Azalee Cosmetics v EUIPO - L'Oreal (UK) (EU trade mar - Judgment) [2024] EUECJ T-765/22 (21 February 2024)

Judgment By its action based on Article 263 TFEU, the applicant, Azalee Cosmetics, seeks the annulment in part of the decision of the First Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 7 October 2022 (Case R 229/2022‑1) (‘the contested decision’). Background to the dispute On 12 June 2020, the applicant filed an application for registration of an EU trade mark with EUIPO in respect of the following figurative sign: The mark applied for covered goods and services in Classes 3, 21, 35 and 44 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. On 2 October 2020, the intervener, L’Oréal (UK) Ltd, filed a notice of opposition to registration of the mark applied for in respect of part of the goods and services covered by that mark. The opposition was based on the earlier EU word mark LIBRE, which covers goods in Class 3 corresponding to the following description: ‘Perfumes; eau de cologne; toilet waters; eau de parfum; personal deodorants; cleaning and fragrancing preparations; scented body lotions and creams; essential oils; perfumed soaps’. 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). At the applicant’s request, the list of goods and services covered by the mark applied for was subject to a restriction, as a result of which the goods and services covered corresponded, for Classes 3, 21, 35 and 44, to, inter alia, the following description: – Class 3: ‘Body and facial creams [cosmetics]; serums for cosmetic purposes; body and facial oils; beauty milk; micellar water; cosmetics; products for beauty treatments; soaps and gels; shaving soaps; balms and lotions for cosmetic and hair purposes; perfumery; toilet water; scented water; deodorants for personal use [perfumery]; ethereal oils; make-up; make-up removing preparations; beauty masks; massage candles for cosmetic purposes; cosmetic preparations for the maintenance of the skin; cosmetic preparations for slimming and firming the skin; cosmetic nail care preparations; cosmetic haircare preparations; cosmetic preparations for baths; sun-tanning preparations [cosmetics]; shampoos; hair conditioners; hair care agents; hair colorants and hair dyes; shaving preparations; depilatory preparations; depilatory wax; varnishes’; – Class 21: ‘Cosmetic utensils; toilet cases; powder puffs; toilet sponges; make-up sponges; pots for cosmetic purposes’; – Class 35: ‘Retail services in relation to body and facial creams [cosmetics]; retail services in relation to serums for cosmetic purposes; retail services in relation to body and facial oils; retail services in relation to beauty milks; retailing of micellar water; retail services connected with cosmetics; retail services in relation to beauty products; retail services in relation to soaps and gels; retail services in relation to shaving soap; retailing of balms and lotions for cosmetic and hair purposes; sale services of perfumery, toilet water and scented water; retail services in relation to deodorants for personal use [perfumery]; retailing of essential oils; retailing of make-up preparations and make-up removing preparations; retail services in relation to beauty masks; retail services in relation to massage candles for cosmetic purposes; retail services relating to cosmetics and skincare preparations; retailing of cosmetic preparations for slimming and firming the skin; retailing of cosmetic preparations for nail care; retailing of cosmetic preparations for hair care; retail services in relation to cosmetic preparations for baths; retail services in relation to sun blocking preparations [cosmetics]; retail services connected with the sale of shampoo-conditioners; retail services related to hair care products; retailing of hair dyes and colorants; retail services in relation to shaving preparations; retailing of depilatory preparations and depilatory wax; retail services in relation to varnishes; retailing in relation to cosmetic utensils; retail services in relation to toilet cases; retail services in relation to powder puffs; retailing of toilet sponges and make-up sponges; retailing of pots for cosmetic purposes’; – Class 44: ‘Hygienic and beauty care for human beings; beauty institutes and salons; hair salon services; manicuring; visagists’ services; consultancy in the field of beauty; advice in the field of hairdressing; advice in the field of body aesthetics; consultancy in relation to make-up’. On 8 December 2021, the Opposition Division, inter alia, upheld the opposition in respect of all the goods and services in Classes 3, 21, 35 and 44, referred to in paragraph 7 above, and in respect of ‘dentifrice’ in Class 3, ‘hairbrushes; eyebrow brushes; toothbrushes; combs; foam toe separators for use in pedicures’ in Class 21 and ‘retailing of hairbrushes and combs, retail services in relation to eyebrow brushes; retail services connected with the sale of toothbrushes; retail services in relation to foam toe separators for use in pedicures’ in Class 35, on the basis of Article 8(1)(b) of Regulation 2017/1001. On 7 February 2022, the applicant filed a notice of appeal with EUIPO against the decision of the Opposition Division to the extent that the opposition had been upheld. By the contested decision, the Board of Appeal dismissed the appeal as regards the goods and services referred to in paragraph 7 above, on the ground that there was a likelihood of confusion as to the origin of the goods and services covered by the marks at issue on the part of the relevant public. Forms of order sought The applicant claims, in essence, that the Court should: – annul the contested decision in so far as the Board of Appeal dismissed the appeal as regards the goods and services referred to in paragraph 7 above; – order EUIPO and the intervener to pay the costs, and to reimburse the applicant for all the costs incurred for the purposes of the opposition and appeal proceedings. EUIPO contends that the Court should: – dismiss the action; – order the applicant to pay the costs in the event that a hearing is scheduled. The intervener contends that the Court should: – dismiss the action; – order the applicant to pay the costs. Law In support of the action, the applicant raises a single plea in law, alleging infringement of Article 8(1)(b) of Regulation 2017/1001. 