JUDGMENT OF THE GENERAL COURT (Third Chamber)

3 May 2016 (*)

(EU trade mark — Opposition proceedings — Application for EU word mark Natür-bal — Earlier EU word mark NATURVAL — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

In Case T‑503/15,

Aranynektár Termékgyártó és Kereskedelmi KFT, established in Dunavarsány (Hungary), represented by I. Molnár, lawyer,

applicant,

v

European Union Intellectual Property Office (EUIPO), represented by S. Palmero Cabezas, acting as Agent,

defendant,

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

Naturval Apícola, SL, established in Monserrat (Spain), represented by I. Valdelomar Serrano, D. Gabarre Armengol, G. Hinarejos Mulliez, E. Bayo de Gispert and J. Rodriguez Fuensalida, lawyers,

ACTION brought against the decision of the Second Board of Appeal of EUIPO of 17 June 2015 (Case R 1158/2014-2) concerning opposition proceedings between Naturval Apícola and Aranynektár Termékgyártó és Kereskedelmi,

THE GENERAL COURT (Third Chamber),

composed of S. Papasavvas, President, E. Bieliūnas (Rapporteur) and I.S. Forrester, Judges,

Registrar: E. Coulon,

having regard to the application lodged at the Court Registry on 1 September 2015,

having regard to the response of EUIPO lodged at the Court Registry on 3 December 2015,

having regard to the response of the intervener lodged at the Court Registry on 20 November 2015,

having regard to the fact that no request for a hearing was submitted by the main parties within three weeks after service of notification of the close of the written part of the procedure and having decided, pursuant to Article 106(3) of the Rules of Procedure of the General Court, to rule on the action without an oral part of the procedure,

gives the following

Judgment

 Background to the dispute

1        On 26 November 2012 the applicant, Aranynektár Termékgyártó és Kereskedelmi KFT, filed an application for registration of an EU trade mark with the European Union Intellectual Property Office (EUIPO) pursuant to Council Regulation (EC) No 207/2009 of 26 February 2009 on the European Union trade mark (OJ 2009 L 78, p.1).

2        Registration as a mark was sought for the word sign Natür-bal.

3        The goods in respect of which registration was sought are in Class 30 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended, and correspond to the following description: ‘sugar, honey, treacle; sweet spreads (honey); honey; honeys (for food); natural honey’.

4        The EU trade mark application was published in Community Trade Marks Bulletin No 4/2013 of 7 January 2013.

5        On 4 April 2013 the intervener, Naturval Apícola, SL, filed a notice of opposition under Article 41 of Regulation No 207/2009 to the registration of the mark applied for in respect of the goods referred to in paragraph 3 above.

6        The opposition was based on the earlier EU word mark NATURVAL, registered on 13 July 2010 under No 7467616, covering goods in Classes 29 and 30 and corresponding, for each of those classes, to the following description:

–        Class 29: ‘Meat, fish, poultry and game; meat extracts; preserved frozen, dried and cooked fruits and vegetables; jellies, jams, compotes; eggs, milk and milk products; edible oils and fats’;

–        Class 30: ‘Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking-powder; salt, mustard; vinegar, sauces (condiments); spices; ice’.

7        The ground relied on in support of the opposition was that set out in Article 8(1)(b) of Regulation No 207/2009.

8        On 5 March 2015 the Opposition Division rejected the opposition.

9        On 29 April 2014, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 58 to 64 of Regulation No 207/2009, against the Opposition Division’s decision.

10      By a decision of 17 June 2015 (‘the contested decision’) the Second Board of Appeal of EUIPO upheld the appeal and rejected the EU trade mark application in its entirety. In particular, it held that the signs at issue were conceptually similar overall, visually similar and phonetically similar, highly similar or identical depending on the part of the relevant public. Furthermore, the Board of Appeal of EUIPO held that the slightly lower than average distinctiveness of the earlier mark was offset by the fact that the goods in question were identical; thus there was a likelihood of confusion.

 Forms of order sought

11      The applicant claims that the Court should:

–        alter the contested decision in so far as it annulled the decision of the Opposition Division and grant the protection of the mark applied for in respect of all the goods referred to in the application for registration;

–        order the intervener to pay the costs.

12      EUIPO and the intervener contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

13      As a preliminary point, the Court considers that, although the first of the applicant’s heads of claim formally seeks the alteration of the decision, it is clear from the content of the application that, by the present action, the applicant seeks, essentially, annulment of the contested decision on the ground that the Board of Appeal wrongly held that there was a likelihood of confusion for the goods covered by the application for registration.

