Banco de Investimento Global v EUIPO - Banco BIC Português (EUROBIC) (EU trade mark - Judgment) [2022] EUECJ T-125/21 (02 March 2022)

Judgment Background to the dispute On 26 May 2017, the intervener, Banco BIC Português, SA, 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), as amended (replaced by 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)). Registration as a mark was sought for the word sign EUROBIC. The goods and services in respect of which registration was sought are in, inter alia, Classes 9 and 36 of the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks of 15 June 1957, as revised and amended, and correspond, for each of those classes, to the following description: – Class 9: ‘Encoded credit and debit cards, magnetic, and encoded cards, magnetic, for banking operations’; – Class 36: ‘Insurance; Monetary affairs; Real estate affairs; Financial services including those provided via the internet or other means of telecommunications; Banking; Information and consultancy relating to financial affairs and banking’. The trade mark application was published in European Union Trade Marks Bulletin No 2017/104 of 5 June 2017. On 4 September 2017, the applicant, Banco de Investimento Global, SA, filed a notice of opposition pursuant to Article 41 of Regulation No 207/2009 (now Article 46 of Regulation 2017/1001) to registration of the mark applied for in respect of all the goods and services covered by that mark. The opposition was based on the following earlier marks: – the EU figurative mark, reproduced below, registered under No 14016547 in respect of goods and services in Classes 9 and 36 and corresponding, for each of those classes, to the following description: – Class 9: ‘Credit cards’; – Class 36: ‘Provision of prepaid cards and tokens; Insurance services; Financial and monetary services, and banking; Valuation services; Real estate services; Real estate administration; Administration of financial affairs relating to real estate; Securities lending; Pawnbrokerage; Loan and credit, and lease-finance services; Financing and funding services; Financial information, data, advice and consultancy services; Investment services; Financial transfers and transactions, and payment services; Currency trading and exchange services; Administration of financial affairs; Administration of deposit taking; Financial management; Financial underwriting and securities issuance (investment banking); Acquisition for financial investment; Trust investment services; Investment custody; Financing of investments; Investment asset management; Portfolio management; Financial portfolio management; Investment by electronic means; Development of investment portfolios; Card services; Cash, check (cheque) and money order services; Issuing letters of credit and certificates of deposit; Arranging monetary transfers; Banking services provided for paying bills by telephone; Banking services relating to the transfer of funds from accounts; Banking services in relation to the electronic transfer of funds; Direct debit services; Financial transaction services; Money transmission services; Financial services relating to the withdrawal and depositing of cash; Execution of financial transactions (Services for the -); Financial payment services; Issuing stored value cards; Issuance of travelers’ checks; Issuing of travellers’ cheques and letters of credit; Issuing of travellers’ cheques and currency vouchers; Issuance of tokens of value; Brokerage; Monetary affairs; Online banking; Management services for real estate investment; Credit services; Provision of credit facilities; Financing services; Financial analysis; Banking; Stock exchange quotations; Mutual funds; Fund investments; Credit card and payment card services; Warranty services; Check [cheque] verification; Clearing, financial; Financial consultancy; Deposits of valuables; Issuance of credit and debit cards; Loans [financing]; Trusteeship; Financial information; Electronic funds transfer’: – the EU figurative mark, reproduced below, registered under No 4949871 in respect of services in Class 36 and corresponding to the following description: ‘Insurance; financial affairs; monetary affairs; real estate affairs’; – the EU figurative mark, reproduced below, registered under No 14018774 in respect of services in Classes 35, 36 and 38 and corresponding, for each of those classes, to the following description: – Class 35: ‘Business analysis, research and information services’; – Class 36: ‘Financial information, data, advice and consultancy services; Financial transfers and transactions, and payment services; Currency trading and exchange services; Loan and credit, and lease-finance services; Investment services; Fund investments; Financial underwriting and securities issuance (investment banking); Investment custody; Trust investment services; Development of investment portfolios; Financing of investments; Investment asset management; Portfolio management; Investment by electronic means; Investment of money (Services for -); Financial services relating to investment; Brokerage services for capital investments; Financial investment management services; Investment business services; Investment trusteeship and advisory services; Execution of financial transactions (Services for the -); Electronic funds transfer by telecommunications; Electronic funds transfer; Financial transaction services; Brokerage; Currency trading; Investment brokerage; Financial investment brokerage; Stocks and bonds brokerage; Investment consultation; Investment analysis’; – Class 38: ‘Telecommunication services’: – the Portuguese word mark BANCO BIG registered under No 446934 in respect of services in Class 36 and corresponding to the following description: ‘Insurance; Monetary affairs; Real estate affairs; Financial services including those provided via the internet or other means of telecommunications; Banking; Information and consultancy relating to financial affairs and banking’; – the Portuguese word mark BANCO BIG, registered under No 516848 in respect of services in Class 36 and corresponding to the following description: ‘Insurance; Monetary affairs; Real estate affairs; Financial services including those provided via the internet or other means of telecommunications; Banking; Information and consultancy relating to financial affairs and banking’; – the Portuguese figurative mark, reproduced below, registered under No 512902 in respect of services in Class 36 and corresponding to the following description: ‘Insurance; Monetary affairs; Real estate affairs; Financial services including those provided via the internet or other means of telecommunications; Banking; Information and consultancy relating to financial affairs and banking’: By decision of 22 February 2019, the Opposition Division upheld the opposition in part. On the basis of earlier Portuguese mark No 512902, it concluded that there was a likelihood of confusion, in part upheld the opposition and refused registration of the mark applied for in respect of the goods and services listed in paragraph 3 above. On 18 March 2019, the intervener filed a notice of appeal with EUIPO, pursuant to Articles 66 to 71 of Regulation 2017/1001, against the decision of the Opposition Division in so far as it had upheld the opposition in part. By decision of 25 November 2020 (‘the contested decision’), the First Board of Appeal of EUIPO annulled the decision of the Opposition Division and rejected the opposition in its entirety. It stated that the earlier disputes between the parties concerning other rights – namely the intervener’s marks Banco BIC, which had been annulled by the Portuguese courts – differed from those at issue here and were therefore not the subject of the present case. It noted that the