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 mark. 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 and goods or services in question and taking into account all factors relevant to the circumstances of the case, in particular the interdependence between the similarity of the signs and that of the goods or services covered (see judgment of 9 July 2003, Laboratorios RTB v OHIM - Giorgio Beverly Hills (GIORGIO BEVERLY HILLS) , T‑162/01, EU:T:2003:199 , paragraphs 30 to 33 and the case-law cited). For the purposes of applying Article 8(1)(b) of Regulation 2017/1001, a likelihood of confusion presupposes both that the marks at issue are identical or similar and that the goods or services which they cover are identical or similar. Those conditions are cumulative (see judgment of 22 January 2009, Commercy v OHIM - easyGroup IP Licensing (easyHotel) , T‑316/07, EU:T:2009:14 , paragraph 42 and the case-law cited). Where the protection of the earlier trade mark extends to the entirety of the European Union, it is necessary to take into account the perception of the marks at issue by the consumer of the goods and services concerned in that territory. However, it must be borne in mind that, for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union (see, to that effect, judgment 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 76 and the case-law cited). The relevant public and the relevant territory First of all, in paragraphs 34 to 43 of the contested decision, the Board of Appeal observed that all the goods and services at issue were aimed at the public at large. It took the view that the level of attention of that public was at least average for the goods in Class 3 and the services in Class 35, average for the goods in Class 21 and average to high, depending on the degree of sophistication, for the services in Class 44. Next, the Board of Appeal recalled, in paragraph 40 of the contested decision, that, in the global assessment of the likelihood of confusion, it is the group with the lowest level of attention which must be taken into consideration. According to the Board of Appeal, this is therefore, in the present case, the group whose level of attention is average. Lastly, in paragraph 45 of the contested decision, it took the view that the assessment of the likelihood of confusion depended on the perception of the French-speaking public in the European Union. In that regard, the applicant maintains, in essence, that the level of attention of the relevant public is high, since, first, the members of that public pay attention to the composition of the products which they apply to their skin and, second, the intervener’s perfumery products are luxury goods. In addition, the applicant complains that the Board of Appeal assessed the existence of a likelihood of confusion solely in relation to the French-speaking public in the European Union, which is not justified, as the opposition is based on an EU trade mark. EUIPO and the intervener dispute those arguments. In the first place, it must be stated that the goods and services at issue essentially relate to cosmetics and beauty care, which are for everyday use and are thus aimed at the general public, with an average level of attention (see judgment of 29 March 2023, Machková v EUIPO - Aceites Almenara (ALMARA SOAP) , T‑436/22, not published, EU:T:2023:167 , paragraph 33 and the case-law cited). Furthermore, contrary to the applicant’s contention, it is not apparent from the description of the goods at issue that they are luxury goods or goods that are so sophisticated or expensive that the relevant public would be likely to be particularly attentive with regard to them. In those circumstances, the Board of Appeal acted correctly in finding that the goods and services at issue were aimed at the general public, which displays, in essence, an average level of attention in respect of such goods and services. In any event, even if a part of the public were to display a higher level of attention, it is the group with the lowest level of attention that must be taken into account (see judgment of 30 January 2019, Bekat v EUIPO - Borbet (ARBET) , T‑79/18, not published, EU:T:2019:39 , paragraph 23 and the case-law cited). In the second place, it should be borne in mind that, in order for an EU trade mark to be refused registration, it is sufficient that a relative ground for refusal for the purposes of Article 8(1)(b) of Regulation 2017/1001 exists in part of the European Union or for a not insignificant part of the relevant public (see paragraph 18 above). It follows that the Board of Appeal was justified in limiting its assessment of the likelihood of confusion to the French-speaking public of the European Union, as is explained in paragraph 45 of the contested decision. In those circumstances, the applicant is not justified in claiming that the Board of Appeal made an error of assessment when determining the relevant public and its level of attention. The comparison of the goods and services at issue In assessing the similarity of the goods and services at issue, all the relevant factors relating to those goods and 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. Other factors may also be taken into account, such as the distribution channels of the goods concerned (see judgment of 11 July 2007, El Corte Inglés v OHIM - Bolaños Sabri (PiraÑAM diseño original Juan Bolaños) , T‑443/05, EU:T:2007:219 , paragraph 37 and the case-law cited). The comparison of the goods in Class 3 covered by the marks at issue First, the Board of Appeal took the view, in essence, in paragraphs 51 to 59 of the contested decision, that ‘body creams [cosmetics]; cosmetics; products for beauty treatments; cosmetic preparations for the maintenance of the skin; cosmetic preparations for slimming and firming the skin; sun-tanning preparations [cosmetics]; perfumery; toilet water; scented water; deodorants