14      In support of its action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009. It submits, in essence, that the Board of Appeal was wrong to conclude that there was a likelihood of confusion. In particular, the applicant argues that the Board of Appeal wrongly found a similarity between the signs at issue by marginalising the visual differences between the earlier mark and the mark applied for, and by not sufficiently taking into account the specificities of the language spoken by the targeted population of potential buyers.

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

16      In accordance with Article 8(1)(b) of Regulation No 207/2009, 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, an 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.

17      According to settled case-law, the risk that the public may believe that the goods or services in question come from the same undertaking or from economically-linked undertakings constitutes a likelihood of confusion. According to the same line of case-law, the likelihood of confusion must be assessed globally, according to the relevant public’s perception of the signs and goods or services in question and taking account of all factors relevant to 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 in Laboratorios RTB v OHIM — Giorgio Beverly Hills (GIORGIO BEVERLY HILLS), T‑162/01, EU:T:2003:199, paragraphs 30 to 33 and the case-law cited).

 The relevant public

18      According to the case-law, in the global assessment of the likelihood of confusion, account should be taken of the average consumer of the category of goods concerned, who is reasonably well informed and reasonably observant and circumspect. It should also be borne in mind that the average consumer’s level of attention is likely to vary according to the category of goods or services in question (see judgment of 13 February 2007 in Mundipharma v OHIM — Altana Pharma (RESPICUR), T‑256/04, EU:T:2007:46, paragraph 42 and the case-law cited).

19      In the present case, the Board of Appeal stated, at paragraphs 17 to 20 of the contested decision, that the goods covered by the signs at issue were directed at the general public in all EU Member States, which, in view of the nature of those goods, had an average level of attention.

20      The applicant, while recognising that the relevant territory is that of the European Union as a whole, contests the Board of Appeal’s finding, submitting that the use of the mark applied for is limited to the Turkish ethnic market in the European Union and that specific consideration should therefore be given to the behaviour of the customers belonging to that specific market.

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

22      In that regard, it should be noted that the relevant public for the assessment of the likelihood of confusion is composed of users likely to purchase both the goods covered by the earlier mark and those covered by the mark applied for (see, to that effect, judgment of 1 July 2008 in Apple Computer v OHIM — TKS-Teknosoft (QUARTZ), T‑328/05, not published, EU:T:2008:238, paragraph 23).

23      In the present case, even if a section of the ethnic public allegedly targeted by the mark applied for purchases the goods marketed under that mark, it nevertheless remains the case, on the one hand, that that category of the relevant public is still likely to purchase the goods covered by the earlier mark and, on the other hand, that the broader general public of the EU Member States is also likely to purchase the goods covered by the mark applied for, which are to be regarded as everyday foodstuffs.

24      It follows that, as was held by the Board of Appeal, the relevant public is composed of the general public of the European Union.

 The comparison of the goods

25      It must be noted that the parties agree on the fact that the goods in question are identical and that that assessment is correct.

 The comparison of the signs

26      The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007 in OHIM v Shaker, C‑334/05 P, EU:C:2007:333, paragraph 35 and the case-law cited).

27      According to settled case-law, two marks are similar when, from the point of view of the relevant public, they are at least partially identical as regards one or more relevant aspects (judgments of 23 October 2002 in Matratzen Concord v OHIM — Hukla Germany (MATRATZEN), T‑6/01, EU:T:2002:261, paragraph 30, and 26 January 2006 in Volkswagen v OHIM — Nacional Motor (Variant), T‑317/03, not published, EU:T:2006:27, paragraph 46).

28      The Board of Appeal found that the signs at issue were visually similar, phonetically similar, highly similar or identical depending on the part of the relevant public concerned and conceptually similar overall.

29      The applicant argues that the Board of Appeal overestimated the similarity of the signs at issue. In particular, it submits that the visual perception should play a decisive role and that there are a number of differences in the appearance of the signs.

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

 Visual similarity

31      The Board of Appeal held, at paragraph 31 of the contested decision, that the signs at issue coincided in seven out of eight letters, that they shared the letter sequences ‘n’, ‘a’, ‘t’, ‘u’, ‘r’ and ‘a’, ‘l’, and that the addition of an umlaut on the fourth letter of the sign applied for did not have a significant visual impact. However, it found that those signs differed in their sixth letter and by the hyphen in the contested sign. The Board of Appeal concluded that the signs at issue were visually similar.