survey of a company, carried out at the intervener’s request, did not relate to the marks at issue and that that survey and the Marktest survey relating to the comparison of the figurative marks EuroBic and Banco BiG, submitted by the applicant, were subjective. Examining, first of all, the opposition in relation to earlier mark No 512902, the Board of Appeal found that the relevant public was the general public and the professional public in Portugal, that the level of attention of that public would be high and that consumers tended to be more attentive when faced with acronyms due to the large number of possible meanings. It took the view that the goods and services covered by the mark applied for were similar or identical to the services covered by earlier mark No 512902. The Board of Appeal stated that, even if distinctive to a low degree, the word elements ‘banco’ and ‘euro’ of the signs at issue had to be taken into account in the assessment of their similarity, that the visual similarity of the signs at issue was low or lower than average, that they had a lower than average degree of phonetic similarity and that they were conceptually different. It found that there was no likelihood of confusion. It added that that finding would not be different even if account were taken of the enhanced distinctiveness of earlier Portuguese trade mark No 512902, and that the result would also not be different by focusing the analysis on the other earlier marks listed in paragraph 6 above. Procedure and forms of order sought The applicant claims that the Court should: – declare that there is a likelihood of confusion and, consequently, annul the contested decision; – order EUIPO to pay the costs. EUIPO contends that the Court should: – dismiss the action in its entirety; – order the applicant to pay the costs. The intervener contends that the Court should: – dismiss the action; – confirm the contested decision; – order the applicant to pay the costs, including the costs incurred in the proceedings before EUIPO and before the Board of Appeal. Law In view of the date on which the application for registration at issue was filed, namely 26 May 2017, which is decisive for the purpose of identifying the applicable substantive law, the facts of the case are governed by the substantive provisions of Regulation No 207/2009 (see, to that effect, judgments of 8 May 2014, Bimbo v OHIM , C‑591/12 P, EU:C:2014:305, paragraph 12, and of 18 June 2020, Primart v EUIPO , C‑702/18 P, EU:C:2020:489 , paragraph 2 and the case-law cited). Accordingly, in the present case, so far as the substantive rules are concerned, the references to Article 8(1)(b) of Regulation 2017/1001 made by the Board of Appeal in the contested decision and by the applicant in the arguments raised must be understood as referring to Article 8(1)(b) of Regulation No 207/2009, the wording of which is identical. In support of its action, the applicant relies on two pleas in law. The first alleges infringement of Article 95(1) and (2) and of Article 97(1)(c) and (f) of Regulation 2017/1001 and the second alleges infringement of Article 8(1)(b) of Regulation No 207/2009. The first plea in law, alleging infringement of Article 95 (1) and (2) and of Article 97 (1)(c) and (f) of Regulation 2017/1001 The applicant raises a first plea in law, alleging infringement, first, of Article 95(1) and (2) of Regulation 2017/1001, which, inter alia, restricts the examination carried out by EUIPO to the facts, evidence and arguments provided by the parties and the relief sought, and, secondly, of Article 97(1)(c) and (f) of that regulation, which provides, inter alia, that EUIPO may request the production of documents and sworn statements. It takes the view that the Board of Appeal incorrectly assessed the evidence which it submitted and the circumstances of the case on which it relied. In the first place, the applicant claims that the Board of Appeal should have taken account of the fact that the earlier use of the mark BANCO BIC has a strong impact on the way in which the relevant public perceives the mark EUROBIC. In the second place, it submits that the evidence showing the influence of the mark BANCO BIC in order to assess the likelihood of confusion of the marks at issue was disregarded. EUIPO, supported to that effect by the intervener, disputes those arguments. In the first place, it is necessary to examine the complaint that the Board of Appeal should have taken account of the fact that the earlier use of the mark BANCO BIC – of which the intervener was the proprietor – has a strong impact on the way in which the relevant public perceives the mark applied for. The applicant notes that, because of a likelihood of confusion between the marks BANCO BIC and BANCO BiG, the tribunal da propiedade intelectual de Lisboa (Intellectual Property Court of Lisbon, Portugal) prohibited the intervener from using the mark BANCO BIC. It claims that the present case is part of that background, since the intervener changed its mark BANCO BIC in favour of the mark applied for without, however, altering its appearance. In paragraph 19 of the contested decision, the Board of Appeal found, in essence, that the previous disputes between the parties ‑ which dealt with the intervener’s use of the mark BANCO BIC and the likelihood of confusion between that mark and the mark BANCO BiG – concerned other marks which differ from the signs at issue in the present case and that those other marks were not the subject of the present analysis of a likelihood of confusion within the meaning of Article 8(1)(b) of Regulation No 207/2009. According to the case-law, the comparison must be made between the signs as they were registered or as they appear in the trade mark application, regardless of whether they are used alone or together with other marks or indications. Therefore, the signs to be compared were precisely those examined by the Board of Appeal, namely the mark applied for and earlier mark No 512902 (see, to that effect, judgments of 8 December 2005, Castellblanch v OHIM – Champagne Roederer (CRISTAL CASTELLBLANCH) , T‑29/04, EU:T:2005:438, paragraph 57, and of 18 October 2007, AMS v OHIM – American Medical Systems (AMS Advanced Medical Services) , T‑425/03, EU:T:2007:311, paragraph 91). It should also be observed that the similarity of the marks at issue must be assessed from the point of view of the average consumer, by reference to the intrinsic qualities of those marks (judgments of 2 September 2010, Calvin Klein Trademark Trust v OHIM , C‑254/09 P, EU:C:2010:488 , paragraph 46, and of 12 November 2015, CEDC International v OHIM – Fabryka Wódek Polmos Łańcut (WISENT VODKA), T‑450/13, not published, EU:T:2015:841 , paragraph 95). As EUIPO notes, it follows from the foregoing that the assessment of the likelihood of confusion must be carried out by reference to the intrinsic qualities of the mark applied for and not to circumstances relating to the earlier use of other different marks, the use of which has, moreover, been prohibited, even if they had some elements in common. In that regard, and in any event, the factual and legal elements which led the tribunal da propiedade intelectual de Lisboa (Intellectual Property Court of Lisbon) to conclude that there was a likelihood of confusion between the marks BANCO BIC and BANCO BiG cannot be a precondition for the assessment of the likelihood of confusion between the mark applied for and earlier mark No 512902 and, therefore, do not in any way permit the conclusion that it would have been necessary to take account of the earlier use of the mark BANCO BIC and of the effect of that use on the relevant public, in order to assess the likelihood of confusion between the marks at issue. Therefore, the Board of Appeal was correct