for personal use [perfumery]; ethereal oils; body and facial oils; soaps and gels; shaving preparations; cosmetic preparations for baths; shaving soaps’ covered by the mark applied for were identical to some of the goods covered by the earlier mark. Second, in paragraph 60 of the contested decision, the Board of Appeal took the view that ‘facial creams [cosmetics]; serums for cosmetic purposes; beauty milk; micellar water; balms and lotions for cosmetic and hair purposes; make-up; make-up removing preparations; beauty masks; massage candles for cosmetic purposes (i.e. candles that are made from solidified body oil that has relaxing and skin-nourishing ingredients. When the base of the candles is melted, you can use them to massage); cosmetic nail care preparations; cosmetic haircare preparations; shampoos; hair conditioners; hair care agents; hair colorants and hair dyes; depilatory preparations; depilatory wax; varnishes’ covered by the mark applied for displayed a certain similarity with ‘scented body lotions and creams’ covered by the earlier mark. The applicant complains that the Board of Appeal failed to take into account the fact that the goods at issue in Class 3 covered by the mark applied for and those covered by the earlier mark differed in their nature, purpose and method of use. In particular, it submits that the goods at issue in Class 3 covered by the mark applied for are intended to treat specific issues and to be left on the skin of the consumer for some time, unlike the goods covered by the earlier mark. It concludes from this that the goods at issue are neither in competition nor complementary. EUIPO and the intervener dispute the applicant’s arguments. In that regard, it should be borne in mind that where the goods covered by the trade mark application are included in a more general category of goods covered by the earlier mark, those goods may be considered to be identical (see judgment of 24 November 2005, Sadas v OHIM - LTJ Diffusion (ARTHUR ET FELICIE) , T‑346/04, EU:T:2005:420, paragraph 34 and the case-law cited). Conversely, goods can also be considered to be identical when the goods designated by the earlier mark are included in a more general category designated by the trade mark application (judgments of 23 October 2002, Institut für Lernsysteme v OHIM - Educational Services (ELS) , T‑388/00, EU:T:2002:260, paragraph 53, and of 25 November 2020, BRF Singapore Foods v EUIPO - Tipiak (Sadia) , T‑309/19, not published, EU:T:2020:565 , paragraph 139). In the present case, in the first place, it should be noted that ‘scented body lotions and creams’ covered by the earlier mark fall within the broader categories of ‘body creams [cosmetics]; cosmetics; products for beauty treatments; cosmetic preparations for the maintenance of the skin’ covered by the mark applied for. The same applies to ‘perfumed soaps’ covered by the earlier mark and ‘soaps and gels; shaving preparations; cosmetic preparations for baths; shaving soaps’ covered by the mark applied for. Therefore, it must be found that those goods are identical. In the second place, the description of ‘perfumery; toilet water; scented water; deodorants for personal use [perfumery]’ covered by the mark applied for is identical to ‘perfumes; eau de cologne; toilet waters; eau de parfum; personal deodorants’ covered by the earlier mark. The same applies to ‘ethereal oils’ covered by the mark applied for and ‘essential oils’ covered by the earlier mark. The latter category also includes ‘body and facial oils’ covered by the mark applied for. As regards ‘cosmetic preparations for slimming and firming the skin; sun-tanning preparations [cosmetics]’ covered by the mark applied for, those goods are included in the broader category of ‘scented body lotions and creams’ covered by the earlier mark. Consequently, those goods are identical. In the third place, since ‘facial creams [cosmetics]; serums for cosmetic purposes; beauty milk; micellar water; balms and lotions for cosmetic and hair purposes; make-up; make-up removing preparations; beauty masks; massage candles for cosmetic purposes (i.e. candles that are made from solidified body oil that has relaxing and skin-nourishing ingredients. When the base of the candles is melted, you can use them to massage); cosmetic nail care preparations; cosmetic haircare preparations; shampoos; hair conditioners; hair care agents; hair colorants and hair dyes; depilatory preparations; depilatory wax; varnishes’ covered by the mark applied for and ‘scented body lotions and creams’ covered by the earlier mark are cosmetic and beauty care products manufactured by the same undertakings and sold through the same distribution channels, it must be found, as did the Board of Appeal, that there is an average degree of similarity between them. Those findings cannot be called into question by the applicant’s arguments that the goods covered by the earlier mark are intended only to create an olfactory effect. The purpose of those goods is also to moisturise and lubricate the skin. Consequently, the applicant’s arguments as regards the goods in Class 3 must be rejected. The comparison between the goods in Class 21 covered by the mark applied for and the goods covered by the earlier mark The Board of Appeal found, in paragraphs 65 to 69 of the contested decision, that ‘cosmetic utensils; toilet cases; powder puffs; toilet sponges; make-up sponges; pots for cosmetic purposes’ covered by the mark applied for in Class 21 were similar to a low degree to ‘scented body lotions and creams’ covered by the earlier mark. The applicant submits, first, that the goods at issue are of a different nature and form, since the goods covered by the earlier mark are liquid, whereas the goods in Class 21 referred to in paragraph 39 above are solid. Next, it maintains that the former can be used on their own, unlike the goods covered by the mark applied for, which require the use of other products. Lastly, it submits that the goods at issue are neither in competition nor complementary. EUIPO and the intervener dispute the applicant’s arguments. According to settled