32      The applicant submits that the visual differences between the marks at issue are significant as the mark applied for contains an umlaut on the fourth letter, a hyphen separating two word elements whilst the earlier mark contains only a single word element, and a different sixth letter from the earlier mark. The Board of Appeal did not take those differences into consideration.

33      In that regard, the Court notes that the signs at issue do indeed differ in that (i) the mark applied for contains two elements, namely ‘natür’ and ‘bal’, separated by a hyphen, while the earlier mark contains only one element, ‘naturval’, and (ii) the earlier mark does not contain a letter accented with an umlaut. However, first, those two signs each contain eight letters and are therefore of a similar length. Second, seven of the eight letters are common to both signs, as the Board of Appeal in essence stated. Even if, in accordance with certain alphabets, the ‘ü’ in the mark applied for were to be considered to be a letter in its own right, the fact remains that the signs at issue coincide in six of their eight letters. Moreover, the umlaut in the mark applied for does not alter the fact that the letters ‘u’ and ‘ü’ are visually almost identical (see, to that effect and by analogy, judgment of 13 July 2011 in Inter IKEA Systems v OHIM — Meteor Controls (GLÄNSA), T‑88/10, not published, EU:T:2011:368, paragraph 30). Third, and notwithstanding the presence of the umlaut, it should be noted that the signs begin and end with the same sequence of letters, namely ‘n’, ‘a’, ‘t’, ‘u’, ‘r’ and ‘a’, ‘l’ respectively. Fourth, as regards the presence of a hyphen in the sign comprising the mark applied for, it does not produce a significant difference in comparison with the sign comprising the earlier mark, taking into account, in particular, the not insignificant length of those signs.

34      In those circumstances, it must be held that, based on an overall impression, the signs at issue are visually similar to an average degree.

 Phonetic similarity

35      The Board of Appeal held, at paragraph 32 of the contested decision, that the signs at issue were phonetically identical for the Spanish part of the relevant public, which does not recognise a difference in pronunciation between the letters ‘b’ and ‘v’. The Board of Appeal also held that the signs at issue were phonetically highly similar for the part of the relevant public for whom the umlaut does not alter the pronunciation of the letter ‘u’, and phonetically similar for the part of the relevant public who recognise a different pronunciation of the letter ‘u’ depending on whether or not it contains an umlaut.

36      The applicant disputes the Board of Appeal’s assessment, arguing that it attached too much importance to the specificities of the Spanish language as regards the pronunciation of the letters ‘b’ and ‘v’, and too little to the specificities of other languages, in particular the Turkish language, as regards the pronunciation of the letter ‘u’, depending on whether it is shown with or without an umlaut.

37      In that regard, it must be noted, first, that the signs at issue both contain three syllables and are pronounced with the same rhythm and intonation owing to their shared letter sequences ‘n’, ‘a’, ‘t’, ‘u’, ‘r’ and ‘a’, ‘l’.

38      Second, it must be held that, in the Spanish language, the existence of a phonetic identity between the signs at issue is not in dispute between the parties and cannot, in any event, be denied.

39      Third, as regards other languages, such as French or Italian, the umlaut placed above the letter ‘u’ does not alter its pronunciation. Additionally, in those languages, the presence of the letter ‘b’ or ‘v’ in the signs at issue is not such as to introduce significant differences phonetically, as only the sound perceived at the beginning of the third syllable is different. The first two syllables of the signs at issue are pronounced in the same way and the sound produced by the group of letters ‘al’ is also identical. The signs at issue remain phonetically highly similar and the earlier mark contains mostly the same letters as the mark applied for, placed in the same order and differing by no more than a single consonant.

40      Fourth, as regards the languages in which an umlaut placed above the letter ‘u’ modifies the pronunciation of that letter, it must be held that, following an overall phonetic assessment, the elements of similarity between the signs at issue, in particular the sounds produced by the elements ‘nat’ and ‘al’, but also by the letter ‘r’, counteract the points of dissimilarity, with the result that the signs at issue remain similar in that respect.

41      It follows from the foregoing that, based on an overall impression, there is a phonetic similarity between the signs at issue, in that they are phonetically identical for the Spanish part of the relevant public, highly similar for a large part of the relevant public and similar for the part of the relevant public which recognises a difference in pronunciation when an umlaut is placed above the letter ‘u’.