to find that the circumstances relating to the intervener’s use of its old marks BANCO BIC are irrelevant for the purposes of assessing the likelihood of confusion, under Article 8(1)(b) of Regulation No 207/2009, between earlier mark No 512902 and the mark applied for. In the second place, it is necessary to examine the applicant’s argument that the Board of Appeal did not take into account the evidence which the applicant had submitted in support of its arguments. As a preliminary point, it should be noted that, as EUIPO points out, Annexes A.12 to A.15 – which consist of newspaper articles for the years 2016 and 2017 – were produced for the first time before the Court and must therefore be rejected as inadmissible. The purpose of actions before the Court is to review the legality of decisions of the Boards of Appeal of EUIPO for the purposes of Article 72 of Regulation 2017/1001, with the result that the role of the Court is not to re‑evaluate the factual circumstances in the light of evidence which has been produced for the first time before it (see, to that effect, judgments of 24 November 2005, Sadas v OHIM – LTJ Diffusion (ARTHUR ET FELICIE) , T‑346/04, EU:T:2005:420, paragraph 19, and of 15 March 2018, La Mafia Franchises v EUIPO – Italy (La Mafia SE SIENTA A LA MESA) , T‑1/17, EU:T:2018:146 , paragraph 16). Consequently, the review of the legality of the contested decision must be carried out in the light solely of the evidence which was produced during the administrative proceedings and appears in EUIPO’s case file (see, to that effect, judgments of 13 September 2016, Globo Comunicação e Participações v EUIPO (Sound mark) , T‑408/15, EU:T:2016:468 , paragraph 20, and of 27 January 2021, Olimp Laboratories v EUIPO – OmniVision (Hydrovision) , T‑817/19, not published, EU:T:2021:41 , paragraph 26). It is necessary to examine the other items of evidence which the applicant claims were not taken into account by the Board of Appeal. First, the invoice relating to a service provided in error to the applicant, the emails relating to the applicant’s golf tournament and the respective programme and invitations relating to that tournament, the emails exchanged with a service provider relating to catering services and the corresponding invoice, as well as a court order sent in error to the applicant, are irrelevant. The same applies, without there being any need to consider their admissibility, to Annexes A.8 to A.11 submitted by the applicant, which consist of newspaper articles, a court order and a report of a television broadcast which concern the bank with the corporate name ‘Banco BIC Português, SA’. That evidence does not refer to the mark applied for, but to the earlier marks BANCO BIC of the intervener or its corporate name ‘Banco BIC Português, SA’. It is apparent from paragraphs 19 to 25 above that the use of the marks BANCO BIC is irrelevant for the purposes of assessing the likelihood of confusion in the present case, with the result that the evidence relating to those marks cannot in any event be properly taken into account in order to establish whether there was a likelihood of confusion between the marks at issue. Secondly, the applicant submits that the likelihood of confusion between the marks at issue is demonstrated by the fact that the leading payment service provider in Portugal erroneously sent it a term deposit banking form of the intervener, which contained Portuguese figurative mark No 594424 on each page, represented as follows: It must, however, be stated that that figurative mark EuroBic differs from the mark applied for in the presence of a significant figurative element (that of a baobab tree), the contrast between the colours red and white and the font. Moreover, that evidence does not illustrate a case of a likelihood of confusion on the part of the relevant public, whose level of attention is high, but refers rather to the conduct of third parties or service providers. It should be added that any cases of a likelihood of confusion identified by the applicant can be perfectly well explained by the intervener’s corporate name, ‘Banco BIC Português’, which is similar to the earlier marks BANCO BiG and BANCO BIG referred to in paragraph 6 above, and that that circumstance therefore bears no relation to the alleged similarity of that earlier mark and the figurative mark EuroBic. Thirdly, it follows from paragraphs 30 to 33 above that the Board of Appeal cannot be criticised, contrary to what the applicant claims, for not having referred to the evidence which the applicant submitted or for not having explained how that evidence should not be taken into account. Apart from the fact that that evidence could be regarded as irrelevant to the present case, it is settled case-law that the Board of Appeal is not obliged to express a view on every argument submitted by the parties. The mere fact that the Board of Appeal does not refer to a particular document in the statement of reasons for its decision is not sufficient to establish that it did not take that document into account in its overall examination of the opposition (see, to that effect, judgments of 9 December 2010, Tresplain Investments v OHIM – Hoo Hing (Golden Elephant Brand) , T‑303/08, EU:T:2010:505, paragraph 46, and of 19 September 2017, Tamasu Butterfly Europa v EUIPO – adp Gauselmann (Butterfly) , T‑315/16, not published, EU:T:2017:629, paragraph 70). It is sufficient if it sets out the facts and legal considerations which have decisive importance in the context of the decision (judgment of 2 April 2020, Isigny – Sainte Mère v EUIPO (Shape of a golden container with a type of wave) , T‑546/19, not published, EU:T:2020:138, paragraph 61). Specifically, the Board of Appeal set out, in paragraph 19 of the contested decision, the facts and legal considerations having decisive importance in the context of its decision in that regard, namely that the previous disputes between the parties concerning other rights different from those at issue in the present case were not the subject of the present analysis of a likelihood of confusion. Thus, the reasons why all of the evidence relating to the intervener’s old mark, BANCO BIC, and to its corporate name, Banco BIC Português, were not taken into account are apparent from paragraph 19 of the contested decision. Contrary to what the applicant appears to imply, the Board of Appeal therefore stated to the requisite legal standard the reasons which led it to take the view that such documents were not relevant. Moreover, the Board of Appeal was correct in finding, in essence, that those documents were irrelevant since they related to other rights which differed from those at issue in the present case. Fourthly, the applicant claims that the Board of Appeal incorrectly disregarded the ‘Marktest’ market survey which it submitted in support of its arguments. It maintained that that survey revealed that most of the persons questioned had replied that there was no or very slight difference between the elements ‘bic’ and ‘eurobic’ because of the presence of the acronym ‘bic’ or the similarity of the names. It must be borne in mind that, in paragraphs 23 and 24 of the contested decision, the Board of Appeal criticised the subjectivity of the survey. It stated that it had not been demonstrated that the persons questioned had been selected in such a way as to represent part of the relevant public and found, in essence, that the questions were leading and that they thus led to unusual speculations. 