case-law, complementary goods are those which are closely connected in the sense that one is indispensable or important for the use of the other, with the result that consumers may think that the same undertaking is responsible for both (see judgment of 22 January 2009, easyHotel , T‑316/07, EU:T:2009:14 , paragraph 57 and the case-law cited). In that regard, it must be noted that the goods in Class 21 referred to in paragraph 39 above are utensils that have a complementary function to ‘scented body lotions and creams’ covered by the earlier mark in that they cannot be used without the latter. In addition, they can be purchased in the same places, target the same relevant public and can be produced by the same manufacturers (see, to that effect and by analogy, judgment of 16 December 2015, CareAbout v OHIM - Florido Rodríguez (Kerashot) , T‑356/14, not published, EU:T:2015:978 , paragraph 37). However, as EUIPO acknowledges, the goods at issue have a different nature, purpose and method of use. Accordingly, it must be held that, in view of the complementary connection referred to above, the Board of Appeal did not make any error of assessment in finding that the goods at issue were similar to a low degree. The comparison between the services in Class 35 covered by the mark applied for and the goods covered by the earlier mark The Board of Appeal observed, in paragraphs 74 to 77 of the contested decision, that the services in Class 35 referred to in paragraph 7 above were similar at least to a low degree to the goods covered by the earlier mark. The applicant submits that the services in Class 35 referred to in paragraph 7 above and the goods in Class 3 covered by the earlier mark cannot be similar since, by their nature, services are intangible whereas goods are tangible. In support of that argument, the applicant also relies on the EUIPO Guidelines. EUIPO and the intervener dispute that argument. In that regard, it should be borne in mind that the principles applicable to the comparison of goods also apply to the comparison between goods and services. It is true that, by their very nature, goods are generally different from services, but it nevertheless remains the case that they can be complementary or that services may have the same purpose or use as the goods, and thus compete with the latter. It follows that, in certain circumstances, goods and services may be found to be similar (judgment of 27 October 2005, Éditions Albert René v OHIM - Orange (MOBILIX) , T‑336/03, EU:T:2005:379, paragraph 66). In particular, as the Board of Appeal correctly noted, there is a similarity between goods and the retail services which relate to those goods, based on the existence of a complementary connection between those goods and services (see, to that effect, judgment of 7 October 2015, CBM v OHIM - Aeronautica Militare (TRECOLORE) , T‑365/14, not published, EU:T:2015:763 , paragraph 34 and the case-law cited). Furthermore, the retail services for the goods covered by the trade mark application that are identical and similar to an average degree to the goods covered by the earlier mark must be regarded as similar to an average degree to the respective goods covered by the earlier mark. Retail services for the goods covered by the trade mark application that are weakly similar to the goods covered by the earlier mark must be regarded as weakly similar to the latter goods (judgment of 28 November 2019, Runnebaum Invest v EUIPO - Berg Toys Beheer (Bergsteiger) , T‑736/18, not published, EU:T:2019:826 , paragraph 91). In the present case, first, it must be noted that, given that ‘body creams [cosmetics]; cosmetics; products for beauty treatments; cosmetic preparations for the maintenance of the skin; soaps and gels; shaving preparations; cosmetic preparations for baths; shaving soaps; perfumery; toilet water; scented water; deodorants for personal use [perfumery]; ethereal oils; body and facial oils; cosmetic preparations for slimming and firming the skin; sun-tanning preparations [cosmetics]’ are identical to some of the goods covered by the earlier mark, as has been found in paragraphs 34 and 35 above, the ‘retail services’ for the former must be regarded as having an average degree of similarity, and not at least a low degree of similarity, to the latter, in accordance with the case-law referred to in paragraph 51 above. Second, in accordance with the same case-law, since ‘facial creams [cosmetics]; serums for cosmetic purposes; beauty milk; micellar water; balms and lotions for cosmetic and hair purposes; make-up; make-up removing preparations; beauty masks; massage candles for cosmetic purposes (i.e. candles that are made from solidified body oil that has relaxing and skin-nourishing ingredients. When the base of the candles is melted, you can use them to massage); cosmetic nail care preparations; cosmetic haircare preparations; shampoos; hair conditioners; hair care agents; hair colorants and hair dyes; depilatory preparations; depilatory wax; varnishes’ are similar to an average degree to some of the goods covered by the earlier mark, as has been found in paragraph 36 above, the ‘retail services’ for the former must be regarded as having an average degree of similarity, and not at least a low degree of similarity, to the latter. Third, given that ‘cosmetic utensils; toilet cases; powder puffs; toilet sponges; make-up sponges; pots for cosmetic purposes’ in Class 21 are similar to a low degree to some of the goods covered by the earlier mark, as has been noted in paragraph 45 above, the ‘retail services’ for the former must be regarded as having a low degree of similarity to the latter, in accordance with the case-law referred to in paragraph 51 above. Fourth, it is apparent from the case-law that the EUIPO Guidelines are not binding legal acts for the purpose of interpreting provisions of EU law (see, to that effect, judgment of 19 December 2012, Leno Merken , C‑149/11, EU:C:2012:816 , paragraph 48). Consequently, it should be concluded that, as regards the comparison between the services in Class 35 and some of the goods covered by the earlier mark, those goods