 Conceptual similarity

42      The Board of Appeal found, at paragraphs 33 to 40 of the contested decision, that the signs at issue were conceptually identical in that they both reflect the idea of a reference to nature or to natural goods and that that conceptual coincidence prevailed over possible conceptual differences, with the result that the signs at issue were conceptually similar overall.

43      The applicant argues that the difference in meaning, connected with the alleged significance of the mark applied for in Turkish, is important and that accordingly the signs at issue are not conceptually similar. According to the applicant, the Turkish-speaking population understands that the mark applied for — Natür-bal — refers to the concept of natural honey, whereas the earlier mark — NATURVAL — cannot be conceptually perceived by that population.

44      In that regard, it must be observed that, conceptually, a large part of the relevant public, including the Spanish public, will perceive both the word element ‘natur’ of the earlier mark and the word element ‘natür’ of the mark applied for as referring to the idea of nature or something natural.

45      Moreover, for a large part of the relevant public, the word elements ‘val’ and ‘bal’, contained in the earlier mark and the mark applied for respectively, will not have any meaning as such. For a large part of the relevant public too, the word elements ‘val’ and ‘bal’, which may in some circumstances be understood as such, will not have any meaning when they are combined with the preceding word element ‘natur’.

46      Thus, for a large part of the relevant public, the signs at issue are conceptually identical in that they both refer to the idea of nature or something natural via the word element ‘natur’, whereas the word elements ‘val’ and ‘bal’ are fairly neutral.

47      In light of all those considerations, the finding of the Board of Appeal that the signs at issue are, for a large part of the relevant public, conceptually identical, must be endorsed.

 The likelihood of confusion

48      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 marks and that of the goods or services covered. Accordingly, a low degree of similarity between the goods or services covered may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998 in Canon, C‑39/97, EU:C:1998:442, paragraph 17, and 14 December 2006 in 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).

49      The Board of Appeal found, at paragraph 45 of the contested decision, that a likelihood of confusion could not be excluded, especially for the parts of the relevant public for whom the signs are phonetically highly similar or identical.

50      The applicant submits that the signs at issue are primarily used on the packaging of the goods marketed, so that it is the visual perception which must play a decisive role in the assessment of the likelihood of confusion.

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

52      In the present case it must be held that, taking account (i) of the identical nature of the goods concerned, (ii) of the average degree of visual similarity between the signs at issue, (iii) of their phonetic similarity inasmuch as they are identical for the Spanish part of the relevant public, highly similar for a large part of the relevant public and similar for the part of the relevant public who recognise a difference of pronunciation when an umlaut is placed above the letter ‘u’, (iv) of the fact that they are conceptually identical for a large part of the relevant public, and (v) of the average level of attention of that public, there is a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009.

53      That conclusion cannot be called into question by the applicant’s argument that the visual comparison of the signs is of greater importance than the phonetic comparison. Indeed, such an argument is ineffective in that it has no bearing on the analysis of the likelihood of confusion where a visual similarity between the signs at issue has in fact been found to exist (judgment of 7 December 2011 in El Corte Inglés v OHIM — Azzedine Alaïa (ALIA), T‑152/10, not published, EU:T:2011:715, paragraph 60).

54      The Court also rejects the applicant’s arguments relating to the use it intends to make of the mark applied for; that is the case as regards both the claim that the applicant will use the mark primarily on the packaging of the goods that it markets and the contention that the goods that it markets are intended only for the ethnic Turkish market within the European Union. Since particular marketing strategies for goods covered by the marks can vary over time and depend on the wishes of the proprietors of those marks, the prospective assessment of the likelihood of confusion between two marks cannot be dependent on the marketing intentions, whether given effect or not, and by their very nature subjective, of the trade mark proprietors (judgments of 15 March 2007 in T.I.M.E. ART v OHIM, C‑171/06 P, not published, EU:C:2007:171, paragraph 59, and 9 September 2008 in Honda Motor Europe v OHIM — Seat (MAGIC SEAT), T‑363/06, EU:T:2008:319, paragraph 63).

55      It follows from all of the foregoing that the single plea in law must be rejected and that the action must therefore be dismissed in its entirety.

 Costs

56      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.

57      Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the forms of order sought by EUIPO and the intervener.

On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Aranynektár Termékgyártó és Kereskedelmi KFT to pay the costs.

Papasavvas

Bieliūnas

Forrester

Delivered in open court in Luxembourg on 3 May 2016.

[Signatures]