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). Thus, in order to assess the probative value of a document, it is necessary to take account, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on the face of it, the document appears sound and reliable (see, to that effect, judgment of 6 November 2014, Popp and Zech v OHIM – Müller-Boré & Partner (MB) , T‑463/12, not published, EU:T:2014:935 , paragraph 53 and the case-law cited). The probative value of a survey depends on the survey method used (see, to that effect, judgment of 12 July 2006, Vitakraft-Werke Wührmann v OHIM – Johnson’s Veterinary Products (VITACOAT) , T‑277/04, EU:T:2006:202, paragraph 38). Applied to a survey produced as evidence by one party, the case-law cited in paragraph 39 above has already led the Court to refrain from recognising that the results of the survey have probative value, as the survey in question did not include sufficient information to enable the Court to satisfy itself as to its reliability (see, to that effect, judgments of 30 May 2013, Brauerei Beck v OHIM – Aldi (Be Light) , T‑172/12, not published, EU:T:2013:286, paragraph 28, and of 24 October 2018, Bayer v EUIPO – Uni-Pharma (SALOSPIR) , T‑261/17, not published, EU:T:2018:710 , paragraph 61). The probative value of opinion surveys may, inter alia, depend on the way in which the questions are formulated (see, to that effect, judgment of 24 October 2018, SALOSPIR , T‑261/17, not published, EU:T:2018:710 , paragraph 68). EUIPO and the intervener specifically call into question the probative value of the Marktest survey produced by the applicant on the ground that the questions were leading or speculative. It must be held, as the Board of Appeal found, in essence, in paragraphs 23 and 24 of the contested decision, and as EUIPO and the intervener contend, that the 14 questions raised are leading. For example, beginning with Question No 2, the persons questioned were informed that, in July 2017, the bank Banco Bic changed its trade mark to EuroBic and, in response to that information, they were asked to choose from among three options. That question and the seven subsequent questions raise, in, to say the least, a leading manner, the question of the link between Banco Bic, BIC and EUROBIC. It is only from Question No 10, after the eight questions which focused on the link between the marks Banco BIC and EuroBic, that the persons questioned are asked, in essence, to express their views for the first time on the link between the marks Banco BiG and EUROBIC. It must be held that the persons questioned could have been clearly influenced by the eight preceding questions and by the approach seeking to support, initially, the link between EuroBic and Banco BIC in order to then direct the answers to the questions relating to the comparison of the signs EUROBIC and BANCO BiG. The Board of Appeal was therefore correct to call into question the probative value of that survey on the ground that the questions asked led to ‘unusual speculation’. Fifthly, the applicant relies to no avail on that part of the findings of a company survey – carried out at the request of the intervener – which concerns the comparison of the signs BANCO BiG and EUROBIC. The Board of Appeal did not err in discarding that survey. The sign on which the survey was based differed considerably from the word sign EUROBIC since it was the figurative sign EuroBic represented as follows: Moreover, it must be observed, as the Board of Appeal noted in paragraph 22 of the contested decision, that the questions raised were not consistent with the legal assessment of the similarity of the signs. It was asked whether the two signs at issue came from the same bank, which, in itself, does not shed any light on the visual and phonetic similarity of the marks at issue. Sixthly, it is necessary to reject the applicant’s argument that the Board of Appeal did not take into account the written sworn statements which it submitted. The seven statements produced by the applicant before EUIPO originate from persons directly linked to the undertaking. According to the case-law, sworn statements by a person with close ties to the party concerned are of lower probative value than those of third parties and therefore cannot on their own constitute sufficient evidence (see judgment of 16 June 2015, H. P. Gauff Ingenieure v OHIM – Gauff (Gauff JBG Ingenieure) , T‑585/13, not published, EU:T:2015:386 , paragraph 28 and the case-law cited). That is why the particulars in a written sworn statement by a person linked, in any manner whatsoever, to the company relying on it must, in any event, be supported by other evidence (see, to that effect, judgments of 12 March 2014, Globosat Programadora v OHIM – Sport TV Portugal (SPORT TV INTERNACIONAL) , T‑348/12, not published, EU:T:2014:116, paragraphs 32 and 33, and of 11 December 2014, Nanu-Nana Joachim Hoepp v OHIM – Vincci Hoteles (NAMMU) , T‑498/13, not published, EU:T:2014:1065, paragraph 38). In the present case, the evidence which might have supported the sworn statements are the surveys examined in paragraphs 43 to 47 above. It is, however, apparent from the analysis of those surveys that they are manifestly unreliable. Moreover, most of the 23 questions referred to each of the persons questioned concern the link between the word element ‘bic’ and the word element ‘big’ and the link between the old mark BANCO BIC and the earlier mark BANCO BiG. As regards the few questions concerning the sign EUROBIC, it must be stated that the answers given to those questions are in reality only vague statements of purely subjective impressions on the part of their author. In the light of the foregoing, the Board of Appeal cannot be criticised for having implicitly found that the statements submitted by the applicant had no bearing on the outcome of the dispute. Seventhly, the applicant unsuccessfully complains that the Board of Appeal did not take into account the enhanced distinctiveness of the earlier rights which it considered nonetheless to have been justified by arguments and evidence which it had submitted before the Board of Appeal. It is true that the Board of Appeal states, in paragraph 59 of the contested decision, that, like the Opposition Division, for reasons of procedural economy, it did not analyse the relevant evidence put forward by the applicant in support of its claim of enhanced distinctiveness acquired through use of earlier mark No 512902. However, it stated clearly, in paragraph 72 of the contested decision, that its finding that there is no likelihood of confusion between the signs at issue would not be different even if it were to take into account the enhanced distinctiveness of earlier mark No 512902. It must therefore be held that the Board of Appeal took account of the possibility that earlier mark No 512902 had enhanced distinctiveness, but concluded that this could not alter the outcome of its assessment of the likelihood of confusion. Eighthly, by letter of 19 July 2021 addressed to the Court Registry, the applicant added to the case file a request for information, dated 13 April 2021, concerning two cheques containing the figurative sign EuroBic bearing the stylised drawing of a baobab tree, which the Public Prosecutor of the District of Lisbon sent to it in error, whereas this document was intended for the intervener. However, that prosecutor’s confusion may be explained by the resemblance between the intervener’s corporate name, ‘Banco BIC Português’, and the earlier marks BANCO BiG and BANCO BIG referred to in paragraph 6 above, as has been pointed out in paragraphs 32 and 33 above. Moreover, it must be noted that the two cheques in question bore a stamp which made the element ‘bic’ of the corporate name ‘Banco BIC Portuges SA’ barely legible, thus increasing the risk that it might be read as originating from ‘Banco BIG’. It follows from all of the foregoing that the first plea in law must be rejected as unfounded. The second plea in law, alleging infringement of Article 8 (1)(b) of