and services are similar to a degree varying from low to average. The comparison between the services in Class 44 covered by the mark applied for and the goods covered by the earlier mark The Board of Appeal took the view, first, in paragraphs 80 to 82 of the contested decision, that the services ‘hygienic and beauty care for human beings; beauty institutes and salons; hair salon services; manicuring; visagists’ services’ were complementary to ‘scented body lotions and creams; perfumed soaps’ covered by the earlier mark and that beauty centres and salons often offered beauty products to their customers. Therefore, it concluded that those goods and services at issue were similar to a low degree. Second, in paragraphs 83 to 85 of the contested decision, the Board of Appeal took the view that ‘consultancy in the field of beauty; advice in the field of hairdressing; advice in the field of body aesthetics; consultancy in relation to make-up’ included indications on the types of cosmetic products to be used and had the same distribution channels as the goods covered by the earlier mark. It concluded that, given that those goods and services were complementary, there was a low degree of similarity between them. The applicant submits that the services at issue do not have the same purpose as the goods covered by the earlier mark. Furthermore, it disputes that they are complementary, given that the services at issue are provided in beauty salons or offices, namely in places where the goods covered by the earlier mark are not sold. EUIPO and the intervener dispute the applicant’s arguments. In the present case, it is sufficient to note, as the Board of Appeal did, that there is a complementary connection between the goods in Class 3 covered by the earlier mark and the services in Class 44 covered by the mark applied for. Those goods and services share the same overall purpose, namely to provide hygiene and beauty care. The services at issue covered by the mark applied for constitute a broad category intended to wash and purify the human body and to make it more attractive, or to provide advice in that regard. Similarly, ‘scented body lotions and creams’, ‘perfumes’ and ‘perfumed soaps’ are intended to be applied to the human body for the purpose of cleaning it, making it smell nice, protecting it, making it more attractive or keeping it in good condition. Furthermore, the wording used to identify the services ‘hygienic and beauty care for human beings’ covered by the mark applied for is very broad and includes, inter alia, the types of care for which the goods in Class 3 covered by the earlier mark can be used (see, to that effect, judgment of 21 December 2021, Dr. Spiller v EUIPO - Rausch (Alpenrausch Dr. Spiller) , T‑6/20, not published, EU:T:2021:920 , paragraph 85). Therefore, it must be concluded, as the Board of Appeal did, that the goods and services at issue are similar to a low degree. The comparison of the signs The global assessment of the likelihood of confusion must, so far as concerns the visual, phonetic or conceptual similarity of the signs at issue, be based on the overall impression given by the signs, bearing in mind, in particular, their distinctive and dominant elements. The perception of the marks by the average consumer of the goods or services in question plays a decisive role in the global assessment of that likelihood of confusion. In this regard, the average consumer normally perceives a mark as a whole and does not engage in an analysis of its various details (see judgment of 12 June 2007, OHIM v Shaker , C‑334/05 P, EU:C:2007:333 , paragraph 35 and the case-law cited). In the present case, the mark applied for is a figurative mark composed of three word elements written in slightly stylised black characters and in upper-case letters, namely the definite article ‘la’ and the words ‘crème’ and ‘libre’, the latter word being written backwards. The earlier mark is a word mark consisting of the single word ‘libre’. Before addressing the question of the visual, phonetic and conceptual similarity of the marks issue, it is necessary to examine the Board of Appeal’s assessment of their distinctive and dominant elements. The distinctive and dominant elements of the marks at issue In the first place, as regards the mark applied for, the Board of Appeal found, first of all, in paragraphs 106 and 107 of the contested decision, that the expression ‘la crème’ in the mark applied for was devoid of any distinctive character for the goods and services in respect of which registration had been sought, in contrast to the word ‘libre’, the meaning of which, having no connection with cosmetic products, made that element distinctive for the goods and services at issue. Next, the Board of Appeal found, in paragraph 108 of the contested decision, that the message conveyed by the expression ‘la crème libre’, considered as a whole, had a minimum degree of distinctiveness for the goods and services at issue, with the exception of goods which could take the form of a cream. The Board of Appeal’s assessment is not disputed by the applicant. Lastly, the Board of Appeal took the view, in paragraph 109 of the contested decision, that the mark applied for did not contain any element that could be deemed visually dominant in relation to the others, having regard, in essence, to the identical font used for each of its word elements. That assessment is also not disputed by the applicant. In the second place, as regards the earlier mark, it is common ground between the parties that it contains only one word element, which is distinctive. Thus, the applicant merely calls into question the conclusions that the Board of Appeal drew from those assessments when examining the similarity of the marks at issue. Visual comparison The Board of Appeal found, in paragraph 127 of the contested decision, that the signs at issue had a low degree of visual similarity. The applicant disputes that finding, arguing, in essence, that the presence of the element ‘libre’ in both signs cannot outweigh the significant dissimilarities between them relating, in particular, to the length