4.     In the global assessment of the likelihood of confusion for the purposes of Article 8(1)(b) of Regulation No 40/94 on the
         Community trade mark, the visual, aural or conceptual aspects of the opposing signs 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. The extent of the
         similarity or difference between the signs may depend, in particular, on the inherent qualities of the signs or the conditions
         under which the goods or services covered by the opposing signs are marketed. 
      
      As regards the clothing sector, if the goods covered by the mark in question are usually sold in self-service stores where
         consumers choose the product themselves and must therefore rely primarily on the image of the trade mark applied to the product,
         the visual similarity between the signs will as a general rule be more important. If on the other hand the product covered
         is primarily sold orally, greater weight will usually be attributed to any aural similarity between the signs.
      
      (see para. 49)
      5.     For the average European Community consumer, there is a likelihood of confusion between, on the one hand, the figurative signs
         ‘NLSPORT’, ‘NLJEANS’, ‘NLACTIVE’ and ‘NLCollection’, registration of which as Community trade marks is being sought, in relation
         to the first three signs, in respect of ‘articles of clothing, footwear and headgear for women and girls’ and, in relation
         to the fourth sign, in respect of ‘articles of clothing, footwear and headgear’, all falling within Class 25 of the Nice Classification,
         and, on the other hand, the figurative mark ‘NL’, previously registered as a Community trade mark in respect of ‘sweaters;
         jerseys; waistcoats; jackets; skirts; trousers; shirts; blouses; dressing gowns; underwear; gowns; bathing costumes; raincoats;
         dresses; stockings; socks; scarves; neckties, headgear and gloves (clothing)’, also falling within Class 25 of the Nice Classification.
      
      Given the identity of the goods and the conditions under which they are marketed, in which the consumer may perceive the marks
         applied for as special lines originating from the undertaking which is the proprietor of the earlier mark, the degree of phonetic
         and conceptual similarity between the signs at issue suffices to establish the existence of a likelihood of confusion.
      
      (see paras 40, 51-52)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)6 October 2004(1)
         
         
               (Community trade mark  –  Opposition proceedings  –  Earlier Community figurative mark comprising the letter combination ‘NL'  –  Applications for Community figurative marks comprising the terms ‘NLSPORT', ‘NLJEANS', ‘NLACTIVE' and ‘NLCollection'  –  Relative ground for refusal  –  Likelihood of confusion  –  Similarity of the signs  –  Article 8(1)(b) of Regulation (EC) No 40/94)
               
             In Joined Cases T-117/03 to T-119/03 and T-171/03,
            
            
            New Look Ltd, established in Weymouth, Dorset (United Kingdom), represented by R. Ballester and G. Marín, lawyers,
            
            
            applicant,
            
            v
            Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), represented by O. Montalto, J. García Murillo and S. Laitinen, acting as Agents, 
            
            defendant,
            
             FOUR ACTIONS brought against the decisions of the First Board of Appeal of OHIM of 27 January 2003 (R 95/2002-1, R 577/2001-1
            and R 578/2001-1) and 15 April 2003 (R 19/03-1) relating to opposition proceedings between Naulover SA and New Look Ltd, 
            
            
            THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Second Chamber),
            
            
             composed of: J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges, 
            
             Registrar: J. Palacio González, Principal Administrator,
             having regard to the applications lodged at the Registry of the Court of First Instance on 4 April 2003 (Cases T-117/03 to
            T-119/03) and 19 May 2003 (Case T-171/03),having regard to OHIM's responses lodged at the Registry of the Court of First Instance on 25 September 2003 (Cases T-117/03
            to T-119/03) and 8 October 2003 (Case T-171/03),having regard to the order of the President of the Second Chamber of the Court of First Instance of 1 April 2004 joining the
            cases for the purposes of the hearing and judgment,following the hearing on 28 April 2004 at which the applicant did not appear,
            
            
         gives the following
         
         
         Judgment
            
               Background to the dispute
            
         
         1
            
          On 5 May 1998 (in Cases T-117/03 to T-119/03) and 19 February 1999 (in Case T-171/03), the applicant filed an application
         at the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) under Council Regulation (EC) No 40/94
         of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), as amended, for registration of four Community trade
         marks.
         