Regulation No 2 07/2009 In the second plea in law, alleging infringement of Article 8(1)(b) of Regulation No 207/2009, in the first place, the applicant submits that the Board of Appeal made an error of assessment in determining the level of attention of the relevant public in respect of the financial products in Class 9 and in respect of the services in Class 36. It takes the view that these are part of everyday life and that it is incorrect to hold that they always have a significant impact on the future financial situation of consumers or that they are not purchased or contracted on a regular basis or that their price is high. In the second place, the applicant argues that the Board of Appeal erred in its comparison of the goods and services covered by the marks at issue. In the third place, it claims that the Board of Appeal erred in its assessment of the visual, phonetic and conceptual similarity of the signs at issue. EUIPO and the intervener dispute the applicant’s arguments. Under Article 8(1)(b) of Regulation No 207/2009, upon opposition by the proprietor of an earlier trade mark, the trade mark applied for may 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 two marks, there exists a likelihood of confusion on the part of the public in the territory in which the earlier mark is protected. The likelihood of confusion includes the likelihood of association with the earlier trade mark. 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 that same 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 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). The relevant public and its level of attention 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, Mundipharma v OHIM – Altana Pharma (RESPICUR) , T‑256/04, EU:T:2007:46 , paragraph 42 and the case-law cited). The relevant public for the assessment of the likelihood of confusion is composed of users likely to use both the goods or services covered by the earlier mark and those covered by the mark applied for (judgment of 24 May 2011, ancotel v OHIM – Acotel (ancotel.) , T‑408/09, not published, EU:T:2011:241, paragraph 38). Furthermore, that assessment of the likelihood of confusion must be made in relation to the perception of the part of the public with the lowest level of attention, since it will be more prone to confusion (see, to that effect, judgment of 20 May 2014, Argo Group International Holdings v OHIM – Arisa Assurances (ARIS) , T‑247/12, EU:T:2014:258, paragraph 29). In paragraphs 30 to 33 of the contested decision, the Board of Appeal, first of all, stated that the relevant public was the public living in Portugal given that earlier mark No 512902 was a Portuguese mark. Next, it noted that the goods and services covered by the mark applied for were targeted at both the general public and a professional public. Lastly, as regards the level of attention of those consumers, it found that, for the goods in Class 9, the level of attention was considered to be high taking into account their financial nature, and that, for the services in Class 36, the level of attention of consumers was enhanced, as those services were not purchased or contracted on a regular basis, their price was relatively high and they could have a significant impact on the future financial situation of those consumers. It added, moreover, that most of the services in Class 36 were of a technical and specialised nature. That reasoning of the Board of Appeal must be upheld and, therefore, the applicant’s arguments on that issue must be rejected. The applicant cannot succeed with its claim that the attention of consumers is not higher owing to the financial nature of those goods and services, on the ground that they are part of everyday life, they do not always have a significant impact on the future financial situation of consumers, they can be purchased or contracted on a regular basis or their price is not necessarily high. As regards the services in Class 36 covered by the signs at issue, listed in paragraphs 3 and 6 above, it is clear from the case-law that the level of attention of the specialised public and of the general public for ‘financial services’ is high since they are liable to have a direct impact on the economic and financial assets of consumers (see, to that effect, judgment of 8 July 2020, Scorify v EUIPO – Scor (SCORIFY) , T‑328/19, not published, EU:T:2020:311 , paragraph 36), that they generally involve substantial sums of money (see, to that effect, judgments of 11 May 2005, CM Capital Markets v OHIM – Caja de Ahorros de Murcia (CM) , T‑390/03, EU:T:2005:170, paragraphs 26 and 27; of 13 April 2011, Alder Capital v OHIM – Gimv Nederland (ALDER CAPITAL) , T‑209/09, not published, EU:T:2011:169, paragraph 80; and of 10 June 2015, AgriCapital v OHIM – agri.capital (AGRI. CAPITAL) , T‑514/13, EU:T:2015:372 , paragraph 28) and that they may have a significant financial impact (judgments of 19 September 2012, TeamBank v OHIM – Fercredit Servizi Finanziari (f@ir Credit) , T‑220/11, not published, EU:T:2012:444, paragraph 21, and of 5 July 2016, Bundesverband Souvenir – Geschenke – Ehrenpreise v EUIPO – Freistaat Bayern (NEUSCHWANSTEIN) , T‑167/15, not published, EU:T:2016:391, paragraph 22). As regards the other services in Class 36 listed in paragraphs 3 and 6 above, it is necessary to uphold the Board of Appeal’s finding as to the heightened level of attention of the relevant public in that those services are not purchased or contracted on a regular basis, their price is relatively high and they may have a significant impact on the future financial situation of the consumer. Such is the case, for example, for ‘real estate affairs’ which generally involve substantial sums of money (see, to that effect, judgments of 9 September 2011, BVR v OHIM – Austria Leasing (Austria Leasing Gesellschaft m.b. H. Mitglied der Raiffeisen-Bankengruppe Österreich) , T‑197/10, not published, EU:T:2011:455, paragraph 20, and of 10 June 2015, AGRI. CAPITAL , T‑514/13, EU:T:2015:372 , paragraph 28). As regards the goods in Class 9, the Board of Appeal was correct in finding that the relevant public will display a high level of attention with regard to them (see, to that effect, judgment of 26 September 2017, Banca Monte dei Paschi di Siena and Banca Widiba v EUIPO – ING-DIBa (WIDIBA) , T‑83/16, not published, EU:T:2017:662 , paragraph 58). The goods in Class 9 in relation to the financial and banking sector have a certain economic significance for the consumer, as they relate to services connected with his or her financial and economic assets, and the level of attention will therefore be higher (see, to that effect, judgment of 9 September 2011, Austria Leasing Gesellschaft m.b. H. Mitglied der Raiffeisen-Bankengruppe Österreich , T‑197/10, not published, EU:T:2011:455, paragraph 20). In general, consumers of financial and banking services and of related goods select their banking institution carefully and after first carrying out research of the market and the offers available on it. In such cases, therefore, consumers will be much more aware of the differences between the signs at issue (judgment of 13 July 2012, Caixa Geral de Depósitos v OHIM – Caixa d’Estalvis i Pensions de Barcelona (‘la Caixa’) , T‑255/09, not published, EU:T:2012:383, paragraph 21). For the foregoing reasons, it is necessary to reject the applicant’s arguments that potential customers of banks belonging to younger age groups are generally less attentive. Next, the argument that goods such as credit cards are part of everyday life and thus involve a normal level of attention on the part of the relevant public must also be rejected. A difference must be made between the choice of banking products and services, which entails a high level of attention on