and the representation of the signs. That is particularly so because that element is placed at the end of the mark applied for and because the relevant public would have difficulty reading it, since it is written backwards. In support of its arguments, it relies on the judgment of 27 November 2007, Gateway v OHIM - Fujitsu Siemens Computers (ACTIVY Media Gateway) (T‑434/05, not published, EU:T:2007:359, paragraphs 44 and 45), in which the General Court held that the signs concerned were not visually similar. EUIPO and the intervener dispute those arguments. In that regard, it is true that the relevant public tends to read from left to right and from top to bottom. The fact, however, remains, first of all, that the word ‘libre’ is composed of only five letters and is therefore relatively short. Next, the font used for that element is identical to that used for the expression ‘la crème’. Lastly, the word ‘libre’ is part of basic French vocabulary. Consequently, the element ‘libre’ remains clearly legible for the French-speaking public despite its inverted effect and the fact that it is preceded by the expression ‘la crème’, as was noted by the Board of Appeal. Therefore, in view of the coincidence in the element ‘libre’ in both signs, and of the fact that the earlier mark consists of that element alone, it cannot reasonably be maintained that the marks at issue are not visually similar, even to a low degree. Furthermore, as regards the judgment relied on by the applicant, it must be held that the considerations highlighted by the applicant in that judgment cannot be transposed to the present case. The case that gave rise to the judgment of 27 November 2007, ACTIVY Media Gateway (T‑434/05, not published, EU:T:2007:359), concerned the registration of the EU word mark ACTIVY Media Gateway, whereas the earlier word marks consisted of a single word of seven letters, namely the word ‘gateway’. The Court took the view that the element ‘activy’, by virtue of its position at the beginning of the trade mark applied for and by its reproduction in capital letters, clearly stood out. It also found that it constituted the distinctive and dominant element in the trade mark applied for from a visual point of view (judgment of 27 November 2007, ACTIVY Media Gateway , T‑434/05, not published, EU:T:2007:359, paragraphs 44 and 45). In the present case, the three word elements in the mark applied for are written in upper-case letters, as has been noted in paragraph 64 above. Those elements are written in the same font and the letters are the same size, with the exception of the letter ‘a’, which appears slightly smaller. Furthermore, the Board of Appeal found that, unlike the case on which the applicant relies, the mark applied for did not contain any element capable of being regarded as visually dominant in relation to the others, which is not disputed by the applicant, as has been noted in paragraph 69 above. Consequently, since the present case differs from the case on which the applicant relies as regards the distinctive and dominant elements of the marks at issue, the applicant is not justified in arguing that the two cases are similar. Therefore, the Board of Appeal was correct to find that the marks at issue were visually similar to a low degree. Phonetic comparison The Board of Appeal found, in paragraphs 129 to 131 of the contested decision, that there was an average degree of phonetic similarity between the marks at issue. The applicant disputes that finding of the Board of Appeal and submits that, since the pronunciations of the signs have very different structures and rhythms, the signs cannot show phonetic similarities. The applicant adds that, since the word ‘libre’ is written backwards in the mark applied for, the relevant public, and in particular the non-French-speaking part thereof, will have difficulty pronouncing it. EUIPO and the intervener dispute those claims. As a preliminary point, given that the Board of Appeal limited its examination of the likelihood of confusion to the perception of the French-speaking part of the relevant public, the applicant’s argument concerning non-French-speaking consumers should be rejected. As for the argument regarding the difficulties that consumers have in pronouncing the word ‘libre’, that argument must be rejected for the reasons set out in paragraph 75 above. As regards the alleged different rhythm with which the signs will be pronounced, as was correctly observed by the Board of Appeal, although the relevant public will pronounce the expression ‘la crème’ when referring to the mark applied for, it will nevertheless perceive the presence of the word ‘libre’ in both marks and will pronounce it in an identical manner. Neither the different number of syllables between the signs nor their differences in rhythm can call that finding into question. Consequently, it must be found, as the Board of Appeal did, that, in view of the identical pronunciation of the common word ‘libre’, which, moreover, constitutes the earlier mark and the most distinctive element of the mark applied for, the marks at issue have an average degree of phonetic similarity. Conceptual comparison The Board of Appeal found that the marks at issue were conceptually similar at least to an average degree. The applicant complains that the Board of Appeal reached that conclusion by examining, in actual fact, the meaning of the expression ‘la crème’ separately from that of the word ‘libre’. In that regard, it recalls that the survey that it carried out among 1 000 French-speaking consumers, which is lodged as Annex A.3 to the application, shows that 67% of those consumers perceived the expression ‘la crème’ and the word ‘libre’ as being indivisible. The applicant maintains that the mark applied for, taken as a whole, refers to the unique and amusing concept of a free cream, which is devoid of any meaning. In that regard, the applicant also relies on a decision of the Board of Appeal of 30 November 2020 regarding the sign CUISINE LIBRE. EUIPO and the intervener dispute those arguments. In that regard, first, it should be noted that the expression ‘la