         
         
         2
            
          The marks in respect of which registration was sought were the following figurative signs:
         
         
         
          
         –
            in Case T-117/03:
         
         
         
         
         
         
         
         
          
         –
            in Case T-118/03:
         
         
         
         
         
         
         
          
         –
            in Case T-119/03:
         
         
         
         
         
         
         
          
         –
            in Case T-171/03:
         
         
         
         
         
         
         3
            
          The goods in respect of which registration was sought and with which the present dispute is concerned are within Class 25
         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: ‘Articles of clothing, footwear
         and headgear for women and girls’ in the applications for the marks NLSPORT, NLJEANS and NLACTIVE, and ‘Articles of clothing,
         footwear and headgear’ in the application for the mark NLCollection.
         
         
         
         4
            
          On 11 June 1999 (Cases T-117/03 to T-119/03) and 3 January 2000 (Case T‑171/03), the other party to the proceedings before
         the Board of Appeal gave notice, pursuant to Article 42(1) of Regulation No 40/94, of opposition to each of the applications
         for a Community trade mark.
         
         
         
         5
            
          The opposition in each case was based on the existence of Community Figurative Mark No 13417 (‘the earlier trade mark’), applied
         for on 1 April 1996 and registered on 1 February 1999, which is reproduced here: 
         
         
         
         
         
         6
            
          That trade mark is registered for the following goods which are all within Class 25 of the Nice Classification: ‘Sweaters;
         jerseys; waistcoats; jackets; skirts; trousers; shirts; blouses; dressing gowns; underwear; gowns; bathing costumes; raincoats;
         dresses; stockings; socks; scarves; neckties, headgear and gloves (clothing).’
         
         
         
         7
            
          In support of its oppositions the other party to the proceedings before OHIM invoked the relative ground for refusal under
         Article 8(1)(b) of Regulation No 40/94.
         
         
         
         8
            
          By decisions of 10 April 2001 (Decision No 939/2001 in Case T-119/03), 27 April 2001 (Decision No 1106/2001 in Case T-118/03),
         23 November 2001 (Decision No 2765/2001 in Case T-117/03) and 29 October 2002 (Decision No 3138/2002 in Case T-171/03), the
         Opposition Division dismissed those oppositions. The Opposition Division considered essentially that the marks in question
         were visually and phonetically different and that none of them had any particular conceptual meaning.
         
         
         
         9
            
          On 7 June 2001 (Cases T-118/03 and T-119/03), 22 January 2002 (Case T‑117/03) and 24 December 2002 (Case T-171/03), the other
         party to the proceedings before the Board of Appeal filed a notice of appeal against each of the Opposition Division’s decisions.
         
         
         
         10
            
          By decisions of 27 January 2003 (Cases T-117/03 to T-119/03) and 15 April 2003 (Case T-171/03), the First Board of Appeal
         of OHIM annulled the decisions of the Opposition Division and dismissed the applications for a Community trade mark for all
         the goods within Class 25 of the Nice Classification. The Board of Appeal essentially considered, first, that the dominant
         element of each of the marks applied for was the letter combination ‘NL’ since the words ‘sport’, ‘jeans’, ‘active’ and ‘collection’
         are only slightly distinctive in the clothing industry. Next, it found that the opposing Community trade marks were only slightly
         visually similar because of the particular conception of the written form of the earlier mark and the presence of the words
         ‘sport’, ‘jeans’, ‘active’ and ‘collection’ in the marks NLSPORT, NLJEANS, NLACTIVE and NLCollection in respect of which registration
         is sought. By contrast, the Board of Appeal found that the opposing Community trade marks were phonetically and conceptually
         similar because the letter combination ‘NL’ which constitutes the earlier trade mark is reproduced as the dominant element
         in the marks NLSPORT, NLJEANS, NLACTIVE and NLCollection in respect of which registration is sought. The Board of Appeal considered
         that in the clothing industry, it is common for the same trade mark to have different configurations depending on the type
         of goods to which it refers and that sub-brands are often used to distinguish the different product ranges. It considered
         therefore that the consumer could be misled into thinking that the goods of the marks NLSPORT, NLJEANS and NLACTIVE in respect
         of which registration is sought belong to lines for young people or, in the case of the mark NLCollection, that it relates
         to new lines brought out each season, whereas the goods of the earlier mark belong to a more sophisticated range of clothing.
         The Board of Appeal concluded from this that there was a likelihood of confusion within the meaning of Article 8(1)(b) of
         Regulation No 40/94.
         
         Forms of order sought
         
         11
            
          The applicant claims in each case that the Court should:
         
         
         
          
         –
            annul the decision of the Board of Appeal; 
         
         
         
         
          
         –
            order OHIM and, where applicable, the intervener to pay the costs of the present proceedings and of the proceedings before
               the Board of Appeal.
            
         
         
         
         
         
         12
            
          OHIM contends in each case that the Court should: 
         
         
         
          
         –
            dismiss the action;
         
         
         
         
          
         –
            order the applicant to pay the costs.
         
         
         
         LawArguments of the parties
         
         13
            
          Except in certain minor respects, the pleas and arguments of the parties are the same in all four of the present cases. In
         support of its actions the applicant raises a single plea in law alleging infringement of Article 8(1)(b) of Regulation No
         40/94. 
         
         
         
         14
            
          First, the applicant submits that the Board of Appeal erred in its analysis of the trade marks applied for by concentrating
         on the letter combination ‘NL’ and thus by separating those letters from the words which follow, namely ‘sport’, ‘jeans’,
         ‘active’ and ‘collection’.
         
         
         
         15
            
          Second, the applicant considers that the letter combination ‘NL’ is neither the dominant element of each of the marks applied
         for nor the constituent element of the earlier Community trade mark. As regards, first, the marks in respect of which registration
         is sought, the applicant challenges the finding that the words ‘sport’, ‘jeans’, ‘active’ and ‘collection’ are slightly distinctive
         in the industry in question. Next, as regards the earlier trade mark, the applicant submits that it is impossible to determine
         with certainty the letters of which it is composed. According to the applicant, besides the letters ‘NL’, it could be the
         letters ‘ALV’, ‘AVOL’, ‘AOL’ or ‘AL’. It further considers that if the consumer perceives the earlier trade mark back to front,
         it is possible to discern the letters ‘JRV’ or ‘JPV’. Finally, the applicant adds that according to settled case-law and academic
         opinion, trade marks composed of only two or three letters are inherently slightly distinctive and those letters cannot therefore
         constitute the dominant element of a sign. In support of its argument, the applicant refers to paragraph 8.3 of OHIM’s guidelines
         on examination and cites a judgment of 21 January 1993 of the Tribunal Supremo (Spanish Supreme Court) according to which
         it is not possible to appropriate the phonetic aspect of particular letters of the alphabet for one’s own use. It further
         points to the coexistence of several registered trade marks at national and Community level comprising the letter combination
         ‘NL’. 
         
         
         
         16
            
          Third, the applicant points out that, as regards the visual aspect of the signs in question, the earlier mark is ‘distinctly
         baroque in character’. It claims that the Board of Appeal failed to recognise the importance of that figurative character.
         
         
         
         17
            
          Fourth, the applicant considers that the Board of Appeal’s reasoning in respect of the phonetic similarity of the signs is
         inconsistent in so far as it finds simultaneously that the marks in question are phonetically both similar and identical.
         Furthermore, the applicant complains that the Board of Appeal focused its comparison on the letter combination ‘NL’.
         
         
         
         18
            
          The applicant submits, lastly, that the average consumer in the clothing sector is particularly attentive to trade marks when
         buying clothes, so that it is difficult for him or her to be misled.
         
         
         
         19
            
          According to OHIM, the applicant’s criticism is unfounded. It considers that there is a likelihood of confusion between the
         earlier trade mark and the marks in respect of which registration is sought for the reasons set out in the decisions of the
         Board of Appeal.
         
         
         
         20
            
          OHIM denies that the average consumer in the clothing sector is particularly well informed and attentive. At the hearing,
         OHIM stated that the degree of attention that the consumer pays to the mark depends in particular on the value of the product
         in question and the degree of specialisation of the target public. In the present case, the applicant merely asserts, without
         any explanation supported by evidence, that the degree of attention that the consumer pays to trade marks is higher in the
         clothing sector than in other sectors.
         
         
         
         21
            
          OHIM contends that the opposing signs are aurally and conceptually similar. At the hearing OHIM stated that the fact that
         the dominant element of those signs is a letter combination does not imply that greater weight should be attributed to the
         different visual features than to the phonetic and conceptual similarity of the signs. OHIM recognises that, as a general
         rule, the figurative element does render distinctive a sign constituted of a letter or combination of two letters, but it
         emphasises that the assessment of the likelihood of confusion is also governed by other principles. In its view, if a sign
         is in fact distinctive, even slightly, and was validly registered as a trade mark, that mark qualifies for protection under
         Article 8(1)(b) of Regulation No 40/94. OHIM does not exclude the possibility of according different weight to the visual,
         phonetic and conceptual similarity of the signs in question depending on the conditions in which the goods are marketed on
         the specific market. Given that the goods in question are identical and that the use of sub-brands is common in the clothing
         industry, OHIM considers that there is a likelihood of confusion in the present case.
         
         Findings of the Court
         
         22
            
          Under Article 8(1)(b) of Regulation No 40/94, 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. Under Article 8(2)(a)(i) of Regulation No 40/94, earlier trade marks
         means, inter alia, Community trade marks in respect of which the date of application for registration is earlier than that
         for registration of the Community mark.
         
         
         
         23
            
          According to settled case-law, a likelihood that the public might believe that the goods or services in question come from
         the same undertaking or, as the case may be, from economically-linked undertakings constitutes a likelihood of confusion.
         
         
         
         24
            
          According to that case-law, the likelihood of confusion must be assessed globally, in the light of the perception of the signs
         and the goods or services in question on the part of the relevant public and, taking into account all factors relevant to
         the case, in particular the interdependence of the similarity of the signs and that of goods or services identified (Case
         T-162/01 RTB v OHIM – Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) [2003] ECR II-0000, paragraphs 31 to 33, and the case-law cited there).
         
         
         
         25
            
          In this case, the goods in question (clothing, particularly clothing for women and girls) are everyday consumer items (Case
         T-104/01 Oberhauser v OHIM– Petit Liberto (Fifties) [2002] ECR II-4359, paragraph 29, and Case T-292/01 Phillips-Van Heusen v OHIM – Pash Textilvertrieb und Einzelhandel (BASS) [2003] ECR II-0000, paragraph 43). The trade mark on which the opposition is based is registered as a Community trade mark.
         It follows that the relevant public by reference to which the likelihood of confusion must be assessed is composed of average
         consumers in the European Community.
         
         
         
         26
            
          It is not in dispute between the parties that the goods covered by the trade marks applied for are partly similar and partly
         identical.
         
         
         
         27
            
          In those circumstances, the outcome of the action depends on the degree of similarity between the signs in question. As is
         clear from settled case-law, the global assessment of the likelihood of confusion, as far as concerns the visual, aural or
         conceptual similarity of the opposing signs, must be based on the overall impression given by those signs, bearing in mind,
         inter alia, their distinctive and dominant components (see BASS, paragraph 47, and the case-law cited).
         
         
         
         28
            
          As regards their visual aspect, the Board of Appeal described the earlier trade mark as being ‘formed of two capital letters,
         “NL”, aligned vertically and with a design font called, in English, “Stephenson Blake”, sloping to the right’ (paragraph 32
         of the decision of the Board of Appeal in Case T-117/03, paragraph 31 of the decisions of the Board of Appeal in Cases T-118/03
         and T-119/03, and paragraph 28 of the decision of the Board of Appeal in Case T-171/03). The Court finds that description
         to be accurate. In the earlier trade mark, the letter ‘L’ is clearly recognisable. It is positioned below and to the right
         of the other letter. Since text is normally read from left to right and from top to bottom, the letter ‘L’ is not the first
         in the letter combination. Between the left part of the letter ‘N’, which could form the apex of a letter ‘A’, and the upper
         part of the letter ‘L’ there is a space in which it may clearly be seen that it is not the transversal bar of a letter ‘A’.
         Therefore the first letter will not be read as an ‘A’. Moreover, the upper part of the letter ‘L’ cannot be read as forming
         a letter ‘O’. Finally, it should be noted that it is necessary to compare the signs as they are protected and not as they
         might be perceived by the consumer reading them back to front. Accordingly, the applicant’s doubts about how the earlier sign
         might be perceived are not justified. 
         
         
         
         29
            
          Each of the signs applied for is made up of a figurative sign composed of the letters ‘NL’, followed directly by a word in
         capital letters in Cases T-117/03 to T‑119/03 and by a word comprising a capital letter and nine lower-case letters in Case
         T-171/03. In each sign, the letter combination ‘NL’ appears in bold type whilst the other letters are printed in normal type.
         It follows that the letters ‘NL’ are the dominant visual element of each of the trade marks applied for, as stated – rightly
         – in the decisions of the Board of Appeal.
         
         
         
         30
            
          OHIM rightly points out that the signs applied for are similar in morphosyntactical structure. Only NLCollection differs slightly
         in that the sign is not composed entirely of capital letters and the word NLCollection is enclosed in a black rectangular
         frame. Even if the applicant rightly criticises the fact that the decision of the Board of Appeal of 15 April 2003, by following
         the model of the decisions of 27 January 2003, has not taken account of those particularities, the Board of Appeal’s assessment
         of the visual aspect of the sign remains correct in that the letter combination ‘NL’ constitutes the dominant visual element
         of ‘NLCollection’ in respect of which registration is sought.
         
         
         
         31
            
          When comparing visually the earlier sign and the signs applied for, the Board of Appeal found there to be slight similarity.
         The applicant has not challenged that finding.
         
         
         
         32
            
          As regards the conceptual similarity of the signs in question, it should be noted that the signs applied for are composed
         of the letters ‘NL’ and the words ‘sport’, ‘jeans’, ‘active’ and ‘collection’. The earlier trade mark consists solely of the
         letter combination ‘NL’. As the Board of Appeal rightly found, ‘NL’ has no meaning in the clothing sector.
         
         
         
         33
            
          By contrast, as OHIM rightly pointed out, the words ‘sport’, ‘jeans’, ‘active’ and ‘collection’ in the English and French
         languages each have a conceptual content descriptive of the goods covered. In the clothing sector, the word ‘sport’ evokes
         the idea of sportswear or clothing which is sporting in style. The word ‘jeans’ is identified as descriptive of denim clothes.
         The word ‘collection’ refers to a group of items of clothing designed for one season. The word ‘active’ refers rather to the
         use of the goods, namely clothes for active people or which allow them to be active.
         
         
         
         34
            
          The Court notes that the public will not generally consider a descriptive element forming part of a complex mark as the distinctive
         and dominant element of the overall impression conveyed by that mark (Case T-129/01 Alejandro v OHIM – Anheuser-Busch (BUDMEN) [2003] ECR II-0000, paragraph 53). In this regard it suffices that the descriptive nature of such an element is perceived
         in a part of the Community. Although Article 8 of Regulation No 40/94 does not contain a provision similar to Article 7(2)
         of that regulation, the Court has inferred from the principle of the unitary character of the Community trade mark set down
         in Article 1(2) of that regulation that registration must be refused even if a relative ground for refusal obtains in only
         part of the Community (Case T-355/02 Mühlens v OHIM – Zirh International (ZIRH) [2004] ECR II-0000, paragraphs 35 and 36, appeal pending).
         
         
         
         35
            
          In the present case, the signs applied for contain elements which have a conceptual content descriptive of the goods covered,
         at least for the English-speaking public and French-speaking public. The Board of Appeal therefore rightly found that, at
         least for them, the dominant conceptual element of each of the marks applied for is the letter combination ‘NL’ which is the
         sole element of the earlier trade mark.
         
         
         
         36
            
          As for aural similarity, it should be noted that, in the light of the assessment made at paragraphs 28 to 30 above in respect
         of visual similarity, since the earlier trade mark is composed of the letters ‘N’ and ‘L’, it will be pronounced as ‘N-L’
         in the majority of languages of the European Community including in particular French and English. NLSPORT will, at least
         in French or English, be pronounced ‘N-L-sport’. The other marks applied for will be pronounced ‘N-L-jeans’, ‘N-L-active’
         and ‘N-L-collection’. It follows that aurally the letter combination ‘N-L’ which constitutes the earlier mark is included
         in each of the marks applied for. At least for French- and English-speaking consumers, the words sport, jeans, active and
         collection will be perceived as descriptive elements of the goods or of their intended use. Therefore, the letter combination
         ‘NL’ constitutes – at least for that public – the dominant phonetic element. The findings of the Board of Appeal at paragraphs
         33 (Case T-117/03), 32 (Cases T-118/03 and T-119/03) and 29 (Case T-171/03) of the decisions of the Board of Appeal must therefore
         be upheld. It must also be stated that the Board did not find that there was phonetic identity between the signs but phonetic
         identity between the dominant element of the signs applied for, ‘NL’, and the letter combination ‘NL’ of the earlier trade
         mark.
         
         
         
         37
            
          The fact that the sign comprising the earlier mark is wholly incorporated in the dominant element of each of the signs applied
         for justifies the conclusion that there is significant phonetic similarity (see, for the opposite case, Fifties, paragraph 40).
         
         
         
         38
            
          The applicant submits that the Board of Appeal did not carry out a global assessment of the similarity of the signs but separated
         the signs applied for into the letter combination ‘NL’ and the words ‘sport’, ‘jeans’, ‘active’ or ‘collection’.
         
         
         
         39
            
          It should be noted in this regard that, whilst the average consumer normally perceives a mark as a whole and does not proceed
         to analyse its various details (Case C-251/95 SABEL [1997] ECR I-6191, paragraph 23), in general it is the dominant and distinctive features of a sign which are more easily
         remembered (see, to that effect, Fifties, paragraphs 47 and 48). Consequently, the Board of Appeal cannot be criticised for having examined what are, in the consumer’s
         perception, the distinctive and dominant elements of the marks which the consumer will retain in mind.
         
         
         
         40
            
          Accordingly the Board of Appeal did not err in law in finding that there was phonetic and conceptual similarity between the
         signs in question.
         
         
         
         41
            
          As regards the global assessment of the likelihood of confusion, the Board of Appeal concluded that there was such a likelihood
         given the phonetic and conceptual similarity of the signs, the identity of the goods and the conditions under which they were
         marketed in the clothing sector in which the use of sub-brands and the presentation of a sign in several configurations is
         common. The applicant challenges that finding for two reasons.
         
         
         
         42
            
          First, the applicant considers that, in the clothing sector, the average consumer is particularly attentive to trade marks
         so that it is difficult for that person to be misled.
         
         
         
         43
            
          It should be noted in this regard that the average consumer’s level of attention may vary according to the category of goods
         or services in question (see, by analogy, Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 26). As OHIM rightly pointed out, an applicant cannot simply assert that in a particular sector
         the consumer is particularly attentive to trade marks without supporting that claim with facts or evidence. As regards the
         clothing sector, the Court finds that it comprises goods which vary widely in quality and price. Whilst it is possible that
         the consumer is more attentive to the choice of mark where he or she buys a particularly expensive item of clothing, such
         an approach on the part of the consumer cannot be presumed without evidence with regard to all goods in that sector. It follows
         that that argument must be rejected.
         
         
         
         44
            
          Second, the applicant submits that letter combinations are by nature not very distinctive. Furthermore, according to the applicant
         it is not possible to appropriate the phonetic aspect of a letter combination for one’s own use; the applicant relies in this
         respect on a decision of the Tribunal Supremo of 21 January 1993 concerning a sign composed of the letter ‘D’. Finally, the
         applicant points out that there are several national and Community trade marks comprising the element ‘NL’ and there has not
         been found to be any likelihood of confusion between them.
         
         
         
         45
            
          As regards the fact that several trade marks containing the letter combination ‘NL’ have been registered, the Court finds
         that the applicant has not shown that those cases are transposable to the present case. Furthermore, OHIM points out, without
         being contradicted, that the Community registrations to which the applicant referred have never been the subject of opposition
         proceedings. As for the decision of the Tribunal Supremo, OHIM rightly pointed out that that case concerned a trade mark composed
         of a single letter. Finally, the legality of decisions of the Boards of Appeal must be evaluated solely on the basis of Regulation
         No 40/94, as interpreted by the Community Courts (BUDMEN, paragraph 61, and the case-law cited). It follows that that part of the argument must fail. 
         
         
         
         46
            
          As for the argument that the earlier trade mark cannot monopolise the phonetic aspect of ‘NL’, that amounts in substance to
         denying the aural distinctiveness of that mark and consequently to the conclusion that phonetic similarity cannot contribute
         to a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 40/94.
         
         
         
         47
            
          Article 4 of Regulation No 40/94 states that a Community trade mark may consist of any signs capable of being represented
         graphically, particularly words and letters, provided that they are capable of distinguishing the goods or services of one
         undertaking from those of other undertakings. The legislature thus expressly included signs composed of a letter or letter
         combination in the list of examples in Article 4 of that regulation of signs which may constitute a Community trade mark,
         subject to any absolute or relative grounds for refusal upon which opposition to registration may be based. 
         
         
         
         48
            
          Articles 7 and 8 of Regulation No 40/94 concerning refusal of registration do not lay down specific rules for signs composed
         of a letter combination not forming a word. It follows that the global assessment of the likelihood of confusion between such
         signs pursuant to Article 8(1)(b) of Regulation No 40/94 in principle follows the same rules as that in respect of word signs
         comprising a word, a name or an invented term. Accordingly, the applicant’s argument that signs composed of a letter combination
         are by their nature not phonetically distinctive must be rejected. 
         
         
         
         49
            
          However, it should be noted that in the global assessment of the likelihood of confusion, the visual, aural or conceptual
         aspects of the opposing signs do not always have the same weight. It is appropriate to examine the objective conditions under
         which the marks may be present on the market (BUDMEN, paragraph 57). The extent of the similarity or difference between the signs may depend, in particular, on the inherent qualities
         of the signs or the conditions under which the goods or services covered by the opposing signs are marketed. If the goods
         covered by the mark in question are usually sold in self-service stores where consumer choose the product themselves and must
         therefore rely primarily on the image of the trade mark applied to the product, the visual similarity between the signs will
         as a general rule be more important. If on the other hand the product covered is primarily sold orally, greater weight will
         usually be attributed to any aural similarity between the signs.
         
         
         
         50
            
          The applicant has not mentioned any particular conditions under which the goods are marketed. Generally in clothes shops customers
         can themselves either choose the clothes they wish to buy or be assisted by the sales staff. Whilst oral communication in
         respect of the product and the trade mark is not excluded, the choice of the item of clothing is generally made visually.
         Therefore, the visual perception of the marks in question will generally take place prior to purchase. Accordingly the visual
         aspect plays a greater role in the global assessment of the likelihood of confusion.
         
         
         
         51
            
          Nevertheless it is common in the clothing sector for the same mark to be configured in various ways according to the type
         of product which it designates. It is also common for a single clothing manufacturer to use sub-brands (signs that derive
         from a principal mark and which share with it a common dominant element) in order to distinguish its various lines from one
         another (Fifties, paragraph 49, and BUDMEN, paragraph 57). In the present case the conceptual content of the marks applied for may reinforce the consumer’s perception
         of them as sub-brands of a mark NL. Even if the consumer were faced with only one of the signs in question, the separate perception
         of ‘NL’ in bold type, first, and then of the following word, which may evoke the idea of a certain style of clothing, might
         lead the consumer to identify it as a sub-brand of the mark NL. Moreover, the different written form of the letter combination
         ‘NL’ in the signs applied for as compared with that of the earlier trade mark NL could be perceived as a particular configuration
         of that mark. Accordingly, the conclusion of the Board of Appeal that the consumer may perceive the marks applied for as special
         lines originating from the undertaking which is the proprietor of the earlier trade mark must be upheld. 
         
         
         
         52
            
          Article 8(1)(b) of Regulation No 40/94 requires that there exist a likelihood of confusion but not that the confusion be established.
         In those circumstances, whilst it is true that the Board of Appeal could have examined the particular written form of the
         letter combination ‘NL’ in the earlier trade mark whose appearance differs from that of the letters ‘NL’ in the trade marks
         applied for and which constitutes the most striking inherent element of the earlier trade mark, the conclusion to which the
         Board of Appeal came was the correct one. Given the identity of the goods and the conditions under which they are marketed
         referred to in the preceding paragraph, the degree of similarity between the signs suffices in the present case to establish
         the existence of a likelihood of confusion.
         
         
         
         53
            
          It follows that the single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 40/94, is unfounded. The
         action must therefore be dismissed.
         
         
         Costs
         54
            
          Under Article 87(2) of the Rules of Procedure of the Court of First Instance, 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 of OHIM, in accordance with the form of order sought by it.
         
         
         On those grounds,
         
         
         
            
            THE COURT OF FIRST INSTANCE (Second Chamber)
         
         
          hereby:
         
            
            
             
               1.
                  Dismisses the action;
               
            
            
            
             
               2.
                  Orders the applicant to pay the costs.
               
            
            
                  Pirrung
               
               
                  Meij
               
               
                  Forwood
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 6 October 2004.
         
         
         
         
                  H. Jung
               
               
                  J. Pirrung
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: Spanish.