the part of consumers, on the one hand, and the day-to-day banking operations and the everyday use of banking products, on the other. Thus, the level of attention of the relevant public is not the same when it chooses a bank card and when it uses on a daily basis the card which it has chosen. Similarly, the applicant is wrong to criticise the Board of Appeal for having applied, by analogy, to the services in Class 36, the reasoning set out in the judgment of 1 March 2016, 1&1 Internet v OHIM – Unoe Bank (1e1) (T‑61/15, not published, EU:T:2016:115 , paragraphs 23 and 26) in respect of ‘telecommunications’ services in Class 38. In that judgment, the Court found that the non-professional public’s level of attention with respect to services in Class 38 was relatively high and not normal. It took the view, first, that, while those services could be used on a daily basis by the end consumer, that consumer does not purchase them regularly and their price could be relatively high. It found, secondly, that those services were, in part, technical and specialised in nature. In view of the grounds referred to in paragraphs 66 and 67 above, the Board of Appeal did not err in applying, by analogy, the reasoning set out in the abovementioned judgment. Lastly, the applicant states that the Board of Appeal found that ‘most of the services [were] technical and specialised in nature’, relying in that regard on the judgment of 11 May 2005, CM (T‑390/03, EU:T:2005:170, paragraph 26). In that judgment, the Court held that the services in Class 36 were aimed at a ‘specialised group of persons’, including experts and persons who require professional advice on financial, legal or commercial matters, notably clients of banks or of lawyers. However, in the applicant’s view, financial services such as the opening of an account or the application for and subscription to a credit card are not specialised services, as otherwise ‘the specialised group of persons’ would cover all Portuguese consumers who hold a bank account. Such an argument cannot succeed. First of all, it is clear from the contested decision that the Board of Appeal found only that ‘most’ and not ‘all’ of the services in Class 36 were specialised. Next, the Board of Appeal did not rely solely on the specialised nature of most of those services in order to conclude that the relevant public had a high level of attention with regard to those services. As stated in paragraph 67 above, the Board of Appeal was correct in basing its reasoning on the fact that those services are not purchased or contracted on a regular basis, that their price is relatively high and that they may have a significant impact on the future financial situation. Finally, and to that effect, the services cited by the applicant, namely the opening of an account or the application for and subscription to a credit card, are examples of those services which are not purchased or contracted on a regular basis and which therefore justify a high level of attention. It follows from the foregoing that the Board of Appeal did not err in finding that the level of attention of the relevant public in respect of the goods in Class 9 and the services in Class 36 was high. The comparison of the goods and services The Board of Appeal found that the services in Class 36 covered by the marks at issue were identical, and that assessment has not been disputed by any of the parties. It also took the view that the goods in Class 9 covered by the mark applied for were similar to the services in Class 36 covered by earlier mark No 512902. The applicant disputes, in essence, the fact that the Board of Appeal did not find that the ‘encoded credit and debit cards, magnetic, and encoded cards, magnetic, for banking operations’ in Class 9 covered by the mark applied for were identical to the ‘credit cards’ in Class 9 covered by EU figurative mark No 14016547 represented as follows: It must, however, be pointed out that, in the contested decision, the Board of Appeal followed the approach of the Opposition Division consisting in examining, first, the opposition in relation to earlier mark No 512902, and subsequently found, in paragraph 73 of the contested decision, that the result would also not have been different by focusing its analysis on the opponent’s other earlier rights referred to in paragraph 6 above. In the present case, it must be stated that, although the Board of Appeal expressly referred to the identity of the services in Class 36 in paragraph 40 of the contested decision, it also stated more generally, in paragraph 68 of the contested decision, that there was no likelihood of confusion ‘despite the identity or similarity of some of the contested goods and services with the earlier ones’. In so doing, it found that the conclusion that the goods are also identical would not in any event alter the outcome of the case. Consequently, the complaint that the Board of Appeal disregarded the identity of the goods in Class 9 covered by the mark applied for and by EU figurative mark No 14016547 cannot succeed. It follows that, subject to any error on the part of the Board of Appeal in the examination of the similarity of the signs, the applicant’s argument alleging that the Board of Appeal erred in its assessment of the similarity of the goods in Class 9 is ineffective. 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 addition, it should be noted that the greater or lesser degree of distinctiveness of the elements common to a mark applied for and to an earlier mark is one of the relevant factors in assessing the similarity of the signs (see judgment of 14 September 2017, Aldi Einkauf v EUIPO – Weetabix (Alpenschmaus) , T‑103/16, not published, EU:T:2017:605 , paragraph 47 and the case-law cited). Assessment of the similarity between two signs means more than taking just one component of a composite sign and comparing it with another sign. On the contrary, the comparison must be made by examining each of the signs in question as a whole, which does not mean that the overall impression conveyed to the relevant public by a composite sign may not, in certain circumstances, be dominated by one or more of its components. It is only if all the other components of the sign are negligible that the assessment of the similarity can be carried out solely on the basis of the dominant element (judgment of 12 June 2007, OHIM v Shaker , C‑334/05 P, EU:C:2007:333 , paragraphs 41 and 42). – The distinctive and dominant elements of the signs at issue The applicant disputes the Board of Appeal’s assessment of the distinctive character of the elements making up the signs at issue. In accordance with the case-law cited in paragraph 82 above, it is necessary to examine the applicant’s arguments relating to that issue before proceeding to a visual, phonetic and conceptual comparison of the signs at issue. As the Board of Appeal did, it must first of all be observed that the word element ‘banco’ of earlier mark No 512902 will be understood by the relevant public as referring to a financial institution and that it thus has a weak distinctive character in view of the fact that the relevant services are all linked to the financial sector. Next, it is also necessary to uphold the Board of Appeal’s assessment that the word element ‘big’ of earlier mark No 512902 may be regarded as the visually dominant element since it appears in bold. Lastly, the Board of Appeal correctly found, in essence, that, for a large part of the relevant public, that word element ‘big’ would be associated with the English word ‘big’, the meaning of which is known by the general public in that it forms part of basic English vocabulary, that the mark BANCO BiG would be understood as alluding to the expression ‘big bank’, and that the same word element ‘big’ could also be perceived as an acronym of ‘Banco de Investimento Global’. Therefore, the Board of Appeal was correct in holding, in essence, that the weak distinctive character of the word element ‘banco’ did not suffice to make it nonetheless negligible and that it therefore had to be taken into account. As regards the mark applied for consisting of a single word, the Board of Appeal correctly found that it had no dominant visual element. Nor did it err in finding that the word element ‘bic’ of the word ‘eurobic’ had a normal degree of distinctiveness and in taking the view that the word element ‘euro’ of the same word had a weak distinctive character and did not therefore regard it as negligible. The applicant submits, in essence, but to no avail, that the word element ‘bic’ is dominant on the ground that it has become firmly established, as a separate element, in the mind of Portuguese consumers because of the mark declared invalid BANCO BIC. First, as noted in paragraphs 23 and 24 above, the assessment of the likelihood of confusion must be carried out by reference to the intrinsic qualities of the mark applied for and not to circumstances relating to the earlier use of other different marks. Secondly, and in any event, it follows from paragraphs 37 to 47 above that the surveys put forward by the applicant on that point are not reliable. Furthermore, as the Board of Appeal correctly stated, the normal distinctive character of the word element ‘bic’ is confirmed by the fact that it can easily be perceived as an acronym and that a part of the professional public will associate it with the expression ‘Bank Identifier Code’, whereas a large part of the public will not be able to make such an association. In any event, even if the view should be taken that the element ‘bic’ is dominant in the mark applied for, this still does not suffice to show that the word element ‘euro’ should be regarded as negligible. The weak distinctive character of an element of a mark does not necessarily mean that that element will not be taken into consideration by the relevant public by reason in particular of its position in the sign or its size or its length (see, to that effect, judgment of 26 November 2015, Bionecs v OHIM – Fidia farmaceutici (BIONECS) , T‑262/14, not published, EU:T:2015:888 , paragraph 47). In that regard, it should be noted that, despite its weak distinctive character, an element of a mark which is descriptive is likely to attract the attention of the relevant public because of its length and position at the beginning of that mark (see, to that effect, judgment of 6 June 2013, McNeil v OHIM – Alkalon (NICORONO) , T‑580/11, not published, EU:T:2013:301, paragraph 63). In the present case, the word element ‘euro’ is specifically situated at the beginning of the mark applied for and contains a syllable more than the word element ‘bic’, which, moreover, has only a normal distinctive character. – The visual, phonetic and conceptual comparison It is in the light of the foregoing considerations that it is necessary to examine whether the visual, phonetic and conceptual comparison of the marks at issue carried out by the Board of Appeal is vitiated by errors. First, the Board of Appeal was correct in finding that the signs at issue had at most a low or below average degree of visual similarity. Although they coincide in the letters ‘b’ and ‘i’ and, if the mark applied for is represented in capitals, the capital letters ‘C’ and ‘G’ are similar in shape, the signs at issue differ in the presence, in earlier mark No 512902, of the word element ‘banco’ next to the word element ‘big’ and, in the mark applied for, of the word element ‘eurobic’, namely the word ‘euro’ added to the word ‘bic’. Thus, the signs at issue differ as regards the number of word elements and the number of letters that they contain. Furthermore, the mark applied for consists of a single word element, namely the term ‘eurobic’. Contrary to the applicant’s assertions, the single common letter ‘o’ at the end of the words ‘banco’ and ‘euro’ does not call into question the fact that those two word elements are significantly different in visual terms. In that context, the applicant submits that the Board of Appeal based its reasoning finding that there was a low degree of visual similarity between the signs at issue on the fact that earlier mark No 512902, which it took into account in examining the likelihood of confusion, differed from the mark applied for in the presence of an additional coloured rectangle. It states that two of the earlier marks relied on (namely Portuguese marks No 446934 and No 516848) are also word marks, that, accordingly, the reasoning based on the coloured rectangle cannot apply to them and that that situation highlights the incorrectness of the Board of Appeal’s decision. However, in paragraph 73 of the contested decision, the Board of Appeal clearly stated that its whole analysis of the likelihood of confusion made it possible to lead to the same result in relation to the five other earlier marks relied on, including the Portuguese word marks No 446934 and No 516848. In so doing, it found, in essence, and correctly, that the single consideration referred to in paragraph 91 above was sufficient for a finding that there was a low or lower than average degree of visual similarity between the mark applied for and all of the earlier marks. Secondly, the Board of Appeal found that there was very little ‘phonetic distance’ between the word elements ‘bic’ and ‘big’, but that the signs at issue differed in the word elements ‘euro’ and ‘banco’. It concluded that the phonetic similarity of those signs was below average. That reasoning must be upheld. First of all, the word elements ‘banco’ and ‘euro’ are phonetically different. Next, they are positioned at the beginning of the signs at issue and are longer in the number of letters and syllables than the elements which they precede. Lastly, as is apparent from paragraphs 84 to 89 above, they must be taken into account in the comparison of the signs at issue despite the fact that they have a weak distinctive character. It is true that the applicant claims that the phonetic similarity of the signs at issue is high or, at the very least, above average. It relies in that regard on a phonetic expert report drawn up by two professors at the Faculty of Letters of the University of Lisbon which highlights the strong possibility of confusion between the sound ‘c’ (in the word element ‘bic’) and the sound ‘g’ (in the word element ‘big’) at the end of a word. However, it should be noted that the Board of Appeal itself acknowledged the existence of a very slight phonetic difference between the last letters ‘c’ and ‘g’ of the word elements ‘bic’ and ‘big’, but, as is apparent from paragraphs 94 and 95 above, that it did not err in holding, in essence, that that finding could not call into question the finding that there was a lower than average degree of phonetic similarity between the signs at issue. Thirdly, the Board of Appeal took the view that, conceptually, neither of the signs at issue had a meaning as a whole and that the word elements ‘euro’ and ‘banco’ evoked different concepts. The applicant, for its part, submits that the conceptual similarity of the signs at issue is above average since the word elements ‘euro’ and ‘banco’ both relate directly to money and are associated with banking activities. According to the case-law, conceptual similarity means that the signs at issue coincide as to their semantic content (judgment of 27 February 2020, Knaus Tabbert v EUIPO – Carado (CaraTour) , T‑202/19, not published, EU:T:2020:75 , paragraph 68). In the present case, the signs at issue have no meaning as a whole, as the Board of Appeal found. It was also correct to hold that the word elements ‘euro’ and ‘banco’ of the signs at issue evoked different concepts. The word element ‘banco’ clearly refers to the concept of ‘bank’, whereas, in the sense indicated in paragraph 51 of the contested decision, the word element ‘euro’ could be associated with the word ‘European’ and could thus be understood as alluding to the geographical origin or the scope of the goods and services at issue, namely the European continent or even the European Union. In that regard, as EUIPO notes, even if part of the relevant public understands the word element ‘euro’ as referring to the currency of the same name, the link between that element and the word element ‘banco’ is not sufficient for it to be possible to conclude that the signs are conceptually similar. The fact that a bank’s activities relate in particular to the management of money does not lead to the conclusion that the relevant public will directly establish a link between those two concepts, since the first is likely to refer more to the geographical concept of ‘Europe’ rather than to the currency ‘euro’. Consequently, no error was made by the Board of Appeal in the visual, phonetic and conceptual comparison of the signs. The global assessment of 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 (judgment of 18 December 2008, Les Éditions Albert René v OHIM , C‑16/06 P, EU:C:2008:739 , paragraph 46). It must be held that, in its global assessment of the likelihood of confusion, the Board of Appeal did not err in finding that there was no likelihood of confusion between the marks at issue. As is apparent from the grounds set out in paragraphs 62 to 103 above, it was fully entitled to find that the level of attention of the relevant public was high for the goods and services covered by the marks at issue, that the signs at issue had at most a low or below average degree of visual similarity and a lower than average degree of phonetic similarity, and that they were conceptually different, and that, in essence, the similarity or identity of the goods and services at issue and the possible enhanced distinctiveness of earlier mark No 512902 acquired through use had no effect on that finding. None of the applicant’s arguments can call into question that global assessment of the likelihood of confusion. First, for the reasons set out in paragraphs 21 to 23 above, it must be held that the applicant cannot reasonably criticise the Board of Appeal for not having taken account of the fact that the use of the marks BANCO BIC ‘firmly established’ the word element ‘bic’ in the mind of Portuguese consumers as a separate element. Secondly, the applicant submits that, contrary to what the Board of Appeal stated, consumers are not necessarily more attentive to marks in the form of acronyms, that a large majority of them will not make a link between the acronym ‘bic’ and the highly technical term ‘Bank Identifier Code’ and that, without a trade name attached to that acronym, they will confuse it with the acronym ‘big’. It thus takes the view that the perception of the marks as acronyms will rather enhance the likelihood of confusion. However, the Board of Appeal did not err in finding that consumers were more attentive when confronted with marks which they perceive as acronyms. In such a situation, they will tend to look for the meaning of such marks. Therefore, contrary to what the applicant claims, the fact that consumers will perceive the meaning of the acronym ‘big’ as being that of the corporate name Banco de Investimento Global, but will not understand the meaning of the acronym ‘bic’, will rather have the effect of differentiating those two word elements. Consumers will perceive the differences in the letters between them more easily. Thirdly, the applicant is wrong to claim that the Board of Appeal found that earlier mark No 512902 had weak inherent distinctiveness and that it also disregarded the fact that that mark had acquired a particularly distinctive character as a result of its earlier use. The Board of Appeal did not at any time find that earlier mark No 512902 had weak inherent distinctiveness. It merely found that the word element ‘banco’ was weakly distinctive. It is apparent from all of its reasoning that it implied rather that earlier mark No 512902 had an average degree of inherent distinctiveness. Moreover, and in any event, the Board of Appeal, as has been pointed out in paragraphs 53 to 55 above, took into account the possible enhanced distinctiveness of earlier mark No 512902 acquired through use in its assessment, since it clearly stated that that enhanced distinctiveness did not alter its assessment that there was no likelihood of confusion between the marks at issue. In that regard, it must be concluded that that assessment is well founded. The distinctive character of the earlier mark is only one factor among others involved in the assessment of the likelihood of confusion. Consequently, it cannot be ruled out that, even where an earlier mark has acquired highly distinctive character as a result of the use which has been made of it, the relevant public may nevertheless establish with certainty a distinction between the marks at issue. In the present case, even if earlier mark No 512902 has enhanced distinctiveness acquired through use and therefore enjoys broader protection, it should be noted that, in view of the low or lower than average visual similarity of the signs at issue, their lower than average phonetic similarity and their conceptual differences, which have been established in paragraphs 91 to 103 above, the Board of Appeal was correct in finding that there was no likelihood of confusion (see, to that effect, judgments of 8 October 2014, Laboratoires Polive v OHIM – Arbora & Ausonia (dodie) , T‑122/13 and T‑123/13, not published, EU:T:2014:863 , paragraph 63, and of 19 June 2019, Marriott Worldwide v EUIPO – AC Milan (AC MILAN) , T‑28/18, not published, EU:T:2019:436 , paragraph 115). In the light of all of the foregoing, the second plea in law must be rejected as unfounded and, accordingly, 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, it must be ordered to pay the costs in accordance with the forms of order sought by EUIPO and the intervener. In so far as the intervener must be regarded as having applied for the applicant to be ordered also to pay the costs incurred in the course of the proceedings before the Opposition Division and the Board of Appeal, it should be borne in mind that, under Article 190(2) of the Rules of Procedure, costs necessarily incurred by the parties for the purposes of the proceedings before the Board of Appeal are to be regarded as recoverable costs. However, that does not apply to costs incurred for the purposes of the proceedings before the Opposition Division. Accordingly, the intervener’s claim in respect of the costs relating to the proceedings before the Opposition Division, which do not constitute recoverable costs, is in any event inadmissible. As regards the intervener’s claim for costs of the proceedings before the Board of Appeal, it is sufficient to note that, since the present judgment dismisses the action brought against the contested decision, it is the operative part of the contested decision which continues to determine the costs in question (judgment of 21 April 2021, Chanel v EUIPO – Huawei Technologies (Representation of a circle containing two interlaced curves) (T‑44/20, not published, EU:T:2021:207 , paragraph 57). On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders Banco de Investimento Global, SA to pay the costs. Tomljenović Schalin Nõmm Delivered in open court in Luxembourg on 2 March 2022. E. Coulon M. van der Woude 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