crème libre’ in the mark applied for forms an autonomous conceptual unit, as was noted by the Board of Appeal. Second, given that the signs share the word ‘libre’, the Board of Appeal was correct to observe that they both conveyed the concept of liberty. Third, the expression ‘la crème’, which, moreover, is not very distinctive for the goods and services covered by the mark applied for, does not weaken that conceptual similarity. The meaning of the word ‘libre’ is not altered by the addition of the expression ‘la crème’. Fourth, the applicant’s argument based on its survey, according to which the expression ‘la crème’ and the word ‘libre’ are indivisible, confirms the foregoing considerations. Even though the concept of a free cream, taken as a whole, has no meaning, the fact remains that that expression consists of the article ‘la’, the word ‘crème’, which is not very distinctive, and the word ‘libre’, which clearly alludes to the concept of liberty. Fifth, as regards the decision of the Board of Appeal regarding the sign CUISINE LIBRE relied on by the applicant, it should be recalled that, in its review of legality, the Court is not bound by the decision-making practice of EUIPO (see judgment of 7 September 2022, Völkl v EUIPO - Marker Dalbello Völkl (International) (Völkl) , T‑155/21, not published, EU:T:2022:518 , paragraph 32 and the case-law cited). Consequently, it must be found, as the Board of Appeal did, that the signs are conceptually similar to an average degree. The distinctiveness of the earlier mark As is apparent from recital 11 of Regulation 2017/1001, the assessment of the likelihood of confusion depends on numerous elements, in particular the public’s recognition of the trade mark on the market in question. The more distinctive the trade mark, the greater will be the likelihood of confusion, and therefore marks with a highly distinctive character, either per se or because of their recognition by the public, enjoy broader protection than marks with less distinctive character (see, by analogy, judgments of 11 November 1997, SABEL , C‑251/95, EU:C:1997:528, paragraph 24; of 29 September 1998, Canon , C‑39/97, EU:C:1998:442 , paragraph 18; and of 22 June 1999, Lloyd Schuhfabrik Meyer , C‑342/97, EU:C:1999:323, paragraph 20). In determining the degree of distinctive character of a mark, an overall assessment should be made of the greater or lesser capacity of the mark to identify the goods or services for which it has been registered as coming from a particular undertaking. Account should be taken of the inherent characteristics of the trade mark, including whether it does or does not contain an element descriptive of the goods or services for which it has been registered, as well as other criteria, such as how intensive, geographically widespread and long-standing use of the mark has been (see judgment of 24 November 2005, ARTHUR ET FELICIE , T‑346/04, EU:T:2005:420, paragraphs 55 and 56 and the case-law cited). In paragraphs 141 to 144 of the contested decision, the Board of Appeal stated that, since the intervener had not explicitly claimed that its mark was particularly distinctive by virtue of intensive use or reputation, the assessment of the distinctiveness of the earlier mark would rest on its distinctiveness per se. In that regard, the Board of Appeal took the view that the earlier mark had no meaning for the relevant public in connection with the goods covered by that mark. Therefore, it considered its distinctiveness to be normal. The applicant maintains, in essence, that the distinctive character of the earlier mark is weak, given that a number of marks exist that include the word ‘libre’ and designate goods in Class 3. EUIPO and the intervener dispute those arguments. As regards the applicant’s claims that the word ‘libre’ appears in the name of numerous trade marks covering the same goods, it must be noted that, according to the case-law, the relevant factor for the purposes of disputing the distinctive character of an element is its actual presence on the market and not its presence in registers or databases (judgment of 8 March 2013, Mayer Naman v OHIM - Daniel e Mayer (David Mayer) , T‑498/10, not published, EU:T:2013:117, paragraph 77). In the present case, the applicant has produced Annexes A.3 and A.7 to the application in support of its claims. However, in the first place, Annex A.3 to the application consists of a survey regarding the signs at issue and their perception by the respondents. It does not, therefore, contain any relevant data as regards the distinctive character of the earlier mark. In the second place, Annex A.7 to the application contains only examples of French and EU trade marks covering goods in Class 3, without any additional information on their actual use. Therefore, the evidence submitted by the applicant is not sufficient to prove actual use of those marks containing the word ‘libre’ in their name. Consequently, there is no need to call into question the Board of Appeal’s finding that the earlier mark had an average degree of distinctiveness. The likelihood of confusion A global assessment of the likelihood of confusion implies some interdependence between the factors taken into account and, in particular, between the similarity of the trade marks and that of the goods or services covered. Accordingly, a low degree of similarity between those goods or services may be offset by a high degree of similarity between the marks, and vice versa (judgments of 29 September 1998, Canon , C‑39/97, EU:C:1998:442 , paragraph 17, and of 14 December 2006, VENADO with frame and others , T‑81/03, T‑82/03 and T‑103/03, EU:T:2006:397 , paragraph 74). The Board of Appeal found, in essence, that the signs at issue were, as a whole, similar to an average degree, given that a non-negligible component of the mark applied for corresponded to the whole of the earlier mark. According to the Board of Appeal, given the normal inherent distinctiveness of the earlier mark and the fact that the goods and services at issue were either identical or similar to varying degrees, the French-speaking part of the relevant public, which has an average level of attention, would be likely to think that they have the same origin. In the Board of Appeal’s view, there was therefore a likelihood of confusion, which might also give rise to an association, since that public might think that the goods and services at issue come from the same undertaking or from economically linked undertakings. The applicant disputes the existence of a likelihood of confusion. First, the signs at issue are different. Second, the mark applied for is to be assessed as a whole and the relevant public would not keep in mind the word ‘libre’. Third, the earlier mark has a weak distinctive character, since there are numerous marks that include the word ‘libre’ in their name. Fourth, the level of attention of consumers of the goods covered by the earlier mark is high, so that those consumers would not confuse the signs at issue, as shown by the survey lodged as Annex A.3. In the first place, as regards the similarity of the signs, reference should be made to the considerations set out in paragraphs 72 to 96 above. In the second place, given that the word ‘libre’ is easily recognisable and constitutes the only distinctive element of the mark applied for, the applicant is not justified in claiming that it will not be kept in mind by the relevant public. In the third place, as regards the distinctive character of the earlier mark, it must be recalled that, as has been established in paragraphs 102 to 104 above, the applicant has not shown that that distinctive character had been weakened by the actual use on the market of other signs consisting of the word ‘libre’ for goods in Class 3. In the fourth place, as has been noted in paragraphs 24 and 25 above, the level of attention of the relevant public is average. Therefore, given that the goods and services at issue are either identical or similar to varying degrees, and in view of the normal distinctiveness of the earlier mark, and of the low degree of visual similarity and the average degree of phonetic and conceptual similarity between the marks at issue, the Board of Appeal did not make an error of assessment in taking the view that there was a risk that the relevant public, which displayed an average level of attention, might attribute the same commercial origin to the goods and services covered by the marks at issue. Those findings cannot be called into question by the survey - set out in Annex A.3 - that has been produced by the applicant in order to demonstrate the absence of confusion between the marks at issue on the part of the relevant public. The data presented therein were collected between 25 January and 2 February 2022 on the basis of four questions. The sample of respondents consists of 1 000 French consumers from various socio-professional categories. From the outset, it should be borne in mind that, according to settled case-law, the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows, in particular, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (judgment of 13 May 2020, Divaro v EUIPO - Grendene (IPANEMA) , T‑288/19, not published, EU:T:2020:201 , paragraph 41). In the present case, 20% of the respondents answered in the affirmative the question of whether they perceived a link between the marks at issue. In addition, 28% of the respondents replied that they considered the signs to belong to the same undertakings. In this instance, first, it should be noted, first of all, that the survey in question was not carried out in the objective circumstances in which the marks at issue are present, or may be present, on the market. Next, in accordance with the case-law, in the global assessment of the likelihood of confusion, account should be taken of the fact that the average consumer only rarely has the chance to make a direct comparison between the different marks but must place his or her trust in the imperfect picture of them that he or she has kept in his or her mind (judgment of 22 June 1999, Lloyd Schuhfabrik Meyer , C‑342/97, EU:C:1999:323, paragraph 26). Lastly, in the survey in question, the participants were confronted only with the marks at issue. Second, the fourth question of the survey, namely whether, in the opinion of the respondents, the signs at issue belonged to the same company or to two different companies, concerns, in essence, the existence of a likelihood of confusion. However, in order to assess whether such a likelihood exists, it follows from Article 8(1)(b) of Regulation 2017/1001 that account should be taken of the perception of the relevant public in relation to the goods and services at issue. In the present case, it should be noted that the participants in the survey had no information on the goods and services covered by the signs at issue. Consequently, the results for that question cannot be regarded as relevant. Third, irrespective of the probative value of the survey, it must be stated that, as EUIPO and the intervener correctly contend, the percentage of 28%, namely the proportion of participants who considered the signs at issue to belong to the same undertakings, is not negligible for the purpose of assessing whether there is a likelihood of confusion. Accordingly, taking account of the considerations set out in paragraphs 115 to 118 above, it should be found that the results of the survey produced by the applicant are not such as to invalidate the Board of Appeal’s findings. In view of all of the foregoing considerations, and without it being necessary to rule on EUIPO’s argument based on the inadmissibility of Annex A.1, since the single plea on which the applicant relies in support of the form of order which it seeks cannot be upheld, the action must be dismissed. Costs Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful and a hearing has been held, 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 (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Azalee Cosmetics to pay the costs. Kowalik-Bańczyk Hesse Dimitrakopoulos Delivered in open court in Luxembourg on 21 February 2024. V. Di Bucci S. Papasavvas Registrar President * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII